Bradbury and Others v London Borough of Enfield
[1967] 3 ALL ER 434[1967] 1 WLR 1311
66 LGR 115
(Judgment by: Diplock LJ)
Bradbury and Others
vLondon Borough of Enfield
Judges:
Lord Denning MR
Danckwerts LJ
Diplock LJ
Legislative References:
London Government Act 1963 - s 31; s 31(5)
Judgment date: 23 August 1967
Judgment by:
Diplock LJ
I agree. The Education Act, 1944, and s 31 of the London Government Act 1963, impose duties on both the Secretary of State and local education authorities. The Secretary of State is not a party to these proceedings; we have not heard argument on his behalf, and so I do not propose to deal with any matter in which he may be said to have failed in his duty, except in so far as it is necessary to do so in order to deal with the duty of the local education authority which is defendant to these proceedings. Under the Education Act, 1944, the local education authority have a number of duties to fulfil. Section 99(1) of that Act provides that:
"If the Ministere is satisfied, either upon complaint by any person interested or otherwise, that any local education authority ... have failed to discharge any duty imposed upon them by or for the purposes of this Act, the Minister may make an order declaring the authority ... be in default in respect of that duty, and giving such directions for the purpose of enforcing the execution thereof as appear to the Minister to be expedient; and any such directions shall be enforceable, on an application made on behalf of the Minister, by mandamus."
That section follows closely the wording of s 299 of the Public Health Act, 1875, which was considered by the House of Lords in Pasmore v Oswaldtwistle Urban District Council , where it was held that the effect of that section, in the case of nonfeasance by a local authority, was to deprive the subject aggrieved by that nonfeasance of a remedy in the courts by mandatory injunction and to substitute therefor as the sole remedy the exercise by the Minister of the powers given in cases of default. That, however, is confined to acts of nonfeasance--failure to perform a duty which is imposed on the local education authority by the Act. It does not, in my view, and in the view of the judge, exclude a remedy by injunction at the suit of a person aggrieved where there is a direct prohibition in the Act of certain acts by a local education authority. It applies (as the judge said) to nonfeasance and not to malfeasancef
- e
- The functions of the Minister were transferred on 1 April 1964, to the Secretary of State by the Secretary of State for Education and Science Order 1964 (SI 1964 No 490)
- f
- It was held at first instance, however, that the breach of duty, in that some of the existing school premises did not conform to the prescribed standards was in law malfeasance and not non-feasance, and thus was remediable by injunction notwithstanding s 99 of the Education Act, 1944, although in the circumstances an interlocutory injunction was not granted (see p 436, letter h , ante)
The important point in this interlocutory appeal, as regards the remedy which the plaintiffs seeks, is whether the particular matters of which they complain, if they establish them to be unlawful, are acts of nonfeasance or acts of malfeasance; and I propose to deal first with the complaint made by the plaintiffs that the local education authority have unlawfully ceased or are threatening unlawfully to cease to maintain the eight schools to which Lord Denning MR has referred. It is I think necessary, in order to determine whether that is unlawful and whether, if unlawful, it is malfeasance, to look a little at the structure of the Education Act, 1944. Section 8(1) of that Act as amended by s 3 of the Education (Miscellaneous Provisions) Act, 1948, imposses on local education authorities a duty
"... to secure that there shall be available for their area sufficient schools--( a ) for providing primary education, that is to say, full-time education suitable to the requirements of junior pupils ... :, and ( b ) for providing secondary education, that is to say, full-time education suitable to the requirements of senior pupils, other than such full-time education as may be provided for senior pupils in pursuance of a scheme made under the provisions of this Act relating to further education ... "
I need not read further in s 8(1) but should add, from the definition section, s 114, that "senior pupil" is defined as meaning
"a person who has attained the age of twelve years but has not attained the age of nineteen years."
