R v GOVERNORS OF THE BISHOP CHALLONER ROMAN CATHOLIC COMPREHENSIVE GIRLS'S SCHOOL AND
ANOTHER, Ex parte CHOUDHURY
SAME v SAME, Ex parte PURKAYASTHA
HOUSE OF LORDS
 2 AC 182,  3 All ER 277,  3 WLR 99,  2 FLR 444,  Fam Law 23,  2 FCR 507
HEARING-DATES: 6, 7 April, 11 June 1992
11 June 1992
Education -- School -- Parental preference -- Duty to comply -- Oversubscribed Roman Catholic girls' school -- Admission policy giving priority
to Roman Catholic and other Christians -- Hindu and Muslim applicants not fulfilling admission criteria -- Refusal of admission by governors --
Appeal committee dismissing appeal -- Whether school bound by parental preference -- Whether appeal committee's decision correct in law --
Education Act 1980 (c 20), s 6(3)(a) (as amended by Education Reform Act 1988 (c 40), s 30)
A voluntary aided Roman Catholic comprehensive girls' school adopted an admission policy in which the categories for admission were, in order of
priority, baptised Roman Catholics, children of baptised Roman Catholics, practising Christians and other Christians, in the latter two cases giving
priority to those with sisters at the school. The applicants, one a Hindu and the other a Muslim, applied in November 1990, expressing their
preference in accordance with the Education Act 1980, for their respective daughters to be admitted to the school from September 1991. There
were more applicants for admission in September 1991 than could be accommodated without prejudicing the provision of efficient education, and
section 6(3)(a) of the Act provided that the duty to comply with parental preference did not apply where compliance would prejudice the
provision of efficient education or the efficient use of resources. The school governors refused both applications. The appeal committee
dismissed the applicant's appeals, stating that to put any more pressure on a year intake that was up to its capacity would be beyond the
school's resources and detrimental to its ability to provide an efficient education, and that the girls did not meet the admission criteria. In the
second appeal the committee said that the decision had been made in the light of the admission criteria and that they felt "unable" to override
section 6(3)(a). The applicants sought judicial review of the governors' and the appeal committee's decisions. Simon Brown J quashed those
decisions. The Court of Appeal allowed the appeals by the school and the appeal committee.
On appeals by the applicants:
Held, dismissing the appeals, (1) that, on its true construction, section 6(3)(a) of the Act of 1980 had to be given a literal meaning; that where
a school was over-subscribed compliance with the preference of all the applicants would necessarily prejudice efficient education, and in such
circumstances the school had to have an admissions policy, which would inevitably result in defeating the preference of some applicants,
whatever criteria were adopted; and that, accordingly, since the school was over-subscribed, there was no duty on the governors to give
effect to the applicants' preferences.
(2) That, on the assumption that the correct approach for an appeal committee was to determine whether compliance with parental preference
would prejudice the provision of efficient education and, if so, to balance the advantages of complying with such preference against the
prejudice caused by so doing, the decisions of the appeal committee disclosed no error of law (post, pp 100H-101B, 110C-G, 111B-C, H-112A).
Reg v Commissioner for Local Administration, Ex parte Croydon London Borough Council  1 All ER 1033, DC considered.
Decision of the Court of Appeal (1991) 90 LGR 103 affirmed.
Reg v Commissioner for Local Adminstration, Ex parte Croydon London Borough Council  1 All ER 1033, DC
Reg v Shadow Education Committee of Greenwich London Borough Council, Ex parte Governors of John Ball Primary School (1989) 88 LGR 589,
Pretty v Solly (1858) 26 Beav 606
APPEALS from the Court of Appeal.
These were appeals by the applicants, Abdul Malik Choudhury and Nitya Ranjan Purkayastha, by leave of the Court of Appeal, from an order
dated 6 November 1991 of that court (Balcombe, Taylor and McCowan LJJ) (1991) 90 LGR 103, allowing appeals by the respondents, The Bishop
Challoner Roman Catholic Comprehensive Girls' School ("the school") and the appeal committee of the school, against orders dated 31 July 1991
of Simon Brown J.
