R v Inner London Education Authority, Ex parte Ali and Another

Queen's Bench Division (Crown Office List)

The Independent 15 February 1990; The Times 21 February 1990, CO/1499/89, (Transcript:Marten Walsh Cherer)

HEARING-DATES: 14 February 1990

14 February 1990

J Goudie QC and A Robinson for the Respondent; F Reynold QC and M Gill for the Applicants

PANEL: Woolf LJ, Pill J


WOOLF LJ: This judgment deals with a preliminary issue in relation to a joint application for judicial review brought by Mortus Ali and Kumar
Murshid. Mortus Ali, who lives in the borough of Tower Hamlets, has six children, one of whom Rofiqul who is seven years old.

Mr Murshid is the director of Dame Colet House Ltd, which is a charitable organisation which has been in existence since 1910. Accoridng to Mr
Murshid, it is the only "multi-purpose resource and advice centre of the Bangladeshi community in Stepney, of which Mr Ali and his family are

The reason for the application for judicial review is that the applicants are dissatisfied as to the situation in relation to schools in the Stepney
area in particular and in Tower Hamlets in general. The reason for their dissatisfaction is summarised in a complaint which was made to the
Secretary of State under section 99 for the Education Act 1944 on 17th March 1989. That complaint sets out that there are at present a large
number of children in the Stepney area who have not been provided with school places. It is said it is difficult to be precise about the number.
However, it is believed the figure is in the region of 400 or 500. It is also said that the children have been out of school for varying periods,
stretching in some cases, for a year or more.

The complaint points out that the respondents, the Inner London Education Authority (ILEA) have been aware of the problem since at least
1982. While the causes of the problem are numerous, the main reason appears to have been the large increase in the school-aged population in
the area. It is alleged that while ILEA has "latterly embarked upon a school building, their responce has been . . . ineffective and insufficient to
meet their statutory duty under section 8 of the 1944 Act. . . . Furthermroe, insufficient measures have been taken to identify the children
without school places. . . . The attempt by ILEA to increase the number of avaialbel school places is placing some strain upon the existing
facilities in such a way that schools provided by ILEA may not be sufficient within the meaning of section 8 of the Education Act 1944.
Inadequate attempts have been made by ILEA to ensure that the Roman Chathoic schools . . . which have spare capacity fill that capacity by
taking on the Bangladeshi children . . .".

The decision of the Secretary of State with regard to that complaint is contained in a letter of 20th June 1989 which states:

"You asked the Secretary of State to issue a direction to ILEA in relation to the Authority's duties under section 8 of the 1944 Act, and also
sections 6 and 7 of the Education Act 1980.

I am directed by the Secretary of State to say that he is fully aware of the difficult education situation in Tower Hamlets, and in particular that
there continue to be children out of school. However, having considered carefully the ILEA response to the complaint, the Secretary of State is
of the view that ILEA is now taking reasonable steps to improve the situation in Tower Hamlets. Accordingly, the Secretary of State has
concluded that there are no grounds for him to issue a direction to ILEA under section 99 of the 1944 Act.

You may know that the Secretary of State met ILEA on Tuesday, 13 June, to discuss the difficulties in Tower Hamlets. It was agreed that
discussions of possible action to improve the position would continue at official level between the Authority, the Borough of Tower Hamlets and
the Department."

In their notice of application for leave to apply for judicial review, the applciants identify two matters in respect of which relief is sought:

"1. A continuing failure by the Inner London Education Authority . . . in breach of their statutory duty under section 8, of the Education Act
1944 to secure the availability of sufficient schools providing primary education for all children in the Tower Hamlets area.

2. A continuing failure by the ILEA in breach of their aforementioned duty under section 8 of the Education Act 1944 to provide a primary
education for the first applicant's child Rofiqui Islam.

On the strength of the affidavits which the applicants filed in support of their applications they were granted leave to apply for judicial review
on 19th September 1989.