I should also add that the definition, in s 8(1)( b ), of "secondary education" is the only definition that there is--that is to say, it is education for children of a particular age group. There is nothing in the Act of 1944 which defines or limits the curriculm of "secondary education". Section 8, it is to be observed, although it imposes a general duty to secure the availability of sufficient schools, does not impose on a local education authority any duty to establish or to maintain any particular school in their area. Section 9(1) empowers a local education authority to establish secondary schools and to maintain such schools whether established by them or otherwise; but again it imposes no duty on the local authority to do so as respects any particular school. It confers a power and, so far as the section is concerned, an express and unqualified power, to establish and to maintain. Section 10 of the Act of 1944, with which the second part of this case is concerned, imposes on the local education authority a duty to secure that the schools which they in fact maintain, whether in the exercise of a power alone or whether in performance of a duty, shall conform to the standards prescribed for schools of the description to which the school belongs by regulations made by the Minister. Section 11 provides for the local education authority preparing a development plan for education in their area. Subsection (2) provides:
"A local education authority, before submitting to the Minister the development plan for their area, shall take into consideration all schools available for providing primary and secondary education for pupils in the area, and the development plan for the area shall: ( a ) specify which of the said schools the authority propose should be county primary schools, county secondary schools ... and ... give particulars of the proposals of the authority as to the nature of the education to be provided in the school and as to the ages of the pupils to be taught therein; ( b ) specify what alterations are, by reason of the provisions of this Act or of any regulations made thereunder, required in the premises of any school proposed to be either a county school or a voluntary school, and furnish estimates of the cost of these alterations; ( c ) specify what additional county schools and voluntary schools, if any, will be required for their area ... "
paragraph ( b ), requiring the specification of the alterations which are to be made in order to comply with the regulations made by the Minister under s 10(1), does indicate that the duty imposed on the local education authority by s 10(2) is one which may take some time to perform in the case of existing schools and that it is not unlawful to continue to maintain a school pending the taking of reasonable and timeous steps to fulfil the requirements of the regulations. This confirms the view which I have formed, and in which I agree with my lords, that the obligation under s 10(2) to secure that the premises comply with the regulations is one which is enforceable only by the Secretary of State under s 99 of the Act of 1944. Now the development plan required to be submitted by s 11, if that is all that is done, is a brutum fulmen. It serves no useful purpose unless it is followed up, as the Act of 1944 contemplates, by a local education order made under s 12. It is unnecessary to read more than sub-s (5) of s 11, which provides:
"The approval of the development plan submitted by a local education authority shall not, of itself, affect the duties of the authority, but in so far as the Minister considers it expedient to impose duties upon the authority for the purpose of securing that effect will be given to the plan as approved by him, those duties shall be imposed by the local education order for the area made under the next following section."
It follows, therefore, up to this stage, whether or not there has been made and approved a development plan by the local education authority, that no duty either to establish or to maintain a county school has been created by the Act of 1944, though a power to do so has. That duty, as distinct from the power, the Act of 1944 contemplated should come into force as a result of a local education order, which is dealt with by s 12 of the Act of 1944. It provides that
"(1) As soon as may be after approving the development plan for the area of any local education authority, the Minister shall make an order to be called the local education order for the area specifying the county schools and voluntary schools which it is the duty of the authority to maintain ... "
It then goes on to provide that the local education order may define duties; but it is the local education order which the draftsman of the Act of 1944 and Parliament, which passed it, contemplated should be the source of the duty to maintain, as distinct from the power, after the transitional period had passed. I say "transitional period" because, if one looks at s 31 of the Act of 1944, which comes under the heading "Transitional Provision as to County and Voluntary Schools", sub-s (1) of that section provides:
"The provisions of this section shall have effect with respect to the area of every local education authority, until the local education order for that area first comes into operation."
Reverting now to s 12--which, as I have said, is mandatory so far as it concerns the making of a local education order as soon as may be after the approval of the development plan--sub-s. (2) provides:
"The local education order for every area shall continue fo regulate the duties of the local education authority in respect of the matters therein mentioned and shall be amended by the Minister whenever, in his opinion, the amendment thereof is expedient by reason of any change or proposed change of circumstances ... "
We have been informed that the Secretary of State does not in fact make local education orders, despite the mandatory provisions of the section to which I have referred. I make no comment on that save to say that in the absence of such an order a duty, as distinct from a power, to establish and to maintain county schools does not arise at any rate up to this point in the Act of 1944. During this transitional period, which has now lasted twenty-three years the only duty to maintain (apart from the London Government Act 1963, to which I shall have shortly to refer) is imposed, somewhat obliquely, by s 13(5) of the Act of 1944, pending the making of a local education order. Section 13 (to which Lord Denning MR has referred) provides in sub-s (1) that
"Where a local education authority intend--( a ) to establish a new county school; ... or ( c ) to cease to maintain any county school ... they shall submit proposals for that purpose to the Ministerg."