Each applicant had applied for his respective daughter to be admitted to the school in September 1991, thus expressing their preference in
accordance with the appropriate arrangements under the Education Act 1980. They were informed by the school's governors that each
daughter had been refused a place because "she did not meet any of the admission criteria." Their appeals to the appeal committee were
dismissed. Their motions for judicial review of the governors' decisions and dismissal of appeals were allowed by Simon Brown J.
The facts are stated in the opinion of Lord Browne-Wilkinson.
John Howell for the applicants; Bruce Coles QC and Andrew Thompson for the respondents.
Their Lordships took time for consideration. 11 June
PANEL: Lord Keith of Kinkel, Lord Templeman, Lord Ackner, Lord Goff of Chieveley, Lord Browne-Wilkinson
JUDGMENTBY-1: LORD KEITH OF KINKEL
LORD KEITH OF KINKEL: My Lords, I have had the opportunity of reading in draft the speech to be delivered by my noble and learned friend, Lord
Browne-Wilkinson. I agree with it, and for the reasons he gives would dismiss this appeal.
JUDGMENTBY-2: LORD TEMPLEMAN
LORD TEMPLEMAN: My Lords, for the reasons given by my noble and learned friend, Lord Browne-Wilkinson, I would dismiss this appeal.
JUDGMENTBY-3: LORD ACKNER
LORD ACKNER: My Lords, for the reasons given by my noble and learned friend, Lord Browne-Wilkinson, I would dismiss this appeal.
JUDGMENTBY-4: LORD GOFF OF CHIEVELEY
LORD GOFF OF CHIEVELEY: My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord
Browne-Wilkinson. I agree with it, and for the reasons which he gives I, too, would dismiss both appeals.
JUDGMENTBY-5: LORD BROWNE-WILKINSON
LORD BROWNE-WILKINSON: My Lords, this case raises the important question whether the governors of a voluntary aided school which is
over-subscribed (ie has more candidates for admission than it can accommodate) is entitled to operate an admissions policy which gives
preference to children of a particular religious persuasion notwithstanding the statutory provisions which give parents a right to send their
children to the school of their choice.
The statutory provisions imposing the duty to give effect to parental preference are contained in section 6 of the Education Act 1980, as
amended by section 30 of the Education Reform Act 1988. Section 6(1) requires the local education authority to make arrangements enabling
parents to express a preference as to the school which their child is to attend. Section 6(2) imposes a duty on the local education authority
and the governors of a voluntary aided school to comply with such preference. But subsection (3) then provides that such duty shall not apply
in three sets of circumstances. It provides:
"(3) The duty imposed by subsection (2) above does not apply -- (a) if compliance with the preference would prejudice the provision of efficient
education or the efficient use of resources; (b) if the preferred school is an aided or special agreement school and compliance with the
preference would be incompatible with any arrangements between the governors and the local education authority made under subsection (6)
below; or (c) if the arrangements for admission to the preferred school are based wholly or partly on selection by reference to ability or aptitude
and compliance with the preference would be incompatible with selection under the arrangements . . . (6) A local education authority shall, if so
requested by the governors of an aided or special agreement school maintained by the authority, make arrangements with the governors in
respect of the admission of pupils to the school for preserving the character of the school; and the terms of any such arrangements shall, in
default of agreement between the authority and the governors, be determined by the Secretary of State."
Shortly stated, the main issue is whether a school which is over-subscribed so that it cannot accept all the applications for admission can adopt
religious criteria (ie criteria intended to preserve the character of the school) in selecting the successful applicants for admission and thereby
exempt itself under section 6(3)(a) from the duty under section 6(2) to give effect to the preferences expressed by parents whose children do
not meet such criteria.
In the present case, the voluntary aided school in question, The Bishop Challoner Roman Catholic Comprehensive Girls' School in the London
Borough of Tower Hamlets, adopted the following admission policy:
"Bishops Challoner is a Roman Catholic school. We expect all parents to support our aims fully and to uphold our Catholic ethos. The school
admits pupils in accordance with the following criteria in order of priority: 1. Baptised Catholics. 2. Children of baptised Catholic parent/s. 3.