Fortunately, on 30th October 1989, Rofiqul obtained a place at the school which he wanted to attend. The only relief which is now sought on
his behalf is damages for the period during which his education is alleged to have been disrupted because of the non-availability of a place at
that school.

Having been served with the application for judicial review, ILEA made an application which was granted by Simon Brown J that three preliminary
issues should be determined. These issues were as follows:

(i) whether the application by the first applicant should be dismissed on the ground that he failed to disclose a material fact in his application for
leave, namely that a place was offered to his son at Marner School, Devas Street, London, E3 which he has not accepted;

(ii) whether the second applicant has sufficient interest in the matter to which his application relates to entitle him to apply for judicial
review.[iii) in any event, in view of the provisions of section 99 of the Education Act 1944 and/or of the decision of Secretary of State for
Education given by letter dated 20 June 1989 to Tower Hamlets Law Centre (who also act in this application for the applicants) that 'there are
no grounds for him to issue a direction to ILEA under section 99 of the 1944 Act' (a decision which has not been and is not impugned in this or
in any other application for judicial review) whether (a) the court has jurisdiction to hear an application for judicial review complaining that the
Inner London Education Authority has failed to discharge any duty imposed on it by section 8 of the Education Act 1944 and (b) the court
should grant any relief in respect of any such breach."

It was these issues which were to be considered by this Court. However, at the commencement of the hearing Mr Goudie, who appeared on
behalf of ILEA, only sought a ruling on issue number (iii). In relation to issue number (i) he accepted that there was a conflict of evidence so
that the question of non-disclosure was no longer suitable for determination as a preliminary issue. As Mr Ali undoubtedly has locus standi and
his leave is no longer in dispute, the second issue as to wehther Mr Murshid has locus standi becomes of academic interest.

However, issue (iii) raises questions of general importance which will directly affect five other applications for judicial review which have been
stayed pending the outcome of the present application. In order to determine issue (iii) I consider it is necessary for the Court to answer the
following questions.

(1) The nature of the duty created by section 8 of the 1944 Act -- the interpretation question.

(2) Whether a breach of the duty contained in section 8 of the 1944 Act gives rise to a right to damages -- the damages question.

(3) Whether section 99 of the 1944 Act excludes the Court's jurisdiction on an applicant for judicial review -- the jurisdiction question.

(4) Whether, if the Court has jurisdiction on an application for judicial review, the Court can grant any relief to the applicants on the application
for judicial review -- the discretion question.

The questions cannot be divided into watertight compartments and to some extent overlap. However, in so far as possible, I will deal with the
questions separately.

The Statutory Provisions

The relevant statutory provisions are all contained in the Education Act 1944, as amended. They are as follows:

"1(1) (It shall be the duty of the Secretary of State for Education and Science) to promote the education of the people of England and Wales
and the progressive development of institutions devoted to that purpose,and to secure the effective execution by local authorities, under his
control and direction, of the national policy for providing a varied and comprehensive educational service in every area.

8(1) It shall be the duty of every local education authority to secure that there shall be available for their area sufficient schools --

(a) for providing primary education, that is to say, full-time education suitable to the requirements of junior pupils (who have not attained the
age of ten years and six months, and full-time education suitable to the requirements of junior pupils who have attained that age and whom it is
expedient to educate together with junior pupils who have not attained that age); and

(b) for providing secondary education . . .

and the schools available for an area shall not be deemed to be sufficient unless they are sufficient in number, character, and equipment to
afford for all pupils opportunities for education offering such variety of instruction and training as may be desirable in view of their different
ages, abilities and aptitudes and of the different periods for which they may be expected to remain at school, including practical instruction and
training appropriate to their respective needs.

(2) In fulfilling their duties under this section, a local education authority shall, in particular, have regard --

(a) to the need for securing that primary and secondary education are provided in separate schools;

(b) . . .