The next sub-ss (2) to (4), go on to deal with provisions for notification to ratepayers and others and for ratepayers and others to make objections to the Secretary of State. It is true that the section does not say expressly that the
- g
- Now the Secretary of State; see p 442, footnote (5) ante.
Secretary of State may not approve the plan without considering objections; and counsel for the defendant council has argued--not on behalf of the Secretary of State but on behalf of the council--that there is nothing in the section which prevents his doing so. I can only say that I agree with Lord Denning MR that it is clearly implicit in the section that the Secretary of State must not give formal approval to any proposal to cease to maintain any county school until the necessary time has elapsed for objections to be lodged, and until he has considered any objections lodged within that time. Subsection (5) is the important section in relation to this first point about ceasing to maintain schools. It is important because it contains a positive prohibition on a local education authority from doing certain things. It reads:
"A local education authority shall not, without the leave of the Minister, do or undertake to do anything (whether or not provided for by the development plan for he area) for which proposals are required by this section to be submitted to the Minister until such proposals have been approved by him."
I say this is rather an oblique way of imposing on local education authorities a duty to maintain schools. That it has been left in this oblique way for now twenty-three years since the Act of 1944 was passed is due to the failure of the Ministerh to make local education orders under s 12; but we have to deal with this case in this court when the "transitional period" has gone on now twenty-three years. As I read the Act of 1944, sub-s (5) is the only provision, apart from the London Government Act 1963, or a local education order, which imposes on a local education authority any duty to maintain a county school as distinct from a power to do so. It is a duty to maintain from which the Secretary of State by giving leave may relieve the authority even before the proposals to cease to maintain the school have been approved. Subsections (6) and (7) I shall have to deal with on the other aspect of the case. Subsection (8) provides that:
- h
- Since the end of March 1964, the Secretary of State has been successor of the Minister; see p 442, footnote (5), ante
"When proposals for the maintenance of any school have been approved by the Minister under this section, it shall be the duty of the local education authority to maintain it;"
That refers to the proposals under s 13(1) (b); and these are the important words:
"and an authority shall not be under any duty to maintain a school after proposals that the authority shall cease to maintain it have been approved by the Minister under this section."
I do not doubt that during this long transitional period (which has resulted from successive Ministers ignoring the mandatory requirements of s 12(1) of the Act of 1944) whereas, as I have said, there has been no duty to maintain save such as is obliquely imposed by s 13(5) of the Act of 1944, it has been within the power of the Minister to authorise a local education authority to cease to maintain pending the approval of proposals made by the local education authority under that section. That, however, is a general proposition relation to local education authorities in respect of which there has been not only no local education order but no express statutory provision imposing a duty on them to maintain. Enfield is a borough as to which there is an express statutory duty to maintain imposed not by the Minister by a local education order but by Parliament itself, and that is contained in s 31(5) of the London Government Act 1963. Lord Denning MR has already referred to it but it is an important subsection and I should perhaps read it again.
"As from Apr. 1, 1965, it shall be the duty of the local education authority for any area in Greater London to maintain [--there is the first creation of the positive duty--] and that authority shall not except in accordance with s. 13 or s. 14 of the said Act of 1944 ... cease to maintain, any county school ... maintained immediately before that date by the former local education authority for that area ... "
All the eight schools with which this case is concerned, as regards ceasing to maintain, are schools which fall within that subsection. So that one has there not merely an express duty to maintain but also an express prohibition on ceasing to maintain except in accordance with s 13 or s 14 of the Act of 1944. Section 13 is the relevant section in the case of the eight schools, and sub-s (8) the relevant subsection of s 13. That sets out the only circumstances in which a local education authority being an outher London borough may cease to maintain a school; and it may do so only after proposals that the authority shall cease to maintain it have been approved by the Secretary of State under s 13. I agree with Lord Denning MR that, in the face of that express statutory statement of the only circumstances in which a cesser to maintain may take place, the Secretary of State has not under s 13(5) of the Act of 1944 any power to drive a coach and horses through the express provision of the London Government Act 1963 by giving leave to the authority to cease to maintain before the procedure in sub-s (1) to (4) has been complied with. In those circumstances s 31(5) of the London Government Act 1963, in my view imposes an express prohibition on the local education authority from ceasing to maintain any of these eight schools until proposals made under the section have been approved by the Secretary of State.