Practising Christians. Priority will be given to those with sisters at the school. 4. Other Christians. Priority will be given to those with sisters at
It is common ground that in the year starting September 1991 the school had more applicants for admission than it could accommodate without
prejudicing the provision of efficient education. The appellants ("the applicants") are the parents of two girls, one a Hindu the other a Muslim. In
November 1990 each of the applicants expressed a preference that his daughter should be educated at the school. Their applications were
refused on the grounds that they did not meet the admission criteria. Both appealed to the appeal committee established under the Act of
1980. On 6 June 1991 both appeals were dismissed.
Each of the applicants applied for judicial review of (a) the refusal of the governors to admit his daughter to the school and (b) the decision of
the appeal committee. All four applications were heard by Simon Brown J who quashed all four decisions. The Court of Appeal (Balcombe, Taylor
and McCowan LJJ) reversed his decision and upheld all four decisions. The applicants appeal to this House.
The main issue on the appeal is the validity of the governors' decisions not to admit the applicants' daughters. The secondary issue, which only
arises if the applicants fail on the main issue, is the validity of the decisions of the appeal committee: I will deal separately with the secondary
The main issue
Before turning to consider the statutory provisions imposing the duty to give effect to parental preference, it is necessary first to consider the
character of voluntary aided schools and the general law affecting admissions to such schools apart from the statutory duty imposed by section
6(2) of the Act of 1980.
Voluntary aided schools
Voluntary aided schools are schools maintained, but not established, by the local education authority. There are approximately 5,000 such
schools, virtually all of which were established by religious foundations. The majority were established by the Church of England and the Roman
Catholic Church but others were established by, for example, the Methodist Church and the Jewish community. In 1991, there were 701,000
pupils being educated in Roman Catholic schools of whom only 11.5 per cent were non-Catholics.
The whole expense of maintaining a voluntary aided school is paid by the local education authority except for the expense of providing, altering
and carrying out certain repairs to the school buildings which expense is borne by the governors: section 15(3) and 114(2) of the Education Act
1944. However, the Secretary of State bears a substantial proportion of the expense for which the governors are responsible: see, for example,
section 102 of the Act of 1944. Therefore voluntary aided schools are in effect a kind of partnership: the premises are provided and to an
extent kept up by the religious or other body which established them whilst the cost of running the schools is borne by the public purse.
Voluntary aided schools are governed by an instrument of government (constituting the governing body) and articles of government (regulating
the way the school is to be governed) both of which are made by the local education authority: section 1 of the Education (No 2) Act 1986.
Section 1(5) provides that the instrument of government and articles of government must comply with any trust deed relating to the school.
Bishop Challoner School
The school was established in about 1930 jointly by the Union of the Sisters of Mercy Trustees and the Roman Catholic Diocese of Westminster.
The original trust deed cannot be traced but a more recent trust deed dated 1 October 1984 provides that the trustees are to hold the trust
property, comprising the premises of the school and any additional site that may be acquired, for the purposes of a Roman Catholic Voluntary
Aided School to be conducted in accordance with the Education Acts. Clause 8 of the trust deed provides that "the religious instruction and
religious worship shall be in accordance with the tenets teaching and practice of the Roman Catholic Church."
The instrument of government made by the local authority under section 1 of the Act of 1986 recites:
"The school is in the trusteeship of the Westminster Roman Catholic Diocese trustee and its overall ethos is that of a Roman Catholic school
committed to religious beliefs, morality and behaviour in accordance with the teaching and practices of the standards of the Roman Catholic
Article 5 provides:
"The arrangements for the admission of pupils to the school shall be determined by the governing body, subject to sections 6 to 8 of the Act of
1980, section 26 of the Act of 1988 and to paragraph 5.3."
Admissions policy generally
It is common ground that it is for the governors of a voluntary aided school to decide who is to be admitted as a pupil and to lay down the
admissions policy of the school. This is expressly provided by article 5 of the articles of government.
Section 8(2) and (3) of the Act of 1980 requires the governors to publish annually particulars of "the arrangements for the admission of pupils to
the school." Such particulars must include, amongst other things, the number of pupils it is intended to admit and "the policy followed in deciding
admissions." This Act therefore recognises the need for, and positively requires, the governors to formulate an admissions policy. It appears that
under the Act of 1980 the content of that policy was entirely a matter for the governors, subject of course to the requirements of section 6 of
the Act of 1980.
Under section 33 of the Act of 1986, the governors are required to consult the local education authority annually as to whether the admissions
arrangements are satisfactory and also to consult with the local education authority before determining, or varying, any of them.
