An education in the risks of pre-empting someone else’s consultation
Usually consultation related cases in the courts tend to be fairly straightforward. The facts and complaints being made will be to the point and normally revolve around one or two identifiable flaws or alleged flaws with the consultation process. Occasionally, we see a case that is significantly more complicated, either due to unusual facts or to a lot of separate claims being made. We saw one such case a couple of weeks ago with R (Bloomsbury Institute) v Office for Students, which we wrote about here. Now we have another one to add to that particular canon, strangely another education case. In this one though, the key point was not the consultation itself, but the pre-emption of a consultation by a separate non-consulting body.
In 2019, Somerset County Council was undertaking a review of education provision in the Crewkerne and Ilminster areas of Somerset, in line with their statutory duties under the Education Act 1996. Within this area there were two middle schools (Somerset being one of the counties where a three-tier school system is still run), one of which was an academy, and the other of which was Swanmead Community School. The council review received an initial report and options appraisal, which recommended a two-phase consultation process on the various options, a process that it was decided would run between 26th August and 8th November.
In parallel and separate to this, an application had been made by Shortmead School to the Commissioner for an academy order which would allow Shortmead to become an academy and join the Bridgwater College Trust. In light of the review, the Council wrote to the commissioner asking her to defer making a decision on the application until the review had been concluded. The Commissioner agreed, but highlighted the need to balance the timeliness of the academy order with the determination of the options that came out of the review.
The application for academy status was first considered on 10th June by the Commissioner, and were initially rejected (for reasons unconnected to the review), being reconsidered on 16th September, where it was given approval. Between these two dates, the phase 1 consultation was ongoing, being due to close at the end of August, with the whole consultation process being due to finish (according to the initial report) on 8th November.
Not an easy case to follow, and that is the simplified version, without the many additional uncertainties and evidential disputes that appear throughout this case. So what were the key issues at hand? Six grounds were advanced, four of them relevant to us:
- That the Commissioner failed to have regard to the prejudicial impact of her decision on the Council review process;
- Alternatively, that the Commissioner wrongly concluded that there would be no effect on the council review process, or that she did not sufficiently inquire as to the impact;
- That the Commissioner did not have regard to the Council’s preference for a single Multi-Academy Trust
- Grant of the academy order for an improper purpose by thwarting the review, or not having regard to the public interest by undermining the whole area solutions being considered in the review
On the first two grounds, the judge concluded in favour of the Council. The Commissioner, he said, in spite of their arguments that the review process had been central to their decision to make the academy order, had not addressed the prejudicial impact of their decision on the review at all. He agreed with the defendants that there had been no recognition or engagement with the review at all in communications between the council, the Commissioner and the Bridgwater College Trust. Further he argued that even if he was wrong on the first ground, the second ground also fell in the Council’s favour because the need to change the entire structure of education within the area necessarily involved all schools in that area, and that the defendant’s expressed hope that the Multi-Academy Trusts would work co-operatively with the Council to achieve this were merely aspirations and not supported by the evidence.
The judge also, in his engagement with these arguments, discussed the Tameside duty of inquiry, set out in it’s original case as “Did the [decision maker[ ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?” In this case, although the Commissioner knew about the review and consultation, they concluded that it was not relevant to their decision. The judge strongly disagreed.
The third ground was dismissed by the judge, on the grounds that although the Council had expressed preferences for what they described as a single multi-academy trust solution across the area, whether or not schools became academies was a matter for the schools themselves. If they did not apply to the commissioner, then the preference of the Council was too all intents and purposes irrelevant and therefore did not render the Commissioner’s decision unlawful.
On the fifth ground (the fourth of our ‘relevant grounds’ here), the defendants accepted that they had to exercise their duties in accordance with both the Academies Act 2010, and the Education Act. This acceptance rendered the challenge by the Council more difficult to make out as it imposed a high bar, namely that the Commissioner in making the decision had ‘utterly defeated’ the statutory duties of the Council. The judge interpreted this as meaning that it would have had to “prevent education in the area” for the Council to succeed, although he acknowledged that some of the basic building blocks for the council to succeed were there. In light of this, he concluded that this ground failed.
So what does all this mean for consultors and decision-makers? For decision-makers, it highlights the importance of knowing the context in which you are operating, and being sensitive in the exercise of your duties in light of other ongoing consultations that might have an impact on how you exercise your duties. In this case, the pre-emption of a consultation outcome by a different body lead to the decision-makers decision being judged unlawful.
For consultors, as it was not the consultation process itself under review here, there are perhaps fewer lessons. The value of including a firm timetable in your planning and early consultation documents was handily demonstrated here- by having firm dates in documents, it made it much easier to demonstrate a clear timeline of decision-making and give a firm impression of what precisely the injustice was. The relationships between competing statutory duties were also considered, and the judge delivered a salutary reminder that if you seek to demonstrate that your statutory duties have been actively challenged, there is a very high standard to meet.
Perhaps the single most interesting result of this case, albeit not a particularly earth shattering one came in the consideration of the relationship between the duty to inquire and consultation. In this case, we saw that the duty to inquire upon a decision-maker can extend to waiting for the results of a consultation process before the decision is made, if that consultation process is pertinent to the decision being made.