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Addressing the school places crisis
Trowers Public Insight

Addressing the school places crisis

What powers and responsibilities do local authorities have to ensure sufficient school places? With a growing population and the introduction of academies and free schools, Helen Randall considers the legal position of local authorities.

This article was first published by LexisPSL in January 2015

What powers do local councils have to take matters into their own hands if they are facing a school places crisis?

Councils have onerous duties, but their powers have been severely curtailed in recent years. Their statutory duties include a general responsibility for education under the Education Act 1996, s 13 (EA 1996). Section 13(1) says a local  authority shall (so far as their powers enable them to) contribute towards the spiritual, moral, mental and physical  development of the community by securing that efficient primary education and secondary education, and in the case of an English local authority, further education, are available to meet the needs of the population in their area.

There is a further, more specific, duty under EA 1996, s 14(2) which places a duty on a council to secure sufficient schools for providing (a) primary education and (b) secondary education and that those schools are available for their area. That is probably the primary duty we are talking about here. (Sufficient means sufficient in number, character and equipment to provide the opportunities for appropriate education for the pupils.)

The issue we have is that each new government regards education as a vote winner or loser and they tinker with the  education legislation.
It is very topical and we are advising a local authority on  this issue at the moment. Local authorities no longer have the  power to set up their own schools - known as community schools  and under the old legislation they used to be called county schools. Now if you want to create a new school in your area it  has to be either an academy or a free school. With no specific legislative power allowing local authorities to open new  community schools they are caught between a rock - of duty - and  a hard place - of the fact that they themselves can't fulfil  the duty.

However, with existing community schools there are powers for  councils to apply to the Secretary of State to expand an existing school or argue for an increase to the planned admission number. However, it isn't a quick process because they should go through a public consultation process and there has been a lot of  recent case law of what a proper public consultation should  involve. If they don't get it right, they are liable to  judicial review on the failure of the consultation process so they have to conduct the consultation process very carefully.

I've seen no Department for Education (DfE) direction that provides specific guidance as to what powers local councils have to take matters into their own hands if they are facing a schools  places crisis.

However, there are some miscellaneous non-education powers  which are available to them. For example, the Local Government Act 1972, s 137 (LGA 1972) allows a local authority to make a  donation to a charity, which could be a charity for the  advancement of education in schools.

There is also a power under LGA 1972, s111 for a local authority to do anything which is calculated to facilitate or is incidental to their substantive powers and duties. But again, there has been some very unhelpful case law, this time on the  legal construction of local authorities' powers, which  basically said that local authorities are creatures of statute. As such, they can only do what Parliament has expressly said they can do, or can reasonably be implied to have been done - unless  they do that, they are vulnerable to judicial review on the  grounds of acting for an improper purpose.

Where does the buck stop with addressing the capacity of local school provision?

The buck stops with the council.

There was a judicial review made in 1988 (R v Mid-Glamorgan  County Council, ex p Greig) which said that the obligation of  the council was more of a general, vague duty and there is an issue that the present legislation is so nebulous that it is interpreted differently every time someone comes across it from local authority to local authority.

How have free schools and academies affected local school  provision? Has the increased autonomy of academies and free  schools presented any problems for local councils in planning  school provision?

As far as I'm aware there is no guidance on the limit of  local council's powers to calculate the capacity of local  school provision to provide places. The issue is that local authorities can no longer open their own community schools, and academies and free schools fall completely outside the control and remit of the local authority so it is much more difficult for local authorities to plan what schools they need.

If a local authority school converts to being an academy, the  local authority then loses control over it. In addition, local authorities have no control and influence over where free schools  are built in their area. The DfE can't engage with councils until a free school has applied and is at the approval  stage - that affects the councils' ability to make suitable  planning provision.

In certain cases, councils have to double allocate pupils or  provide places at very short notice. On the other hand, plans to build and extend free schools which haven't been discussed with local authorities have, quite ironically, resulted in surplus capacity in some areas.

Furthermore, if a free school or an academy in an area is failing there is very little a local authority can do about  it.

Where is the legal position of councils if they are unable to offer sufficient school places?

There is a specific duty on the local authority under EA 1996, s 14A where, if an English local authority receives a representation from a parent where it has failed in its duties to  provide a school, the authority has to consider the  representation within a reasonable time and provide a statement saying the action it pro-poses to take and, if it is not proposing  to take any action, what its reasons are.

The duty is regarded as a target duty, rather than an absolute  duty - if the local authority has taken all reasonable steps to  meet the duty, but it just so happens that a particular child  can't get a school place, then the authority is still not  regarded as in breach (see R (on the application of P) v  London Borough of Hackney [2007] EWHC 1365 (Admin), [2007]  All ER (D) 127 (Jul)).

A further argument originated from R (on the application of  Roberts) v Welsh Ministers [2011] EWHC 3416 (Admin), [2012]  All ER (D) 96 (Jan) where the courts said that the local  authority and councils in charge needed to match the number of  school places with the needs of the area. From this I suppose you  could argue that local authorities are only under a duty to  provide enough school places for the need, so basically it's  about having a reasonable match between the number of places and  schools and the demand in the catchment area.

But having said all that, basically the buck does stop with the local authority.

If a council can't offer a school place, a parent can complain, after they've been through the EA 1996, s14A  procedure, to the DfE under EA 1996, s 497. The parent can say that the local council failed to discharge its duty to provide schools and the Secretary of State can give a direction which can be enforced in the courts with a mandatory order. However, the  courts do recognise that local authorities have limited resources and they have to ration them fairly.

In my experience it isn't that people can't get their child in to any school, its more that they can't get their child into the school they want to get them into.

Could councils or central government be compelled to compensate children who are not placed in a local school?

Because it is a target duty rather than an absolute duty I think a parent could only argue for compensation if they had suffered a specific damage or loss.

Could local councils do anything particularly innovative to address the shortfall?

They could cooperate with the education providers (e.g. academies) within their area. Alternatively, they could get together with people in their area who are setting up a free school, or with local secondary schools and further education colleges or charitable organisations and start getting  applications in for schools now.

Helen Randall was interviewed by Fran Benson.

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