Under section 26 of the Act of 1988, the governors are required to admit not less than "the relevant standard number." Nothing turns on the
statutory definition of those words: it is sufficient to note that from 1988 onwards, governors have been bound to admit a minimum specified
number of applicants.
It is clear from these statutory provisions that in general Parliament has not sought to remove the responsibility for formulating admissions policy
from the governors, although requiring admission of a minimum number of pupils and consultation between the governors and the local education
authority as to the contents of the policy. No doubt the governors' admissions policy must be reasonable but apart from the express statutory
provisions in section 6 of the Act of 1980, there is no requirement as to the criteria to be adopted in such policies. It is not clear what is to
happen if the governors and the local education authority differ as to the suitability of the policy adopted by the governors.
Mr Howell accepts that in the present case the governors did consult the local education authority on the admissions policy and that such
policy was a reasonable one for a Roman Catholic school to adopt were it not for the duty to comply with parental preference imposed by
section 6 of the Act of 1980.
Although section 76 of the Education Act 1944 imposed on the local education authority and the Secretary of State (not the governors) the
duty to have regard to "the general principle that . . . pupils are to be educated in accordance with the wishes of their parents," the first
positive duty to give effect to such wishes was contained in section 6 of the Act of 1980. Section 6 of the Act of 1980 was substantially
amended by section 30 of the Act of 1988. I have set out below section 6 as originally enacted, italicising the words deleted by the Act of 1988
and placing the words added by the Act of 1988 in square brackets:
"(1) Every local education authority shall make arrangements for enabling the parents of a child in the area of the authority to express a
preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions and to give
reasons for his preference. (2) Subject to subsection (3) below, it shall be the duty of a local education authority and of the governors of a
county or voluntary school to comply with any preference expressed in accordance with the arrangements. (3) The duty imposed by subsection
(2) above does not apply -- (a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of
resources; (b) if the preferred school is an aided or special agreement school and compliance with the preference would be incompatible with
any arrangements between the governors and the local education authority in respect of the admission of pupils to the school [made under
subsection (6) below]; or (c) if the arrangements for admission to the preferred school are based wholly or partly on selection by reference to
ability or aptitude and compliance with the preference would be incompatible with selection under the arrangements. (4) Where the
arrangements for the admission of pupils to a school maintained by a local education authority provide for applications for admission to be made
to, or to a person acting on behalf of, the governors of the school, a parent who makes such an application shall be regarded for the purposes
of subsection (2) above as having expressed a preference for that school in accordance with arrangements made under subsection (1) above.
(5) The duty imposed by subsection (2) above in relation to a preference expressed in accordance with arrangements made under subsection
(1) above shall apply also in relation to -- (a) any application for the admission to a school maintained by a local education authority of a child
who is not in the area of the authority; and . . . [(6) A local education authority shall, if so requested by the governors of an aided or special
agreement school maintained by the authority, make arrangements with the governors in respect of the admission of pupils to the school for
preserving the character of the school; and the terms of any such arrangement shall, in default of agreements between the authority and the
governors, be determined by the Secretary of State.]"
Section 26 of the Act of 1988 imposed on the governors an obligation to admit a number of applicants being not less than the relevant standard
number. By subsection (9) it is provided as follows:
"For the purposes of section 6(3)(a) of the Act of 1980 (which excludes the duty to comply with a parent's preference as to the school at
which education is to be provided for his child if compliance with the preference would prejudice the provision of efficient education or the
efficient use of resources), no such prejudice shall be taken to arise from the admission to a school in any school year of a number of pupils in
any relevant age group which does not exceed [the number so to be admitted]."
The statutory framework applicable to the applications for admissions made by the applicants in November 1990 can therefore be summarised as
1. In general, it was for the governors to determine the admissions policy at the school after consultation with the local education authority.
Such policy had to be published.
2. The governors were bound to admit a number of applicants being not less than the relevant standard number (which they did).
3. The governors were bound by section 6(2) of the Act of 1980 to give effect to the applicants' preference to have their daughters educated
in the school, unless such duty was disapplied by section 6(3).
4. No "arrangements" had been made between the governors and the local education authority in respect of admissions to the school "for
preserving the character of the school" within the meaning of section 6(3)(b) and (6).