(c) to the need for securing that (special educational provision is made for pupils who have special educational needs); and

(d) to the expediency of securing the provision of boarding accommodation, either in boarding schools or otherwise, for pupils for whom
education as boarders is considered by their parents and by the authority to be desirable: . . .

10(1) (The Secretary of State) shall make regulations prescribing the standards to which the premises of schools mantained by local authorities
are to conform, . . .

(2) Subject as hereinafter provided, it shall be the duty of a local education authority to secure that the premises of every school maintained
by them conform to the standards prescribed for schools of the description to which the school belongs: . . .

If (the Secretary of State) is satisfied, either on complaint by any person or otherwise, that any local education authority or the . . . governors
of any county or volunatary school have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the
performance of any duty imposed by or under this Act, he may, notwithstanding any enactment rendering the exercise of the power or the
performance of the duty contingent upon the opinion of the authority or of the governors . . . give such directions as to the exercise of the
power or the performance of the duty as appear to him to be expedient.

99(1) If (the Secretary of State) is satisfied, either upon complaint by any person interested or otherwise, that any local education authority,
or . . . governors of any county school or voluntary school, have failed to discharge any duty imposed upon them by or for the purposes of this
Act, (the Secretary of State) may make an order declaring the authority, or the . . . governors, as the case may be, to be in default in respect
of that duty, and giving such directions for the purpose of enforcing the execution thereof as appear to (the Secretary of State) to be
expedient; and any such directions shall be enforceable on an application made on behalf of (the Secretary of State), by mandamus."

The Interpretation Question

Mr Reynold, on behalf of the applicants, submits that section 8 creates an absolute duty. Furthermore, he submits that questions of sufficiency,
feasibility, expedience and desirability to which the section refers are to be determined objectively; that is, if necessary, by the Court applying
its own standards to these questions.

Mr Goudie, on behalf of the respondents on the other hand, submits that these questions are for the authority's judgment; unless the authority
exercises their judgment unlawfully the Courts cannot intervene and duty is qualified, the obligation on the authority being to do all that it
considers reasonable to perform its statutory duty.

In order to arrive at the correct interpretation of section 8, it is important to recognise that the duty which it places upon the local education
authority is in very broad and general terms. It is a counterpart of the even wider duty placed upon the Secretary of State by section 1. It is
the type of duty which is a common feature of legislation which is designed to benefit the community: see, for example, section 1 of the
National Health Service Act 1977.

This type of duty can be described as a "target duty". In the language of Mr Goudie there is built into section 8 a "degree of elasticity". While
there are a number of standards which are required to be achieved by the local education authority, the setting of those standards is, in the
first instance, for the local educaiotgn authroity alone to determine as long as those standards are not outside the tolerance provided by the

There are going to be situations, some of which can and others which cannot reasonably be anticipated, where the education provided falls
below the statutory standard and the standards which the local education authority would set for itself. It is undoubtedly the position that
within the area for which ILEA is responsible at the present time, the statutory standards and the standards that it would set for itself are not
being met but this does not mean that ILEA are necessarily in breach of their duty under section 8. The question is whether ILEA has taken the
steps which the statute requires to remedy the situation which exists.

Confirmation that this is the correct approach is provided by a passage from the judgment of Diplock LJ in Bradbury & Ors v Enfield London
Borough Council [1967] 3 All ER 434, [1967] 1 WLR 1311. In relation to section 10 of the Act (set out above), which is more readily capable of
being regarded as an absolute duty, Diplock LJ said:

". . . the duty imposed upon the local education authority by subsection (2) of section 10 is one which may take some time to perform in the
case of existing schools and that it is not unlawful to continue to maintain a school pending the taking of reasonable and timeous steps to fulfil
the requirements of the regulations."

However, I would not accept, as Mr Goudie contends, that it is entirely for the local education authority to decide what steps it should
reasonably take. Such an approach would be inconsistent with the fact that the Secretary of State is not only given the power under section
68 to intervene when he is satisfied that the local education authority has acted or is proposing "to act unreasonably"; he is also given the
power to intervene when the local education authority has failed "to discharge any duty imposed upon him" under section 99.

