The Legal Challenge explained

For the record, our legal team explain how the challenge was mounted resulting in the rescinding of all three Academy Orders. There will be a further post on why it was important to follow through to the end.

The challenge

In May 2015 a formal letter of claim was written under the judicial review pre-action protocol threatening Judicial Review proceedings against the Federation and the Secretary of State for Education. The potential claimant was a parent of a child at Prendergast School. The basis of the challenge was that the 3 academy orders for Prendergast School, Prendergast Vale and Prendergast Ladywell Fields had been made unlawfully by the Secretary of State, as the Governing Board of the Federation had acted in breach of the regulations which govern the procedure Federations must follow when applying for an academy order. The regulations set out which classes of governor must apply for an academy order. One of the classes of governor stipulated under the regulations is the staff governor. The staff governor did not vote in favour and so there appeared to be a clear breach of the regulations.

Halting the Academisation Process

The result of this was that on 22 May 2015 the Federation and the Secretary of State accepted that because the staff governor did not vote in favour of applying or the academy order, the order for Prendergast School had been made unlawfully and, so, was rescinded.

However, the Secretary of State and the Federation argued that it was only the order for Prendergast School which had been made unlawfully, as governors, despite being on the Governing Board of a Federation were actually school specific under the regulations. As the staff governor was employed at Prendergast School it was only the order for Prendergast School which had been obtained unlawfully.

Despite the Claimant’s solicitors having some doubts as to whether the Secretary of State was correct in her interpretation of the regulations, the point of the challenge was to halt the Academisation of the three schools and not to argue the point as her interpretation as it still allowed us to come back at some later time that the other 2 orders had also been made unlawfully.

Challenging the Orders for Vale & Ladywell Fields

The wording of the Regulations meant there were three classes of governor required to vote in favour this included staff, parent and head teachers.

In the case of Prendergast (Ladywell Fields) the parent governor did not attend the meeting when the decision was taken to apply for an order, despite being in office.

Further, our assumption had been that when the regulations referred to “head teacher” we had assumed that meant head teacher of the Federation. However, if the Secretary of State was right and governors had to be school specific, then head teacher must mean the head teacher of each individual school. Although the head teachers attend Governing Board meetings they are not members and so do not vote. Therefore the order for Prendergast Vale had also been made unlawfully, as the head teacher did not vote for it.

This argument also applied to the other 2 schools but there were other classes of governor who did not vote in favour so we did not have to rely on the head teacher point..

There then was extensive correspondence between instructing solicitors and Secretary of State.

The original Claimant had was a parent of a Prendergast (Hilly Fields) student so there was a strong argument that he did not have “locus” in respect of the other 2 schools – in other words he had no direct interest in them and so had no right to bring proceedings against the granting of the orders in respect of Vale and Ladywell Fields. Another Claimant was identified (with hours to spare) who was the parent of a child at Vale.

In the end after numerous letters another formal letter of claim was written on 16 July, threatening legal proceedings in 14 days unless the other 2 orders were rescinded. On 28 July we were written to by Secretary of State, who informed us that the Chair of Governors had written to the Secretary of State requesting that the other 2 orders be rescinded and the Secretary of State agreed to that request.

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