The applicants' contentions
Mr Howell's submissions for the applicants, which Simon Brown J accepted, were along the following lines. First he submitted that under section
6(2) the school owed a duty to comply with the applicants' preference to educate their daughters at the school by admitting them unless that
duty was disapplied by section 6(3). The admissions policy adopted by the school was designed to preserve the character of the school as a
Roman Catholic school. Such a case is dealt with expressly by section 6(3)(b) and (6). But, as is common ground, no arrangements as to
admissions policy for preserving the character of the school had been made between the governors and the local education authority in
accordance with section 6(6). Mr Howell submitted that Parliament having expressly dealt with the case of an admissions policy designed to
preserve the character of the school in subsections (3)(b) and (6), it was not open to the school (even though over-subscribed) to apply such
a policy under section 6(3)(a) in selecting the applicants who were to be rejected. Therefore, he submitted, the governors' decisions were
These arguments were rejected by Taylor LJ in the following passage (1991) 90 LGR 103, 113-114:
"Mr Howell's argument, which found favour with Simon Brown J, seems to me to approach the question from the wrong end. He starts with
section 6(6). That permits (not requires) governors to request the local education authority to make arrangements for preserving the character
of the school and if that happens section 6(3)(b) disapplies parental preferences incompatible with such arrangements. Mr Howell then argues
backwards from this that if a school is over-subscribed so that section 6(3)(a) is in point, there is a duty not to have regard to preserving the
school's character in deciding priorities because the old permissible way of taking that into account is by section 6(3)(b). However, section 6(3)
provides three quite separate grounds for disapplying parental preference. Section 6(3)(a) is quite distinct from section 6(3)(b). The scheme of
the two subsections could be expressed as follows. Firstly, section 6(3)(a): if compliance with all parental preferences would result in
overcrowding then the governors may apply any reasonable criteria to make the necessary reduction in numbers. Those criteria include sibling
priority and geographical proximity. Likewise, in a church school, priorities such as those stated in the admissions policy here can properly be
applied. Secondly, section 6(3)(b): even if the school is not over-subscribed so that section 6(3)(a) does not apply, governors may request the
local education authority to make arrangements under section 6(6) and if they do the governors are not obliged to comply with any parental
preferences incompatible with such arrangements. In my judgment that analysis is correct. In the present case the governors were relying on
section 6(3)(a). It is true that in rejecting the [applicants'] daughters they referred to and relied upon their admission criteria but in my
judgment they were entitled to use those criteria to decide priorities pursuant to section 6(3)(a)."
I entirely agree and would be content to adopt the judgment of Taylor LJ as my own. But in deference to Mr Howell's arguments I will shortly
indicate my views in my own words.
The starting point is that the literal meaning of the words of section 6(3) do not support Mr Howell's submissions. It is clear that section 6(3)
disapplies the statutory duty to give effect to parental preference if the case falls within either (a) or (b) or (c) of section 6(3). This case falls
within (a): the school was so over-sbuscribed that to admit all the applicants would have prejudiced the provision of efficient education.
Moreover, since, under section 6(4) all those who had applied for admission to the school had expressed a statutory preference for that school,
the rejection of any one of those applicants involved a failure to give effect to the preference of one or more parents. Therefore, on the literal
meaning of the words used, the applicants must fail.
At first sight there is force in Mr Howell's point that it is odd that Parliament should by section 6(3)(b) have limited the governors' ability to
apply selection criteria designed to preserve the character of the school in cases which do not fall within section 6(3)(a) (ie where the school is
not over-subscribed) but have permitted such criteria to be applied in choosing which applicants are to succeed when the school is
over-subscribed. It is on this apparent oddity that Mr Howell founds an argument that the school cannot rely on section 6(3)(a) to disapply the
duty if it has used criteria designed to preserve the "character of the school" in making its selection. However, he can only make good this
argument by implying some limitation into the wording of section 6(3)(a).
In my judgment such implication is neither necessary nor proper. It is not necessary because section 6(3)(b) is capable of being given full effect
without any such implication: it applies where a school is under-subscribed and yet seeks to refuse certain applicants who have expressed a
preference for that school: Parliament has indicated that if spaces are to remain unfilled because of admission criteria such criteria have to be
agreed with the local education authority. It does not follow that Parliament had the same intention when, whatever criteria are adopted, all
spaces in the school will be filled in any event.
