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High Court allows Downhills Primary School to be converted into an Academy

August 15th, 2012 by Joanne Clement

Mr Justice Kenneth Parker has this morning refused permission to apply for judicial review in R (Moyse) v Secretary of State for Education. The claimant, a parent, challenged the Secretary of State’s decision to convert Downhills Primary School into an Academy from this September.

The background to the claim is that Mr Gove made an Academy order in March and identified his preferred sponsor (the Harris Federation). The Governing Body (an interim executive board) then carried out a consultation exercise on whether or not the school should convert to academy status from 1 September 2012. Mr Gove decided on 20 June  to convert the school using his powers of intervention, which arise where a school has been assessed by Ofsted as requiring “significant improvement” or (as in this case, following an Ofsted report in early 2012) “special measures”. He entered into a funding agreement with the Harris Federation. The claimant issued a claim on 19 July, asking the Court to grant permission to apply for judicial review and, further, to stay the conversion of the school (which would otherwise go ahead on 1 September) pending the outcome of the proceedings.

The claimant raised four grounds of challenge, alleging that:

-          the requirement that, prior to conversion, there is a consultation under section 5 of the Academies Act 2010 had not been fulfilled, since the governing body which conducted the consultation had not reached its own decision on whether conversion should take place;

-          the consultation process had been unfair because parents had not been given an opportunity to formulate an alternative proposal;

-          the Secretary of State had, in reaching his decision, not complied with section 9 of the Education Act 1996, which requires regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and the avoidance of unreasonable public expenditure; and

-          the Secretary of State had asked himself the wrong question, by focusing on the school’s historic performance instead of its likely performance in the future should it continue to be maintained by the local authority.

Mr Justice Kenneth Parker refused permission to apply for judicial review, deciding that the claimant’s grounds were unarguable.

The Secretary of State was represented by Clive Sheldon QC and Patrick Halliday of 11KBW.  Rachel Kamm, also of 11KBW, represented the governing body (an interim executive board) which was an interested party.