The question which has been argued and decided in favour of the plaintiffs by the judge is whether what has been done to these eight schools in this case (which has already been described by Lord Denning MR) amounts to a ceasing to maintain those particular eight schools. A "school" is defined in s 114 of the Act of 1944 as meaning
"an institution for providing primary or secondary education or both primary and secondary education, being a school maintained by a local education authority ... "--
I need read no further. Subsection (2) provides that
"For the purposes of this Act:--( a ) the dduty of a local education authority to maintain a school ... shall include the duty of defraying all the expenses of maintaining the school..;"
with certain exceptions. A "school", therefore, is not mere premises but is "an institution". If one looks at s 17 (and I mention this because counsel for the defendant council founded an argument on it), there is provision in sub-s (1) that "... there shall be an instrument providing for the constitution of the body of ... governors of the school ... "; and, by sub-s (3),
"Subject to the provisions of this Act and of any trust deed relating to the school ... ( b ) every county secondary school ... shall be conducted in accordance with articles of government made in the case of a county school by an order of the local education authority and approved by the Minister ... and such articles shall in particular determine the functions to be exercised in relation to the school by the local education authority, the body of governors, and the head teacher respectively."
I should refer to one other section in this connection, and that is s 23(1), which provides (so far as is relevant) that
"In every county school ... the secular instruction to be given to the pupils shall, save in so far as may be otherwise provided by the rules of management or articles of government for the school, be under the control of the local education authority."
I mention that to show that the curriculum of the school is under the control of the local education authority and is to be determined in their discretion by the local education authority and by the governors or managers according to the articles of government. It would, therefore, follow, in my view, that a mere change in the curriculum of a school would not of itself alter the identity of the school or result in a ceasing to maintain the pre-existing school. It was made quite clear, however, in Wilford v West Riding of Yorkshire County Council , to which Lord Denning MR referred, that the identity of a school depends on a number of factors and that if its identity is changed there is a cesser of maintenance of that school. In the Wilford case the change in identity was a change in age groups of the pupils to whom instruction was to be given; but that is not the only kind of change which can destroy the identity of a school. Section 16(1) of the Act of 1944 provides that in the case of the transfer of a school to a new site
"... the Minister may by order authorise the transfer of the school to the new site; and any transfer so authorised shall not be deemed, for the purposes of this Act, to constitute the discontinuance of the school or the establishment of a new school,"
and s 67(4) provides:
"If any question arises whether any alterations to the school premises of a county school or a voluntary school would amount to the establishment of a new school, that question shall be determined by the Minister."
If one looks at these provisions, they show that the Act of 1944 contemplates that even a transfer of site or an alteration in its premises may result in a school losing its identity, that is to say when there has been any fundamental change in the school, that amounts to a ceasing to maintain the original school, and, no doubt, to the establishment of another. It seems to me that that is the answer to counsel for the defendant council's argument, based on the terms of the articles of government of a school (as in this case), that, so long as there are the same instrument and articles of government and a single head teacher, the school continues to be the same school. Counsel relied in particular on the provisions in these articles of government that "the council shall determine the general educational character of each school and its place in the local educational system" and that "the admission of pupils to each of the schools shall be in accordance with arrangements made by the council". It seems to me that that argument begs the question as to whether the school remains the same school. The question which one has to ask oneself is: is it the same "institution"? In my view, a mere change in curriculum, or a mere change in the manner of selecting the pupils for admission, unless it amounts to an abandonment of a substantial part of the syllabus of instruction provided as distinct from additions to the syllabus, does not of itself affect the identity of the institution, because, as I have pointed out, the Act of 1944 in terms makes that a matter to be controlled by the local education authority and under the articles of government. When, however, there is a change in age groups, as in the Wilford case, or a change in the sex of the children educated at the school, even without any change in syllabus or in premises, in my view there is a fundamental change in the institution: it becomes a different institution; and the local education authority, on making such a change, cease to maintain the previous school and establish a new school.