Nor in my view is it proper to imply into section 6(3) any such requirement as Mr Howell suggests. Church voluntary aided schools are, as I have
said, a sort of partnership between the church which established them and the local education authority. From the outset many, if not most of
them, have reflected their religious foundation in the admissions policy they pursue by favouring those of their own faith. Nobody suggests that,
apart from section 6, it was anything but proper for the governors to adopt religious criteria for selection. Views may differ as to whether the
religious leaning of the school or parental preference should prevail. In the circumstances, I find it inconceivable that, if Parliament wished to
restrict the governors' established right to adopt religious criteria for admission, it would have legislated to produce such a basic departure from
the existing law by implication rather than by clear enactment.
Section 6(3)(a) envisages a school where the number of applicants for admission exceeds the available places. All who have applied for
admission to the school are to be taken to have expressed a preference for that school: section 6(4). Therefore, when a school is
over-subscribed it necessarily follows that "compliance with the preference" of all applicants would prejudice proper education at the school
through overcrowding. In such circumstances it is absolutely necessary that the school should have an admissions policy of some kind in order
to select from all those who have expressed such preference which of them are to be accepted and which rejected. Since whatever admissions
criteria are adopted the selection of some only of the applicants will necessarily result in defeating the parental preference of those who are
rejected, what reason is there for Parliament to object to any given set of criteria being adopted? It is one thing to provide (as in section
6(3)(b)) that in the absence of special arrangements parental preferences is to prevail over a desire to keep places vacant on, for example,
religious grounds: it is quite another to say that when some parental preferences are to be denied in any event as must be the case under
section 6(3)(a)) the choice of those parental preferences which are to prevail and those which are to be defeated should not be based on
religious criteria. The crucial fact is that if the school is over-subscribed, the parental wishes of some parents must be defeated whatever
criteria are adopted.
In my judgment, the matter is put beyond doubt by considering the position as it existed from 1980 until the amendments to section 6 were
made by the Act of 1988. During that period, any criteria for selection (whether religious or otherwise) would have had to be agreed with the
local education authority if the case were to be brought within section 6(3)(b). Say for example, that in an over-subscribed school the
admissions criteria had included a preference for sisters of girls already at the school (sibling preference) or for those living close to the close
(proximity preference). If Mr Howell's argument is correct, the school, even though over-subscribed, could not have adopted these sibling and
proximity criteria in deciding which of the applicants' parental preferences were to succeed and which fail. Mr Howell frankly accepted that this
would have been the result. I find it impossible to accept that this was Parliament's intention. Indeed, the argument if taken to its logical
conclusion would mean that, between 1980 and 1988, any criteria for selection to be applied in an over-subscribed school (as in an
under-subscribed school) would have had to be actually agreed between the school and the local education authority. Such a requirement for
express agreement of admissions policy is difficult to reconcile with the more limited requirement that governors should simply "consult" the local
education authority which was introduced for the first time by section 33 of the Act of 1986. If in practice admissions criteria had to be agreed
from 1980 onwards, what purpose was there in introducing the requirement to consult in 1986?
Mr Howell relied on the decision of the Court of Appeal in Reg v Shadow Education Committee of Greenwich London Borough Council, Ex parte
Governors of John Ball Primary School (1989) 88 LGR 589. In that case, Greenwich announced that it was to adopt an admissions policy which,
in relation to over-subscribed schools, gave preference to those resident in Greenwich over those resident outside the borough. Not surprisingly,
such policy was held to be invalid since it purported to override the express statutory duty, imposed by section 6(5), to give effect to parental
preference whether or not the child comes from the area of the local education authority. If the same duty was owed to those from within as to
those from without the area, the adoption of criteria for selection which distinguished between them plainly conflicted with the express
statutory duty laid down by section 6(5). That case casts no light on the present since there is no express statutory duty to treat all children
alike, whatever their religion.
For these reasons, I can see no grounds for giving anything other than the literal meaning to section 6(3). Since the school was
over-subscribed, the case falls within section 6(3)(a). Therefore, there was no duty on the school to give effect to the applicants' preferences
that their daughters should be educated at the school.
