In July last year we wrote about a legal challenge to a decision by the South West Regional Schools Commissioner to grant academy status to Swanmead Community School, something which Somerset County Council claimed essentially pre-empted their ongoing consultation on education provision in the Crewkerne and Ilminster area. The Council won the challenge on these grounds, with the judge concluding that the Commissioner had made no attempt to address the potentially prejudicial impact their decision might have on the review.

Now, a year and a half later, Swanmead School and Somerset County Council are back in court, this time as defendants. The review that formed the core of the pre-emption claim in the previous claim has now been concluded and a decision made to approve the decision to move from the existing three-tier system to a two-tier system. As part of this, Misterton C of E First School would be closed, Greenfylde C of E First School and Swanmead Community School would be amalgamated, and Wadham School could become a Secondary School.

The decision went through a complex multiple stage consultation process, which for brevity’s sake we will not delve too far into the detail of here. It will suffice to say that in addition to the report commissioned to review education in the area, there were three consultation stages, the first non-statutory and the second and third statutory, which lead to the decision firstly to move to the new education model, and secondly to make the specific changes under challenge here.

The Claimants challenged the decision to close and amalgamate schools on seven grounds, mostly consultation related, including an alleged failure to carry out a lawful consultation, predetermination, equalities and irrationality. In the event, none of the grounds succeeded, but the failure to carry out a lawful consultation claim might warrant brief additional consideration.

It was divided into three sub-grounds which readers will recognise as corresponding with three of the four Gunning principles. The first claim was an allegation that the Council failed to consult at a formative stage by only consulting on their preferred option of a two-tier model that would involve the closure of Misterton and amalgamate Greenfylde and Swanmead. Their arguments relied on Lord Wilson’s judgment in Moseley, where he stated that fairness may require consultation on discarded options. If the Court did not find that fairness required such a consultation, they argued that the Council should have made reference to the discarded options. Defendants argued that there was no requirement for such a consultation, or such a reference.

The judge decided that the decision not to consult on or make reference to alternative options did not render the consultation sufficiently unfair as to be unlawful. Adopting the purposive approach to statutory consultation elucidated in Moseley, the judge determined that the purpose of consultation in this case was not to enable the general public to participate in the decision making process, but rather the narrower focus of protecting the interests of those likely to be impacted, and generate better decisions. Other more general options had already been consulted on previously, and the purpose of the challenged consultation required a degree of specificity.

The second sub-ground related to Gunning 2- insufficient information to give intelligent consideration. Claimants alleged that the Council had failed to provide three key pieces of information to inform the response to the consultation. The first was a warning from the review report that suggested that without the support of key stakeholders delivery of anything other than the existing system might be undeliverable. The second was analysis justifying the Council’s rebuttal of the statutory presumption against closing rural schools such as Misterton and the third was detailed financial information regarding the merger of Greenfylde and Swanmead.

On all three issues, the judge found for the Council. The first had been addressed multiple times identifying that the Council did not have the legal powers to implement every individual aspect of the proposals, but was working with those that did to ensure that agreement was reached. The second was referred to multiple times throughout the process, and detail of the specific analysis provided before the final stage of consultation, as soon as it was possible. On the financial information, the judge could identify no provision in statute or common law that required provision of every granular bit of information about the proposals, and the Council had responded to a question sent (after all stages of consultation had finished) about this matter clearly and sufficiently.

The final sub-ground was brought under Gunning 4 and alleged a failure to conscientiously consider the responses to the consultation. Again, the allegation was founded on three elements. Firstly, that they did not fairly report the outcome of the first stage of consultation, as this could not have been fairly said to be “entirely inconclusive”. Secondly, they argued that the failure to put forward a ‘no change’ option in the second stage of consultation, despite it being the most preferred option in the first stage consultation demonstrated that they had not had conscientious consideration of the results of the first stage consultation. Again, on the third point they returned to the issue of the warnings about deliverability in the initial report. Given these warnings, and the fact that the Council had proceeded anyway, it was argued that they could not have conscientiously taken into account the responses to the consultation.

On this ground, the judge found entirely for the defendant. That a majority of responses at multiple stages in the consultation fell in one direction did not mandate that that view was followed by the council. The Council had clearly taken account of the responses in formulating principles to guide the formulation of a ‘least worst’ model, and changed its approaches where appropriate. The fact that the Council continued its consultations after the initial warnings did not constitute something that demonstrated that they had ignored consultation responses. Instead they should be read as general warnings that cooperation with other bodies would be required, something that the defendant had assessed as being a low risk.

It’s not often we get an education related case (though we have had something of an influx in recent times), and still less often that we get two cases as entangled as the two Somerset ones. There is a lot to digest in this judgment, including a lot of discussion around the correct application of the principles in Mosley v Haringey in the Supreme Court. We’re going to keep thinking about it, and it might be that we produce a members’ briefing note about it- thought we won’t commit just yet! 2023 marks ten years since the initiation of the case that would eventually become Mosley v Haringey, and we’d very much like to put on an event of some sort to examine where we are ten years on. This case may end up being a vital part of that.