Judicial Review of Education Secretary’s decision not to revoke academy order

Education secretary Gavin Williamson’s decision not to revoke an academy order on Yew Tree Primary School in Sandwell was ruled ‘irrational’ on 23 July 2021 by the High Court.

What is an academy order?

Where a maintained school receives an ‘inadequate’ rating from Ofsted, it will be ordered to become an academy by the education secretary pursuant to his powers under the Academies Act and supporting education legislation. The school will then be required to convert to become an academy through sponsorship by an existing academy or multi academy trust. Conversion to academy means that the school is no longer maintained and   funded by the local authority and the ownership of the school would transfer to the academy. Significant changes would be made to the school governance, including the potential for changes tostaff and changes to the general ethos and policy. Academy orders can be revoked in ‘exceptional circumstances’, including where the school receives a ‘good’ rating upon re-inspection by Ofsted. 

The education secretary’s refusal to revoke the order

Yew Tree Primary School received an academy order after receiving an ‘inadequate’ rating from Ofsted at the start of 2019. In October 2020, the school was re-inspected and improved their rating to the ‘requires improvement’ grade. It was noted in this report that the school was ‘improving quickly’. Before the school could be inspected again, full graded Ofsted inspections were cancelled due to the Covid-19 pandemic. The local authority and the school governors believed that if the school could be inspected again, it would receive a ‘good’ rating. They would not have the chance to be re-inspected before the school was due to be converted into an academy in August 2021. Therefore, the school asked the Education Secretary to revoke the order. However, Gavin Williamson refused this on 15 December 2020.

The school therefore brought a Judicial Review against the Secretary of State. Judicial Review is used as a last resort to challenge decisions, acts or omissions of a public nature by a public body. The court reviewed the lawfulness of the decision-making process.

Irrationality as a ground of Judicial Review

Yew Tree Primary School claimed that Williamson’s refusal to revoke the conversion order was ‘irrational’. Irrationality is one of the grounds for judicial review. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock held that a decision is irrational where it is:

“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Additionally, irrationality is often synonymous with ‘Wednesbury unreasonableness’. This concept originated from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Lord Green dismissed the appeal and stated that the public body decision would only be irrational when it is:

‘so unreasonable that no reasonable authority could ever have come to it’.

The school argued that there was evidence that showed the school had made significant improvement which had not been properly considered and Ofsted were not able to inspect and provide further evidence due to their Covid policies.

The ruling

It was argued that the evidence of improvement that the school and Local Authority had provided should be considered to be the ‘exceptional circumstances’ needed for the academy order to be revoked.

The Education Secretary argued that there were no ‘exceptional circumstances’ due to the academy order preceding the Covid-19 pandemic and therefore, there was no requirement for him to revoke the academy order. However, the judge held the Secretary of State should have carried out ‘a close evaluation of the available evidence’ to determine whether the school was actually performing at a ‘good’ level or above, despite the lack of a formal rating.

The Court concluded that the school and the local authority had indeed provided sufficient evidence of improvement. The judge added that there was such ‘clear evidence before the defendant, from the school and the local authority, of both continued efforts to improve and success in achieving those improvements’ that it was irrational for the Secretary of State to refuse to revoke the academy order in December 2020.

Reactions to this ruling

Jamie Barry, the head teacher of Yew Tree Primary School, was pleased that the improvements were recognised and that his team and the local authority were appreciated.

The Department for Education stated that academy trusts are used to support underperforming schools to improve and that this is in the best interests of the students. They added that they were considering making an appeal against the court’s decision.

This case demonstrates that the High Court is willing to carefully scrutinise decisions which will impact on the status of a school and hold the decisions of the Secretary of State to account. All relevant evidence must be looked at carefully by the Secretary of State when making decisions which would force a school to become an academy.

Anyone that is concerned about decisions on school academisation should seek specialist public law legal advice. This should be done as soon as possible as there are very tight timescales when bringing a judicial review and a legal requirement to bring any case before the court promptly. Our specialist education law team is here to discuss any such concerns and take you through the process. 

Find more information on how we support schools here. 

This case demonstrates that the High Court is willing to carefully scrutinise decisions which will impact on the status of a school and hold the decisions of the Secretary of State to account.”