In relation to another broad duty which is placed upon a local authority (by section 6 of the Caravan Sites Act 1968), in R v Secretary of State
for the Environment & Ors ex parte Ward [1984] 2 All ER 556, [1984] 1 WLR 834, when considering a suggestion that that duty was qualified in
the way Mr Goudie submits the duty under section is qualified, I said, with regard to the suggestion that the duty of the council is limited to
that which is "'practicable or reasonably practicable or reasonable or that it must use its best endeavours":

"The duty is not, in my view, qualified precisely in this way. It is qualified by the fact that what is or is not adequate accommodation is a
question in the first instance for the authority concerned, which has to make a value judgment, taking into account all the circumstances. It is
also qualified by the fact that except in exceptional circumstances, the court will not seek to enforce that duty, but leave the matter to the
Secretary of State, who can be expected to only exercise its powers when it is appropriate to do so."

In R v Secretary for the Environment, Ex parte Lee 54 P&CR, [1985] JPL 724 311 Mann J endorsed my approach and added:

"There is the further and most important consideration, that alternative remedy apart, the remedies in public law are discretionary remedies and
would not normally be granted if an authority is doing all that it sensibly can to meet an unqualified statutory obligation (see R v Bristol
Corporation, Ex p Hendy, per Scarman LJ)".

The duty under section 8 is therefore not absolute. A local education authority which is faced with a situation where, without any fault on its
part, it has not complied with the standard which the section sets for a limied period is not automatically in breach of the section. Here I refer
to changing situations which could not be anticipated, not questions of resources or priorities.

Furthermore, even where there is a breach of section 8 the Court in their discretion may not intervene if by the time the matter comes before
the Court the local education authority is doing all that it reasonably can to remedy the situation. The situation is best left in the hands of the
bodies to whom Parliament has entrusted performance of the statutory duty if they are seeking to fulfil that duty. The question of damages

As Mr Reynold accepted, the only remedy in which Mr Ali is now interested is the recovery of damages for the inteference which took place in
his son's education. However, having regard to what I said earlier in the judgment, the duty imposed by section 8 is intended to ensure for the
public in general and not intended to give the individual litigant a cause of action. This is fatal to a claim for damages, even on application for
judicial review since as section 31(4) of the Supreme Court Act 1981 makes clear, an applicant in proceedings seeking judicial review can only
obtain damages where:

"The court is satisfied, that if the claim had been made in an action begun by the applicant at the time of making his application, he would have
been awarded damages." (See also O 53, r 7 of the Rules of the Supreme Court.)

The only real support which Mr Reynold has for his suggestion that damages could be recovered is to be found in the judgment of Denning LJ in
Meade v Haringey Borough Council [1979] 2 All ER 1016, [1979] 1 WLR 637. At pages 646 and 647 of the latter report Denning LJ cites a number
of authorities in support of the proposition that damages could be recovered. However, his comments are obiter and the cases to which he
refers are all easily distinguishable. In particular, I would accept that if personal injuries are incurred by a pupil in consequence of disrepair of a
school, damages are recoverable but they would not be recoverable under section 8.

In Guardians of the Poor of Gateshead Union v Durham County Council [1918] Ch 146, on which Denning LJ relies, the remedies to which
reference was being made by the Court of Appeal were a declaration and an injunction but not damages which were not claimed.

In the unreported case of R v Mid-Glamorgan County Council, Ex parte Greig (20th April, 1988), of which I have been provided with a transcript,
Simon Brown J dealt with exactly the same argument as that with which I am faced here. I would respectfully wholly endorse the views which
he expressed at page 34 of his judgment and his conclusion that:

"In the last analysis, however, I believe that the essential objection to a damages claim in this context is not the existence of the default
provision but rather the want of any good cause of action. As it seems to me, by no means all breaches of statutory duty by public authorities
give rise to any private law claim whatever irrespective of whether the relevant statute contains default provisions. In my judgment it is only in
certain exceptional circumstances and well-recognised circumstances that someone, even if particularly damnified by an authority's
non-compliance with a statutory duty, can claim damages for such breach."

