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