The second issue
Under section 7 of the Act of 1980, the parent of a child who has been refused admission to an aided school is given a right of appeal to an
appeal commmittee against "any decision made by or on behalf of the governors refusing . . . the child admission to" the school. Schedule 2 to
the Act lays down the constitution and procedure of the appeal committee. Paragraphs 7 and 9 provide:
"7. The matters to be taken into account by an appeal committee in considering an appeal shall include -- (a) any preference expressed by the
appellant in respect of the child as mentioned in section 6 of this Act; and (b) the arrangements for the admission of pupils published by the
local education authority or the governors under section 8 of this Act."
"9. The decision of an appeal committee and the grounds on which it is made shall be communicated by the committee in writing to . . . the
appellant . . ."
Both parents appealed to the appeal committee against the governors' refusal to admit their daughters. In the case of Mr Choudhury his
grounds of appeal urge circumstances of very great personal hardship surrounding both his daughter who wished to attend the school and other
members of the family. In the case of Mr Purkayastha his grounds of appeal were primarily based on the academic abilities of his daughter.
The appeals were heard and rejected by the same appeal committee on the same day. The clerk of the committee wrote to both parents on the
same day giving the committee's grounds for rejecting the appeals. The first two paragraphs of both letters are in the same terms as follows:
". . . I am very sorry to inform you that your appeal was unsuccessful. After giving the case careful consideration, the panel decided that, as is
stated in section 6(3)(a) of the Education Act 1980, that to put any more pressure on a year intake that was up to its capacity would be
beyond the school's resources and detrimental to its ability to provide an efficient education.
"The panel also paid special attention to a relevant Department of Education and Science circular, that is circular 11/88 . . . Paragraph 49
states that 'criteria to be applied in the event of over-subscription should therefore be clearly expressed and listed in order of priority.' This was
done and you were able to see this before making your initial application. The circular goes on to say: 'Local education authorities and
governors may apply any reasonable criteria they wish for deciding which pupils should have priority of admission subject to the requirements of
the law including the Race Relations and Sex Discrimination Acts. An authority's or governors' admission arrangements are among the factors
which must be taken into account by an appeal committee when considering a parent's appeal against the admissions decision taken in respect
of his or her child.'
. . ."
The third paragraphs of each of the letters differed. The letter to Mr Choudhury continued:
"There is no doubt that your situation is very difficult and the panel were not unsympathetic to this or any of the other cases before them with
similar unfavourable circumstances. However, in terms of the Act of 1980 and in the light of what has been stated above, the school's admission
criteria still played a part in the panel's deliberations. As your daughter met none of the published criteria the panel, in balancing the stipulation
of the above-stated section of the Act against your parental preferences felt unable to uphold your appeal."
The letter to Mr Purkayastha continued as follows:
"There is no doubt that your daughter is extremely capable and in academic terms would be an asset to the school. However these
considerations are not part of the remit of the panel. The decision was made purely in terms of the Act of 1980 and in the light of what has
been stated above, the school's admission criteria. As your daughter met none of the published criteria the panel felt unable to override the
stipulation of the Act."
Both the trial judge and the Court of Appeal applied the law laid down by the Divisional Court of the Queen's Bench Division in Reg v
Commissioner for Local Administration, Ex parte Croydon London Borough Council  1 All ER 1033 as to the correct approach to be adopted
by an appeal committee under the Act. In that case, Woolf LJ said, at pp 1040-1041:
"there should be a two-stage exercise. Unless an appeal committee comes to the conclusion that compliance with the parents' preference would
prejudice the provision of efficient education or the efficient use of resources, the local education authority remains under a duty to comply
with the expressed preference and if they fail to do so they are in breach of duty. Accordingly, an appeal will automatically be allowed if an
appeal committee do not consider that to give effect to the preference would result in such prejudice. If, however, an appeal committee comes
to the conclusion that efficiency would be prejudiced by complying with the preference, then the appeal committee will have to proceed to the
second stage and decide how to exercise its discretion, by weighing up the advantages which would be achieved by complying with the
preference as against the prejudice this would cause."