No such exceptional circumstances exist here and so on this occasion, in agreement with Simon Brown J, I do not adopt the obiter comments of
Denning LJ in Meade [1979] 2 All ER 1016; [1979] 1 WLR 637.

The Jursidiction Question

Subject to any binding authority, I would not accept that the language of the default powers contained in section 68 and section 99 of the Act
indicate that Parliament intended the jurisdiction of the Courts to be ousted from considering the issues which can be considered by the
Secretary of State under those sections. The general approach to the suggestion that the court's jurisdiction has been ousted was indicated by
Lord Symonds in Pyx Granite Estates Ltd, v The Minister of Housing and Local Government [1959] 3 All ER l, [1960] AC 260, 286.

"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is
not to be excluded except by clear words. That is . . . a 'fundamental rule' from which I would not for my part sanction any departure."

The existence of the default powers in the Education Act 1944 are fully explained by the responsibilities which the Secretary of State has under
section 1 and the fact that he can only fulfil those responsibilities if he is able to control the activities of a local education authority which do
not accord with the Act. In other words, the purpose of the machinery which is contained in section 68 and section 99 is to enable the
Secretary of State to give directions to the local education authority when his duties require him to take action against a local education
authority. Until the power to give directions has been exercised by the Secretary of State, it would be difficult, if not impossible, in practice in
most such situations for the Court to intervene at the behest of the Secretary of State. The duties placed on the local education authority are
so broad as not to be readily susceptible to enforcement by an injunction or by an order of mandamus unless they can be linked to directions.

Further, as is stated in de Smith Judicial Review of Administrative Action, 4th ed, 561, "Mandamus has always been regarded as an
extraordinary, residuary and 'suppletory' remedy . . .". On the other hand, they can be the subject of a declaration (see Guardians of the Poor
of Gateshead Union v Durham County Council [1918] 1 Ch 146) or enforceable where there is some specific act which is unlawful on the part of
the authority which can be identified.

It is because the sections are to enable the Secretary of State to perform his duty under the Act that while he can take action on a complaint,
a complaint is not required and he can intervene on his own initiative. His statutory relationship with the local education authorities means that
he would not be expected to apply to the Courts if he could avoid doing so by giving directions, but the fact that he has power to give
directions and can do so on complaint, to my mind, creates no inference that the ordinary jurisdiction of the Court is ousted, although very
relevant, as to whether the Court should intervene as a matter of discretion.

Mr Goudie, however, submits that this approach is inconsistent with the authorities, to which I must in a moment refer. Mr Goudie cannot, and
does not, submit that the Court never has jurisdiction in the case of a breach of section 8 but he submits that the Court can only intervene in a
fairly long list of situations which can now be identified. That is where there is misfeasance or, in the case of nonfeasance, an identifiable
msidirection as to the law, or the local education authority is in breach of the rules of natural justice, or there is a fettering by the local
education authority of its discretion and in addition, where the local education authority commits a tort, or is in breach of a statutory prohibiton
or, finally where the local education authority uses its powers for an improper purpose.

Bearing in mind the number of the exceptions which Mr Goudie identifies to his general approach, I suspect in practice there may be few cases
where with a little ingenuity it would not be possible to bring the case even if Mr Goudie's approach to jurisdiction was correct. However, as I
will seek to show, I regard his approach as being based upon a misapprehension of the effect of the authorities to which I must now turn. In my
view, the length of the list of exceptions, which has continued to grow, indicates that while the Courts may have used the language of
jurisdiction the refusal of mandatory relief, which is always discretionary, was in fact no more than an example of a clearly defined policy as to
how discretion should be exercised.

