Legal Question

“Can a judicial review be used to challenge the closure of a mainstream school – particularly where the closure is linked to gentrification in the area and results in the relocation of  Disabled pupils. This includes the relocation of individuals labelled with autism, to alternative mainstream schools that have stated they are unable or unwilling to meet their educational and support needs?” 

Response 

The lawful reasons for closing a maintained school are outlined in the Opening and Closing Maintained Schools guidance (see page 23). A proposal could be made by the School’s Governing Body or the Local Authority.  

If the proposal comes from the Local Authority, you should find out at the outset whether the Governing Body is in agreement with the proposal for closure. If they object, this will strengthen your case to challenge a school closure.   

If the proposal to close comes from the school’s governing body, it must give the Secretary of State and the Local Authority at least 2 years’ notice of its intention to close the school.   

The process to be followed is: 

Stage one – consultation 

Before publishing a closure proposal, the proposer must consult with any parties they consider appropriate. This consultation allows for the exploration of alternative options for the school’s future. 

Stage two – publication 

A statutory proposal should be published within 12 months of the initial consultation being completed. The proposer must comply with the publication requirements in the guidance (see page 30). 

The Office of the Schools Adjudicator (OSA) 

Where the proposal was made by the Local Authority and the governing body disagrees with this, there is a further potential step. The governing body can request a referral to the OSA. Within one week of receipt of a request for a referral, a Local Authority must send the proposal, representations received and the minutes and papers for the meeting at which it considered the proposals to the OSA.  

Stage 3 – representation  

This stage begins on the date the statutory proposal is published and must last four weeks. During this period, any individual or organisation may submit comments or objections, which the decision maker must consider. 

Stage 4 – decision

The Local Authority will be the decision maker on a school closure proposal, unless the closure proposal is ‘related’ to another proposal that is to be decided by the Schools Adjudicator. The Schools Adjudicator will also be the decision maker in any case where the local authority does not make a decision within a period of 2 months of the end of the representation period.  

When issuing a decision, the decision maker could: 

• Reject the proposal; 
• Approve the proposal without amendment; 
• Approve the proposal with such amendments as they think desirable; or 
• Approve the proposal subject to certain conditions (e.g. the granting of planning permission) being met. 

Judicial review 

If the statutory process is not properly followed, a Judicial Review may be possible — but only after a final decision has been made. Parents should fully engage with the consultation process and could get legal advice on their representations, in the hope that a resolution can be found without the need for legal proceedings. Judicial review is a ‘remedy of last resort’ and so cannot be used where another route of challenge is available.  

The most important thing if seeking to oppose a proposed closure in the scenario set out above is for the Governing Body to be supportive of keeping the school open, and to fight the school’s corner, including to the OSA if necessary.