Law Report: Boys' places in grant-maintained school relevant: Regina v Birmingham City Council, Ex parte Equal Opportunities Commission. Court of Appeal (Lord Justice Neill, Lord Justice Woolf and Lord Justice Butler-Sloss). 14 October 1992

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A local education authority, when securing that sufficient schools are available for providing secondary education and ensuring, under its duty not to discriminate on the ground of sex, there is no unlawful sexual discrimination in the provision of places for boys and girls in selective secondary schools, is obliged to take account of the availability of places provided by grant-maintained schools within its area.

The Court of Appeal dismissed an appeal by Birmingham City Council, from the Queen's Bench Divisional Court's decision on 17 February 1992, that the council, in performing its duty under the Education Act 1944 and the Sex Discrimination Act 1975, was obliged to take account of places at the Handsworth Grammar School for Boys.

Section 8 of the 1944 Act provides: 'It shall be the duty of every local education authority to secure that there shall be available for their area sufficient schools . . . for providing secondary education, that is to say, full-time education suitable to the requirements of senior pupils.'

Section 23(1) of the 1975 Act provides: 'It is unlawful for a local education authority, in carrying out such of its functions under the Education Acts 1944 to 1981 . . . to do any act which constitutes sex discrimination.'

In 1987, eight selective secondary schools which were single-sex schools were maintained by the council as the local education authority; 390 places were available for boys at the age of 11 in selective grammar schools. There were only 210 places available for girls. Girls were required to obtain a higher test mark to obtain entry to a girls' selective school than boys to obtain entry to comparable schools.

The council had limited powers to change the character of seven schools which were voluntary schools, where the governors had a large measure of autonomy.

The EOC brought judicial review proceedings which resulted in the decision of the House of Lords (1989) AC 1155 that the council's arrangements for the provision of selective secondary education were unlawful in that they discriminated against girls on the ground of sex.

The council then considered how to comply with the law. Its preferred option was to cease to maintain one of the boys-only selective schools admitting 11 plus. Handsworth Grammar was identified as the school to be closed.

Handsworth acquired grant- maintained status under the Education Reform Act 1988, with effect from 1 January 1991. The council's duty to maintain the school was extinguished. The school would be maintained by grants from the Secretary of State for Education who might recover from the council sums expended on maintenance in accordance with section 81 of the 1988 Act.

The council took the view that part of the imbalance in places for girls was removed because the 120 places for boys at Handsworth would be taken out of the equation once Handsworth achieved grant-maintained status. However, the EOC took the contrary view, applied for judicial review and was granted a declaration that the council was obliged to take account of the places at the Handsworth school.

Michael Beloff QC and Richard McManus (Sharpe Pritchard for the City Solicitor) for the council; Anthony Lester QC and David Pannick QC (Legal Adviser, EOC) for the EOC.

LORD JUSTICE NEILL, giving the judgment of the court, said it recognised the problems which the 1975 Act posed for the council. However, the court was concerned with the proper interpretation of section 8 of the 1944 Act. It was not necessary in the present case to reach a final conclusion with regard to independent schools.

However, in considering whether sufficient schools were available, the local education authority had to take account, and only take account of places which were available free. The relevant 'pool' was the pool of free places in single-sex schools providing a grammar school education. That pool might include assisted places at independent schools, but certainly included grant-maintained schools.

The duty of securing that sufficient schools were available for providing secondary education of a suitable kind was a different duty from a duty to provide such schools. The council's appeal would be dismissed.

Attention should be drawn to some of the problems which remained. The Sex Discrimination Act and comparable legislation in the field of race relations required close examination when the duties and obligations of bodies responsible for the provision of public sector education were being formulated.

If and when further legislation in the field of education was being considered, it was important that account should be take of: (a) the fact that both the Secretary of State for Education and the local education authority retained under the present legislation some overall responsibilities for public sector education as a whole; (b) the fact that the discrimination with which a court would be likely to be concerned would be discrimination against an individual boy or girl, or groups of boys of girls.

Amendments should be introduced to enable the elimination of discrimination to take place in accordance with a suitable and sensible timescale. The disparities would be likely to vary from year to year and be due to factors over which the authorities could not possibly exercise control. It might therefore be right to provide that unlawful discrimination could only be proved if over a period a pattern of discrimination could be established.

The impact of civil rights legislation in the field of education should be looked at comprehensively as a matter of urgency.