The Authorities

The earliest authority to which I need refer is Pasmore & Ors v The Oswaldwhistle Urban District Council [1898] AC 387. This decision of the
House of Lords is the source from which flows the later authorities relied on by Mr Goudie. It involved a claim by a plaintiff in ordinary civil
proceedings for an order of mandamus commanding the local authority to make up such sewers, as may be necessary for effectually draining
their district for the purposes of the Public Health Act 1875, and to give facilities for enabling the plaintiff to carry the liquids proceeding from
his factories or manufacturing processes into the sewers under their control. The duty was contained in section 15 of the Public Health Act
1875. Section 299 of the Act provided that:

"Where complaint is made to the Local Government Board that a local authority has made default in providing their district with sufficient
sewers, . . . the Local Government Board, if satisfied . . . that the authority has been guilty of the alleged default, shall make an order limiting a
time for the performance of their duty in the matter of such complaint. If such duty is not performed by the time limited in the order, such order
may be enforced by writ of Mandamus, or the Local Government Board may appoint some person to perform such duty . . ."

The default provision in the Act is therefore not unlike that contained in section 99 of the Act although it appears that where there was default
the local government board was required to intervene but could not intervene without a complaint.

In his speech the Lord Chancellor, the Earl of Halsbury, did make a general sstatement that:

". . . where a specific remedy is given by statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than
that given by the statute."

This was based on a similar statement of Lord Tenterden in Doe dem Murray, Lord Bishop of Rochester v Bridges [1831] 1 B & AD , 859 in very
different proceedings. A similar approach was adopted by Lord McNaghten who was the only member of the House to deliver a separate opinion.

The decision of the House of Lords in Pasmore [1898] AC 387 is clear authority that at that time the remedy of mandamus would not be granted
to enforce a statutory duty where the statute provided an alternative method of obtaining the same remedy. It was not, however, an authority
that the Court would not have jurisdiction to consider whether or not a breach of duty had occurred. The decision was one example of the
general rule, which was applicable at that time, that mandamus would not be granted where the law provided some other adequate remedy. The
position was comparable to that which existed with regard to the granting of specific performance in the case of a breach by a servant of a
contract with his employer.

This approach is readily understandable since just as it is difficult for a court to enforce specifically a contract of employment, so it is difficult
for the Court to enforce the type of statutory duty with which we are here concerned or the statutory duty involved in the Pasmore case
[1898] AC 387. The default power provides a more satisfactory remedy than an order of mandamus which would have to be in very general
terms if it were to be granted to the ordinary litigant. The Minister or the other appropriate authority in the case of a default power can give
specific directions which if not complied with are readily capable of being properly enforced by mandamus.

There can, however, be situations where the difficulties with regard to enforcement do not exist. It is for this reason that the courts in
subsequent decisions have confined the approach as to the non-availability of mandamus which was enunciated in Pasmore [1898] AC 387. If
an individual plaintiff can establish that the Act of Parliament has not only conferred a general duty to the public upon a public body but also
conferred a right upon him as an individual, he can, notwithstanding a default provision bring proceedings to vindicate his right: see, for
example, The Guardians of the Poor of Gateshead Union v Durham County Council [1918] 1 Ch 146 where a declaration was granted to the

Furthermore a plaintiff may be able to show that the public body is, or is proposing to, act unlawfully. Subject to the plaintiff having the
necessary locus standi in the proceedings, again the courts will intervene. Thus in Bradbury v Enfield Borough Council [1967] 3 All ER 434,
[1967] 1 WLR 1311, the Court was prepared to grant an interim injunction to restrain the authority from acting unlawfully by ceasing to maintain
certain schools. The courts were not, however, prepared to grant a remedy in respect of activities of the authority which could not be the
subject of a prohibitive order. Diplock LJ explained the difference in the two positions, at page 1326, by treating the Pasmore case [1898] AC
387 as authority for depriving the subject aggrieved by nonfeasance of a remedy in the form of a mandatory injunction. He added that it does
not "exclude a remedy by injunction at the suit of a person aggrieved where there is a direct prohibition in the Act of certain acts by a local
education authority. It applies (as the judge said) to nonfeasance and not malfeasance."