At the moment in all these eight cases there has been such a fundamental change in the age groups of the pupils educated there, and consequent abandonment of that part of the syllabus appropriate to the age groups to be excluded from the senior and junior schools respectively and, in the case of the girls' school, a change in the sex of the pupils, that I agree with Lord Denning MR that there has been a cesser of maintenance; and because of the express prohibition in s 13(5) there is a remedy available to the plaintiffs by injunction by this court to restrain the local education authority from breaking the law, that is to say ceasing to maintain these eight schools before approval by the Secretary of State of proposals to cease to maintain and the consequent cessation of the duty to maintain under s 13(8) of the Act of 1944. Such an injunction will not, however, prevent the authority from adding to the syllabus in any of the eight schools such subjects of instruction for new entrants as in their discretion they think fit.
I turn next to the other complaint in this case, namely that, not only in the case of these eight schools but in the case of many others where the Secretary of State has approved proposals for the establishment of what are admittedly new schools, the local education authority propose to go ahead with the establishment of the new schools before complying with the requirements of s 13(6) and (7) of the Education Act, 1944. I must accordingly revert to that section. Subsection (6) imposes on the local education authority, after proposals for the establishment of a new school have been approved by the Secretary of State, the duty of submitting
"... specifications and plans of the school premises, and the [Secretary of State] on being satisfied that the school premises will conform to the prescribed standards, may approve the specifications and plans."
That requirement that the Secretary of State must be satisfied of conformity to the prescribed standards before he has any right to approve the specifications and plans has been qualified by s 7 of the Education (Miscellaneous Provisions) Act, 1948, which provides a modification of the existing proviso to s 10 of the Act of 1944 and enacts a new subsection relating to the establishment of new schools. That provides so far as is relevant that
"(2) Where it is proposed to establish a new school to be maintained by a local education authority, if the Ministeri is satisfied, on the submission to him of the specifications and plans of the school premises ... ( b ) with respect to buildings where the school is to be established in premises comprising existing buildings or temporary buildings, as to the matters mentioned in para. ( c ) set out in the preceding subsection, he may (notwithstanding the provisions of s. 13 of the principal Act as to conformity to the prescribed standards) approve the specifications and plans, and may undertake to give a direction as to the school under the proviso to sub-s. (2) of s. 10 of the principal Act ... "
Paragraph ( c ) of the preceding subsection to which reference is there made, entitled the Minister to approve the plans if he is satisfied
- i
- As regards the transfer of functions to the Secretary of State, see p 442, footnote (5), ante
"... that having regard to shortage of labour or materials it would be unreasonable to require conformity with a requirement of the regulations relating to buildings."
So that the Secretary of State has only a qualified right to approve plans and specifications of new schools if they do not comply with the regulations--as in the case of many of these new schools they do not. I go on to sub-s (7) of s 13.
"When the proposals specifications and plans for a new school have been approved by the Minister under this section, it shall be the duty of the authority.. by whom the proposed school is to be established to give effect to the proposals in accordance with the specifications and plans so approved ... "
That subsection creates a duty to establish and to maintain the new school, but it is a duty which arises only when the proposals, specifications and plans have been approved by the Secretary of State--something which he cannot do under sub-s (6) unless he is satisfied that the school premises will conform to the prescribed standards or is satisfied, on the limited ground to which I have referred, that there is a good excuse for their not doing so. In dealing with the question of maintaining existing schools, I have pointed out that under the Education Act, 1944, as distinct from the London Government Act 1963, in the absence of a local education order there is no duty, but there is a power, to establish new schools. Under s 13(5) as soon as proposals have been approved by the Secretary of State there is no prohibition on the local education authority from establishing a new county school, although there is no duty to do so or to maintain it until the specifications and plans have been approved. The London Government Act 1963 is silent about the establishment of new schools. I can find, therefore, no express provision which prohibits a local education authority from establishing a new school as soon as the Secretary of State has approved the proposals, and in advance of his approval of the plans and specifications. If it does so and maintains the school in the exercise of its power but not its duty, it does fall under the duty imposed by s 10(2)--that is to say, of securing that the premises of the school conform to the standards prescribed for schools of the description to which the school belongs. As I have already pointed out, however, in my view a failure to comply with that duty is one of nonfeasance, for which the only remedy is that under s 99 of the Act of 1944: it is enforceable only by the Secretary of State, although a breach of the duty may result, if it causes injury, in an action for damages on the part of the person injured (see Reffell v Surrey County Council ). So that unless one can find somewhere in the Education Act, 1944, in the absence of any local education order, a positive prohibition on the local education authority's establishing a new school after approval of the proposals but before approval of the plans and specifications by the Secretary of State, it would seem to me that, although the local education authority are doing something which is apparently contrary to the intention of Parliament, the plaintiffs in this case have no remedy in respect to it.
