DfE Agrees to Review its Guidance following Judicial Review Application

1 November 2016 was to have provided an opportunity to obtain formal guidance on the approach which the Department for Education takes towards its own guidance with the hearing of the Application for Judicial Review by the AoC and Havering Sixth Form College. In March the DfE issued guidance outlining criteria which academies are expected to meet when opening new sixth forms. The guidance provided that applications should normally be put forward only by schools rated good or outstanding by Ofsted, which offer a broad range of A level subjects and expect to enrol 200 more students. It was therefore somewhat surprising, given the DfE's guidance that following an application by the Loxsford Trust, the DfE approved an application for the creation of a new sixth form. The school, Abbs Cross, which is part of the Locksford Trust was, at the time of the application in special measures and the local data showed that there was a decline in demographic in the area with the result that there would be around 460 fewer 16 to 18 year olds in the area by 2019.

The DfE's approval of the sixth form was challenged by the AoC and Havering Sixth Form College by way of Judicial Review. The hearing of the Judicial Review was due to take place on 1 November but at the last minute the Loxsford Trust asked the DfE to reverse its decision, recognising that the consultation with the local authority had not been adequately conducted. As a result, the DfE withdrew its decision to approve the new sixth form.

Whilst the settlement out of Court prevented any guidance from the Court as to how the DfE should comply with its own guidance, the whole process has clearly put a spotlight on decisions which are made by Regional Schools Commissioners and the importance of DfE following its own guidance in this area. As a result of the application for Judicial Review, the DfE has now agreed to review their guidance and how decisions are reached.

One likely outcome is that there should be more certainty - where guidance has been provided, it should be followed. Whilst certainty is more often than not a good thing, the flip side is that where schools or colleges wish to conduct themselves in a way which does not quite follow the guidance, they may have an uphill struggle in trying to persuade the DfE to approve their proposals.

We now have to wait and see what the DfE's review of the guidance will bring out, but hopefully it will ensure that decisions taken maintain the quality and viability of post 16 education.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.