By referring to nonfeasance and malfeasance, Diplock LJ should not in current circumstances be understood as doing more than indicating that
the Court will not normally intervene where mandatory relief is required, which is what will be needed in the case of nonfeasance. The same
approach can be discerned in the Court of Appeal's decision in Meade v Haringay Council [1979] 2 All ER 1016; [1979] 1 WLR 637. In that case
Lord Denning appears to depart entirely from the approach laid down by the House of Lords in Pasmore, [1898] AC 387. At p 646 of the latter
report he said:

"Now although that section does give a remedy -- by complaint to a Minister -- it does not exclude any other remedy."

However, the other two members of the Court adopted a more conservative approach and identified positive conduct on the part of the Council
which justified intervention. In addition, Sir Stanley Rees draws attention, at page 656, to the "inescapable practical difficulties in distinguishing
between an act which may be misfeasance or malfeasance from one which is mere nonfeasance", which emphasizes the undesirability of relying
on this distinction which is not to be found in the speeches in Pasmore [1898] AC 387.

All the authorities, to which reference has been made so far, were considering the question of what remedies were available in proceedings
which were not brought by judicial review. The effect of the introduction of judicial review was to expand the choice of remedies available in
public law proceedings to include a declaration or injunction and, if there is cause of action, damages. The relevant provision is contained in
section 31(2) of the Supreme Court Act 1981. That subsection provides:

"A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that
relief, has been made and the High Court considers that, having regard to --

(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by such orders; and

(c) all the circumstances of the case,

it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be."

The considerations which would make it inappropriate for the Court to grant mandamus, where what is complained of is a breach of statutory
duty by inactivity, may not apply to the grant of a declaration as opposed to an order of mandamus or an injunction. The reason for the
inactivity could, for example, be because the public body concerned is under a misapprehension as to the relevant law. A declaration clarifying
the legal position could be of considerable value in establishing what the obligations of the public body are.

On an application for judicial review the existence of a default power certainly does not exclude the jurisdiction of the Court and may not, even
where (as here) the breach of duty can be described as nonfeasance, deprive the Court of the ability to provide a remedy. The default power
will, however, still be highly relevant as to whether or not the Court should grant relief as a matter of discretion. This is the approach which has
been adopted in a number of cases including the case of R v Huntingdon District Council, ex parte Cown [1984] 1 All ER 63, [1984] 1 WLR 501, R
v Secretary of State for the Environment, ex parte Ward [1984] 1 WLR 834, in Ex parte Lee 54 P & CR 311; [1985] JPL 724, to which reference
has already been made at page 322 and by Simon Brown J in Ex parte Grieg (unreported). The difference in approach on an application for
judicial review from that which is adopted in ordinary civil proceedings, is not because of any different principles of law being applied but a result
of the more flexible procedure of judicial review, making remedies available as a matter of discretion in circumstances where they would not be
available prior to the introduction of that procedure.

In this case, therefore, the fact that the applicant appropriately made an application to the Secretary of State under section 99 does not
deprive the Court of jurisdiction but, on the contrary, its relevance is confined to the question of discretion, to which I must now finally turn.

The Discretion Question

The applicants having been given leave, in the normal situation the Court would not dismiss their application as a matter of discretion until after
the conclusion of a hearing inter partes at which the Court had the opportunity of considering all the circumstances and evidence. That is not
yet the situation in this case. However, if on this hearing of a preliminary issues it is clear beyond peradventure that this is not a case in which
the Court would grant any relief, in my view it is right that the Court should dismiss the applications now.

