R v Rotherham Metropolitan Borough Council, ex parte Clark and others; Court of Appeal (Lord Bingham, Lord Chief Justice, Lord Justice Morritt and Lord Justice Buxton) 20 November 1997
The Court of Appeal dismissed the appeal of Rotherham Metropolitan Borough Council against the decision of Mr Justice Collins that its admissions policy in relation to secondary schools was unlawful.
James Goudie QC and Marc Beaumont (Hickmots, Rotherham) for the applicants; Philip Engelman (Council Solicitor) for the local authority.
Lord Justice Morritt said that the single short issue for determination on the appeal depended upon the true construction of section 411 of the Education Act 1996. The material parts of section 411 were:
(1) A local education authority shall make arrangements for enabling the parent of a child in the area of the authority - (a) to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions, and (b) to
give reasons for his preference. (2)
Subject to subsection (3) . . . a local education authority and the governing body of a county or voluntary school shall comply with any preference expressed in accordance with arrangements made under subsection (1). (3) The duty imposed by subsection (2) does not apply - (a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources . . .
The local authority had written, in October 1996, to parents of children due to move from primary to secondary schools in the following school year:
I write to inform you that your child . . . will be allocated a place at . . . school with effect from the beginning of the school year 1997/8. The school named is your catchment area school. If you are happy with this allocation then you need take no further action. If, for any reason, you
would prefer your child to attend a
different school then you must take the following action as soon as possible. Attached to this letter is a booklet . . . which gives details of the authority's admissions policy. You will need to complete the parental preference form on page 17 . . . and return it . . .
It was the evident purpose of the legislation to give primacy and effect to parental choice save insofar as to do so would "prejudice the provision of efficient education or the efficient use of resources". If the allocation of a place to a child living within the catchment area whose parent had not responded necessitated refusing a place to a child who lived outside it, but whose parent had expressed a preference for the school, then the reason why the preference of the latter was not complied with had nothing to do with prejudice to efficient education or efficient use of resources.
Section 411(2) and (3) presupposed that the expression of a preference was a positive act. In ordinary English a failure to respond was not an expression of anything. It followed that the arrangements made by the local authority did not enable the parents to express a preference as required by section 411(1). Moreover, they did not enable a parent whose child lived within the catchment area, and who failed to respond to the letter to give any reasons. That was another reason why the policy adopted by the local authority failed to comply with section 411(1).