Judge orders fresh hearing of appeal over school places decision after successful challenge by renting residents

A panel that hears appeals against decisions on school places in Richmond-upon-Thames must reconsider a decision in relation to a family resident in rented property, the High Court has ruled.

In Gassa & Anor, R (on the application of) v Richmond Independent Appeals Service & Anor [2020] EWHC 957 (Admin) James Strachan QC, sitting as a deputy judge of the High Court, said it was not his place to decide on the specifics of the case but he would make an order quashing the panel's decision and remit the appeal for determination by a fresh panel of the Richmond Independent Appeals Service.

The case was brought by local residents Dounia Gassa and Dominic Matthey-Flemming, whose son was about to start at primary school.

They own a flat in Barnes but had rented this out and moved to rent a larger home in nearby East Sheen.

This was to enable them to bring their son up in a larger home, the couple said, but the council decided the move artificially increased their son’s chance of attending the popular Sheen Mount Primary School, some 35 metres away from the rented home.

According to the council their real residence was the flat in Barnes, even though that was by then inhabited by a long-term tenant.

The panel and the council later conceded the challenge to the adequacy of the panel’s reasoning and that the underlying appeal should be redetermined by a fresh panel.

Richmond argued the case had become academic, but the claimants said there were issues of law to be decided on the approach a fresh panel must take.

Judge Strachan said the couple has asked him to rule as a matter of law on whether the council's tests of ‘permanence’ of a home address were compatible with the School Admissions Code 2014.

He said: “The appeal panel may need to consider whether the criterion means that sale of [the Barnes] flat is in fact both necessary and sufficient to make the East Sheen address permanent, or whether other evidence of inability to return is sufficient and whether the criterion is sufficiently clear in these respects.

“For these reasons, I do not consider it is appropriate for the court to decide now whether the council's tests of ‘permanence’ in its admissions arrangements are compatible with the Admissions Code.”

He also declined to rule on whether the new panel should decide for itself which of the claimants' addresses should be used, or whether it was limited to reviewing the lawfulness and rationality of the council's decision.

Mr Strachan said: “It is unfortunate that such a basic and fundamental question as to the nature of the appeal panel's jurisdiction in determining appeals of the kind is still the subject of legal debate.

“Not without considerable regret, I am not persuaded that this is something that I can definitively decide, nor ought to attempt to do so.”

Mark Smulian