Are academies and free schools subject to ‘judicial review’?

The short answer is probably yes but some lawyers will argue no.

Another post deals with the general question of judicial review, what it means and how it works.

This post deals with the specific question of whether academies are actually subject to judicial review – can someone bring a judicial review claim against an academy or free school?

The short answer is probably yes. But (as far as I know) the point has not yet been established formally in court.

The test for whether any particular organisation is subject to judicial review is subtle:

  • Private bodies are generally not subject to judicial because judicial review is about challenging the legality of action by public bodies).
  • Organisations like academies and free schools, which sit somewhere in the middle, can sometimes pose a challenge.

Although the point has not yet been formally tested in relation to academies/free schools, we get some idea of the answer of what the answer might be from an old court case in which the Bacon City Technology College was challenged in a judicial review action in the High Court: W –v- Governors of Bacon CTC [1998] ELR 488. CTCs are/were, in law similar to Academies. The court accepted that Bacon CTC was indeed subject to judicial review, but Bacon CTC had not disputed the point so that does not amount to a conclusive determination on the point even for CTCs, let alone for academies/free schools.

I am nonetheless aware of instances in which parents have challenged the legality of action by academies – including alleging breaches of Funding Agreements – but in which lawyers for the academies in question have specifically rejected the suggestion that their client academies are subject to judicial review.

For a long time, the Secretary of State seemed to reserve his position on the point. Now, as explained in another post, he at least seems to agree that academies are subject to judicial review. His agrement does not, of course, necessarily mean that the courts will agre too, but at least it seems unlikely that the Secretary of State will dispute the point, which helps.

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