National Association for Small Schools

Lord Hill, Schools Minister, has agreed to meet a NASS Committee delegation on June 20th. The meeting has been postponed three times but he is keen to meet us. We shall raise the issue of statutory closure guidance and argue for the tougher line of required procedure that characterises the provisions of the 2006 Scottish Bill. The threat of a return to the wholesale closures which the Blair Government’s Circular 110/98 had observed in the decade before 1997 and promised to end is something we have already raised in prior agenda contacts. The DfE letter to us on closure guidance says:

I note your concerns but we cannot impose requirements in guidance. In the current documents, if the guidance is statutory, (heavier grey text) then a LA is required to have due regard to it (in other words they would need to have good reasons for not following it and be able to justify their actions if legally challenged) but that is as far as we can go, because ultimately, decision-making is a local matter, with recourse to the Schools Adjudicator in specified circumstances. A formal complaint to the Secretary of State can only be made under 496/497, if supported with clear evidence that the decision- maker has acted unreasonably or has failed to fulfil a statutory duty. The standard of unreasonableness used in assessing applications for judicial reviews of public authority decisions under English law is known as 'Wednesbury unreasonableness' after the case that established the precedent. In short, a decision or reasoning is ‘Wednesbury unreasonable’ if it is so unreasonable that no reasonable person acting reasonably could have made it.

The fact that you disagree with the outcome of the decision-maker's deliberations is not, in itself, sufficient to warrant an investigation of the case, you must be able to show, for example, how or where a party to the decision/proposal acted unreasonably, or define how a party to the decision/proposal failed to fulfil a statutory duty. The Secretary of State would then consider the evidence and the expediency of his intervention. It also remains open to you to pursue a complaint through an application for Judicial Review or through the offices of the Ombudsman.

The letter then deals with our initial examples from Chale, Pott Row/Grimston and Dilwyn, in all of which LEAs had ignored requirements. The letter noted the facts but by implication affirmed Council and adjudicator decisions but failed to respond to evidence of what we would consider unreasonableness. An LEA can simply argue it has paid due regard but who defines what is “due regard.” Who defines when an action becomes “so unreasonable that a reasonable person would not have done it?”

We shall also raise with Lord Hill the relevance of Mr. Justice Mann’s High Court ruling- also legal precedent and surely enforceable. The guidance uses almost the same words.