It is unnecessary for the purpose of this case to determine whether that decision is or is not correct: I will assume (without expressing any
view on the point) that it is. I do however point out that the passage in question does not in terms refer to any admissions policy which the
school or local authority has adopted nor does it indicate any fixed way in which an appeal committee should approach the importance of such
The applicants contend that both letters show that the appeal committee failed to approach their task in the correct way. Before the trial
judge, attention was concentrated exclusively on the letter to Mr Purkayastha. There was affidavit evidence before the judge which, if
admissible, showed that the appeal committee had in fact approached their task in accordance with the two stage test propounded in the
Croydon case. However he held that such evidence was inadmissible since the letter to Mr Purkayastha unambiguously showed that the
committee had misdirected itself. Without specifically referring to the letter to Mr Choudhury, he quashed both decisions by the appeal
The Court of Appeal held that the letter to Mr Choudhury unambiguously showed that the appeal committee had correctly adopted the Croydon
approach and there were no grounds for impugning the decision. They regarded the letter to Mr Purkayastha as more problematic. Having
reached the conclusion that it was not clear whether the committee had fallen into error, they admitted the affidavit evidence which showed
that the appeal committee had approached the matter correctly. They accordingly reversed the judge's decision to quash and restored the
decisions of the appeal committee in both cases.
I agree with the Court of Appeal decision on both appeals, though on rather shorter grounds. Assuming, as I am, the correctness of the Croydon
decision, there can be no doubt that the appeal committee dealt correctly with the first stage. The first paragraph of the letters to each of the
parents showed that the school was over-subscribed and that to admit their daughters would be detrimental to the provision of efficient
education: therefore the case fell within section 6(3)(a) of the Act of 1980. As to the second stage, like the Court of Appeal I can see no
ground for impugning the grounds for decision stated in the letter to Mr Choudhury. The appeal committee refer especially to the personal
difficulties urged by Mr Choudhury and in the last sentence state expressly that they had balanced such personal hardships against the
prejudice to efficient education mentioned in section 6(3)(a).
The letter to Mr Purkayastha is less clear. Mr Howell submits that the final paragraph of the letter discloses at least two errors of approach:
first, the statement that the daughter's academic ability was "not part of our remit;" second, the statement that the panel "felt unable to
override the stipulation of the Act."
I do not find in these passages any sufficient indication that the appeal committee erred in law. It is essential that in exercising the very
important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed, may disclose
an error of law. The jurisdiction to quash a decision only exists when there has in fact been an error of law. Moreover, the court should not
approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be
expected to adopt. This was a lay committee, with a lay clerk. The same committee on the same day had considered Mr Choudhury's appeal
and the reasons they gave in that case are impeccable. As the Court of Appeal pointed out, it would be surprising if the same committee on the
same day had adopted one, correct, approach to one appeal and another, incorrect, approach to another.
In my judgment, the letter to Mr Purkayastha, fairly construed in its context, falls far short of disclosing an error of law. In the first paragraph,
they had held that the case fell within section 6(3)(a) because admission would prejudice efficient education. In the second paragraph they
expressly referred to the right of an over-subscribed school to adopt reasonable criteria for selection, the criteria had been published in this
case, and that they were required to take such criteria into account. Then in the last paragraph they express the view that the academic
ability of this particular child, not being one of the criteria for admission was not directly in point. In my judgment it was open to the committee
to decide the appeal on the grounds that, there being over-subscription which would prejudice efficient education if all were admitted, to uphold
the reasonable criteria for selection between all the applicants for a limited number of places is prima facie a fair and just way to determine the
appeal. Then, in the final sentence, they are saying that since the girl did not meet those criteria they felt "unable to override" the statutory
provisions in section 6(3)(a), ie, they felt that in her case there was not sufficient to justify them requiring an over-subscribed school to accept
her contrary to their admissions policy. I can see no error of law in such an approach.
I would therefore dismiss both appeals. As to costs, the applicants, are legally aided. The governors, a charity, have incurred substantial costs
in fighting this case and ask for an order that their costs both in the Court of Appeal and in this House be paid out of the Legal Aid Fund. I
would make that order, subject to the Legal Aid Fund being given an opportunity to show grounds why such an order should not be made.
Appeals dismissed. Orders for costs out of legal aid fund, suspended for three weeks.
Tower Hamlets Law Centre; Ellis Wood.