Counsel for the plaintiffs has argued, and argued persuasively, that sub-s (6) and sub-s (7) of s 13 of the Act of 1944 do by implication prohibit a local education authority from establishing a new school until the plans and specifications have been approved. I see great force in the argument which he has addressed to us. The use in those two subsections of the future tense--which is reflected in s 10 as amended by the Act of 1948--would, in my view, but for the presence of sub-s (5) [of s 13], have given rise to that implication. The difficulty which I find (and this after all is an interlocutory motion) in accepting that very persuasive argument is that there is an express prohibition in sub-s (5) on the power to establish a new school and that express prohibition is limited to the period before the proposals to establish it have been approved by the Secretary of State. In the face of that express prohibition, limited to a particular period, I do not think it right, at any rate on an interlocutory motion, to hold that there is in addition an implied prohibition extending to a longer period. For that reason--and I must say with great regret--I do not think that the plaintiffs have made out a right to an injunction in respect of the establishment of the twenty odd new schools because they will fail to comply with the prescribed provisions as respects the accommodation to be made available. I say that I reach this conclusion with regret because the intention of Parliament, as set out not only in the Education Act, 1944, but in the amending Act of 1948, seems to me to be plain that new schools should not be established, whether in existing or in new buildings, unless the accommodation provided in those buildings is up to the standards which the Ministerj has prescribed as being necessary and proper in educational establishments, unless there is an excuse for doing so on the very limited ground laid down in s 7 of the Education (Miscellaneous Provisions) Act, 1948,
- j
- The regulations, the Standards for School Premises Regulations, 1959, were made before the transfer of functions of the Minister to the Secretary of State (cf p 442, footnote (5) ante)
namely, that having regard to shortage of labour or materials it would be unreasonable to require conformity with a requirement of the regulations relating to buildings. It seems to me that the local education authority, by failing to submit to the Secretary of State plans and specifications, by going ahead with the establishment of the new schools in the absence of such plans and specifications, and in the absence of any evidence that the Secretary of State considers that the shortage of materials or labour could prevent these schools being made to comply, are flying in the face of the intention which Parliament manifested when it passed the Act of 1944. As I have said, however, because of the provisions of s 99 of the Act of 1944 I do not think that this court can give the plaintiffs any remedy in respect of that action by the local education authority. The only remedy which is available lies in the hands of the Secretary of State. If he fails to take steps which are available to him under s 99 of the Act of 1944 he is responsible to Parliament, but not to this court. I agree, therefore, with my lords that the injunction should be limited to the eight schools which the local education authority have unlawfully ceased to maintain and that it should be subject to the limitation to which Lord Denning MR has referred--that if (and I express no view whether the Secretary of State after considering any objections will take this view or not; that is for him) the Secretary of State does approve the proposals for ceasing to maintain these eight schools, the injunction should cease to operatek.
- k
- Consequent on the decision reported above the London Borough of Enfield prepared a new scheme for reorganisation of schools. This scheme was held by the vacation court on Wednesday, 13 September 1967, to necessitate variation of the articles of government of Enfield Grammar School. In Lee v Department of Education and Science (Vacation Court), Donaldson J further held, on Saturday, 16 September 1967, that the time allowed by the Secretary of State for making representations, pursuant to s 17(5) of the Education Act, 1944, against variation of the articles of government of Enfield Grammar School was unreasonably short, and thus that there would not be compliance with s 17(5), taken with s 111, of the Education Act, 1944. The time allowed by the department's letter of 14 September for making representations was that they would be received during office hours on Friday, 15 September and up to noon on Monday 18 September. His Lordship intimated that in the circumstances a period of four weeks from 14 September would give reasonable opportunity to make representations. The relief granted was by way of declaration