Inadequate Consultation & Other Public Law Pitfalls for Academies

Despite the rhetoric about autonomy, independence from state control and privatisation, academy trusts are still treated as quasi-public bodies for some purposes in the eyes of the law. Consequently, they are subject to various public law duties in the way they carry out their public functions. Unlike their specific duties derived from legislation such as the Academies Act 2010, Charities Act 2011 or Companies Act 2006, many of these duties are not written down in black and white. Instead, they are derived from principles of administrative law developed by the Courts over many decades. This lack of clarity means it can be difficult for trustees and governors to understand precisely what the law requires in this area. This is a developing area of the law in the context of academy trusts, particularly as the prospect of more enforced academisation polarises views and seems likely to encourage more protest and challenge to the activities of academy trusts. It is important that trustees and governors understand what the public law pitfalls for academies are to avoid falling into the traps. In this series of posts I will be examining what these duties are and how to stay compliant.

What is public law?

Public law is a body of long-established rules and principles used to check and challenge the decisions and policies of public and quasi-public bodies (such as housing associations or NHS trusts). The Courts have found that academy trusts are subject to public law because (a) they are carrying out functions of public nature (b) they derive their legal existence from statutory powers vested in the Secretary of State and (c) they are funded mainly from state resources. Consequently, their decisions and actions may be susceptible to judicial review in the Administrative Court. The courts will not intervene lightly in decisions of public and quasi-public bodies. Claims for judicial review follow a specific procedure – there is a strict time limit of 3 months from the date of decision being challenged (and the claimant must act promptly). The claimant must comply with the pre-action protocol before issuing a claim. He must obtain permission from the court to bring the claim. A judge will determine if there is an arguable case at a preliminary hearing, usually based on written evidence alone at this stage. If the court grants permission to proceed, the second stage of the proceedings will then go on to consider the merits of the claim. If the claim is successful the court can make various orders – it can strike down the public body’s decision, it can issue a declaration that the decision is wrong and require the decision-maker to re-consider the issue. Although pursuing a case is likely to require a budget of several thousand pounds, which can be a significant deterrent, legal aid may be available for certain types of claims if the claimant is in receipt of means-tested benefits, a very low income or is a child, and it is becoming increasingly common for well-organised action groups to crowd-fund their case. Litigants may also protect themselves against the risk of having to pay the winning side’s costs if they lose by applying for a Protective Costs Order.

Public law duties

Public bodies must act within their powers and in a fair and reasonable way when dealing with service users and the public. In the context of academies, that means duties towards parents, pupils staff and the wider community. Public bodies must reach fair, rational and reasonable decisions about the rights and entitlements of their service users. If they don’t comply, their decisions can be subject to complaints, challenges before regulators (such as OFSTED or OFQUAL) adjudicators (e.g. the Schools Adjudicator for admission issues), the Education Funding Agency and ultimately court claims for judicial review. Judicial review proceedings are a way of challenging the decisions of public bodies on the basis that the decision-making process adopted by them is so seriously flawed as to be unlawful.

The principle that academy trusts are subject to public law duties and that their decisions can be challenged by a claim for judicial review was established in a case concerning a challenge to the admission arrangements of a City Technology College (the precursors to academy trusts) in South East London in 1995

[1]. Admission arrangements at the Harris Academy in Crystal Palace were found to be capable of challenge by way of judicial review in a case in 2011.[2] Whilst it is clear that the education functions of an academy trust are amenable to judicial review, it is less clear whether its other functions, such as delivery of non-statutory services or decisions to enter into commercial contracts could be subject to review in this way. In a challenge to the decision of Camden Council to establish a new academy in 2009, the claimant Mrs Chandler argued that the decision to select a new academy sponsor should have been subject to an open competition.  Although the challenge failed on the merits, the Court of Appeal acknowledged that an ordinary citizen might, in appropriate cases, have a public law claim for failure of a public body to comply with the public procurement rules (which requires contracts to be advertised and open to competition)[3].

