Could the Beccles Free School bid be challenged in court?

If the Seckford Foundation decide to press on with their bid for a Free School in Beccles there is always the possibility that somebody might challenge it in the courts by way of a judicial review.

Clearly there is no guarantee such a challenge would succeed and it would need someone with "standing" i.e. someone affected to bring a case - and someone who could afford the legal fees. Potentially one or more of the schools affected could bring an action or affected parents.

If there were to be such a challenge there are two main clauses in the Academies Act 2010 that could be used, both of which were added as amendments during the lightening fast passage of the Academies Act into law just after the coalition government came to power.

Consultation (Section 10)


There was originally no requirement for free school proposers to consult anyone but a very general clause was added to the act that says:

s10 Consultation: additional schools 

(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person must consult such persons as the person thinks appropriate. 

(2) The consultation must be on the question of whether the arrangements should be entered into 

(3) “Additional school” has the same meaning as in section 9.

Basically an "additional" school is a free school as opposed to a convertor academy so this would apply to the Beccles bid.

Whilst the phrasing is very general Toby Young warns in his book How to Set Up a Free School that if anything this makes it harder. He suggests consulting as wide a number of people as possible and if in doubt consult.

Consultations as notoriously open to challenge and are often not done well. Seckford Foundation have used the "independent" Cambridge Educaton to conduct the consultation but several local people have criticised the consultation meetings and survey claiming it is biased and unreliable. It would certainly be a a possibility that it could be challenged.

In addition as I have detailed in my post on Beccles Free School: Is the demand from parents real? the "expressions of interest" from parents look like they are open to challenge on the basis that many parent might have signed the expressions hoping to "save" Beccles Middle School rather than open a new school  and all did so before the school announced that they would open for two years at Carlton Colville.

And after deciding to move the school to Carlton Colville only the most cursory consultation was carried out in the local community there as my post Beccles Free School: The Newsagent Consultation.

Impact (Section 9)

The other possibility is to challenge the Secretary of State's decision in respect of the impact of the new free school on existing schools. This section states:

s9 Impact: additional schools 

(1) This section applies when the Secretary of State is deciding whether to enter into Academy arrangements in relation to an additional school. 

(2) The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated. 

(3) A school is an “additional school” for the purposes of this section if— 

(a) it does not replace a maintained school that has been or is to be discontinued, and
(b) it is not a school in respect of which an Academy order has effect. 

(4) For the purposes of subsection (3)(a) a school does not replace a maintained school if it provides education for pupils of a wider range of ages than the maintained school.

Now I would have thought there could be strong grounds to challenge under this section if the Secretary of State does give his consent. The impact on Sir John Leman School in particular could be very severe but then again the legal bar to prove a legally "unreasonable" decision is high.

So if the Seckford Foundation do decide to press ahead and the Secretary of State does give final approval there could be the prospect of getting an injunction to preclude him signing the Funding Agreement pending a judicial review. This would have the effect of stopping the school going ahead until a court hearing.

Bear in mind I am not a lawyer, these are just suggestions and proper legal advice would be needed before anyone proceeded.