In deciding whether this is such a case, it is necessary to consider the position of the two applicants separately. So far as the first applicant is
concerned, the position is obvious. As the Court has no power to award the first applicant damages, there is no relief which the Court could
grant the first applicant. So far as he is concerned, the proceedings can serve no useful purpose. His application should therefore be dismissed.

The position is not so obvious in the case of the second applicant. It was contended by Mr Reynold that the Court should not judge the matter
on the basis of the relief claimed at this stage. Mr Reynold correctly submits that after the full hearing, if the Court came to the conclusion that
there had been a breach of duty, the Court could then determine what relief would be appropriate. However, I am satisfied in this case that
there would be no prospect of the Court granting any relief. I say that because, first of all, the respondent education authority will cease to
exist in approximately three to four weeks, so any relief could only be of very limited effect.

In addition, this is a case where what is complained of is inactivity on behalf of the education authority. In such circumstances, on an
application for judicial review as in ordinary civil proceedings, the Court is in difficulty in providing mandatory relief in the ordinary case, as I
have explained. Merely to order a public body to perform its statutory duty does not add anything to that duty.

Furthermore, in this case it is clear that a declaration would not assist. To delare that the public body should perform its duty does not add to
or clarify the public body's obligations where, as here, that body accepts obligations. At this stage it is possible to say that there are not in this
case any specific steps which will be able to be identified which it can be said that the public body is not taking which it should take. The only
purpose of continuing the proceedings would be to ascertain whether or not the authority was capable in reaching the present unsatisfactory
situation. Inquests of that sort are not the purpose of judicial review.

In coming to this conclusion, I derive support from the decision of the Secretary of State not to interene. He is usually in a better position than
the courts to assess whether intervention would be constructive and, while not bound in any way by his decision, the courts will have regard to
his decision in deciding how to exercise their discretion.

Looking at the matter as a whole, this is a case in which, even on the evidence at present before the Court, it can be said that there is no
prospect of relief being granted to the second applicant.

I would, therefore, at this stage dismiss this application.


PILL J: I agree. I too would reject the submission that the duty of local education authorities under section 8 of the Education Act 1944 is
confined to doing all that they consider necessary to perform the duty. The duty is plainly stated in the section and is not qualified. However, a
Court which is asked to grant relief for an alleged breach of the general duty under section 8 must, in my judgment, bear in mind the
qualifications stated by Woolf J (as he then was) when he considered the general duty placed upon local authorities by section 6(1) of the
Caravan Sites Act 1968 (as amended) in R v Secretary of State for the Environment ex parte Ward [1984] 2 All ER 556; [1984] 1 WLR 834, at
849H to 850A of the latter report. Woolf LJ has already stated the appropriate passage from that judgment. A court should also have regard to
the need which will sometimes arise to allow authorities an opportunity to take "reasonable and timeous steps".

I also agree that the existence of a default power does not exclude the jurisdiction of the Court and with the reasoning of Woolf LJ on that
issue. I find the distinction between nonfeasance and malfeasance in this context a difficult one, as did Sir Stanley Rees in the Court of Appeal
and Goulding J in Meade v Harringey London Borough Council [1979] 2 All ER 1016; [1979] 1 WLR 637. The distinction does not appear in the
House of Lords' decision in Pasmore v Oswaldwhistle Urban District Council, [1898] AC 387.

Local authorities will constantly be taking decisions in relation to their duties under section 8 and the priorities which are involved because
resources are finite. Some decisions will be for action and provision of facilities and others against. the overall result of many such decisions will
be the provision secured under the section. The procedure giving rise to that state of affairs will, in my view, usually be covered by the
expression "positive conduct" used by Eveleigh LJ in Meade [1979] 2 All ER 1016; [1979] 1 WLR 637 at page 651F of the latter report.

Having said that, I agree with the limitations upon the grant of mandatory relief explained by Woolf LJ and I too have no doubt that there is no
prospect of the Court's discretion to grant relief being exercised on the present facts.

Application dismissed

Inner London Education Authority; Tower Hamlets Law Centre