Sound decision-making is vital

In the context of academies, the decisions which have a public law aspect are likely to be taken by the academy trust board, or occasionally the Chief Executive or Executive Headteacher of a MAT, acting under delegated powers. The usual line of attack against decisions or actions by a public body is to allege one or more of the following defects in the decision:

  • Irrationality or unreasonableness– the decision is so outrageous or absurd that no reasonable person would have made it, or alternatively the decision-maker has failed to ask itself the right question, failed to make proper enquiry into the facts, has not taken into account relevant factors, or has taken into account irrelevant considerations. Linked to this is a growing doctrine of proportionality: the action taken by a public body must be appropriate, necessary, and not go beyond what is necessary to achieve the objective[4]. Heavy-handed decisions which deprive someone of a fundamental right are particularly susceptible to review under this principle.
  • Illegality – the decision-maker must understand the law which regulates them. A public body may have acted outside of its powers (known as ‘ultra vires’) – those powers may be set out in legislation or in the governing document (Articles of Association); the body has failed to comply with a duty set out in a particular statute e.g. the requirement to make SEN provision under the Children and Families Act 2014; the body has unlawfully fettered its discretion – e.g. by adopting a blanket policy on an issue without considering the merits of each individual case; the body has failed to provide adequate reasons for its decision; the decision maker has unlawfully delegated its decision-making to another party when it should have taken the decision itself (for example, an unlawful scheme of delegation).
  • Procedural impropriety – this a defect in the process of decision-making, which breaches the rules of fairness and natural justice: this could include bias from the decision-maker because of an obvious conflict of interest, failure to give someone a ‘fair hearing’ to put forward their arguments, acting inconsistently in two or more similar situations, breach of a legitimate expectation (express or implicit promises made to people, which the decision maker then goes back on; or failure to consult before making an important decision (see more on this later).
  • Breach of Human Rights – failure to respect the European Convention Rights brought into UK law by the Human Rights Act 1998. It has become increasingly common for these grounds to be added into a claim, such as the right not to be discriminated against, right to freedom of expression, right to education, right to private and family life. In this context, the courts often apply a proportionality test – i.e. they have to weigh up the interests of the wider community and the legitimate aims of the state as against the protection of an individual’s rights and interests.

All this points to the need to think about the public law implications of decisions, policies and major changes implemented by an academy trust to avoid public law pitfalls. Examples of the kind of issues which could become contentious include, changing admission arrangements, a decision to merge or amalgamate schools, changes to SEN provision, uniform policies, school meals arrangements.

An interesting question which has yet to come before the courts is whether parents and pupils might use judicial review proceedings to force an academy trust to comply with certain provisions in their Funding Agreement which might be capable of conferring rights on third parties (for example, Clause 2.10 which requires the academy to be ‘all ability and inclusive’, to make available places for children with SEN (Annex para 9), to provide free milk (2.16) and to provide minimum pension benefits for staff (2.7). During debates on the Academies Bill in 2010 the Minister Lord Hill said “I am happy to confirm that parents have always had the power to seek judicial review against either the academy trust for failing to follow its contractual obligations [under the Funding Agreement] or the Secretary of State for failing to ensure that the academy complies with its obligations under the Funding Agreement[5]”. We may in future see claims based on the premise that pupils and parents have a ‘legitimate expectation’ that the terms of the Funding Agreement will be complied with.

Next time we will consider the crucial importance of conducting a fair consultation process when considering new or significant changes to academy arrangements.

[1] R v Governors of Haberdashers’ Askes Hatcham College Trust ex parte T [1995] ELR 351

[2] R (Omotosho) v Harris Academy Crystal Palace 2011 EWHC 3350, per Singh J at para 6

[3] R (Chandler) v London Borough of Camden 2009 EWCA Civ 1011 at para 77

[4] See for example, Pham v Home Secretary [2015] UKSC 19, per Lord Mance at para 96.

[5] Hansard 7 July 2010 Vol 720

Mark Johnson is a highly experienced independent solicitor & chartered company secretary helping schools and academies with conversions, creation of MATs, legal and governance issues. We can help your academy to flourish. Find out more at

If you would like to be kept up to date on more topics like this, sign up to receive our regular newsletter.