It took a three-year legal battle for Laura McInerney to see papers on why some free school applications succeed and others fail. What she found made her determined to fight on

For decades, anyone who wanted to scrutinise the plans for a new school could do so in much the same way that they might check their neighbour’s application to build a new conservatory. Both were a matter of public information. The reasons for a proposed school’s approval or rejection were also made freely available.

Then, after the 2010 general election, the shutters came down. In fact, plans for the government’s flagship free school policy were so secret that I was taken to court for asking to see them.

For three and a half years I have been challenging the government to release these papers, in the public interest. This month the Department for Education finally handed them over, conceding that the information ought to have been made accessible. This is how that happened, and what the documents show.

Cast your mind back to autumn 2012: Olympic memories were fading, Gangnam Style topped the charts. The then education secretary, Michael Gove, was busy cutting ribbons on a second round of free schools – a type of school opened by parents, teachers or anyone else able to convince the government of their competence to run one.

At that time I was on a PhD scholarship, reviewing how parts of the US had implemented a similar policy to see what England could learn. I wanted to compare the application forms and decision letters from both countries. In the US, they are available on request. In England, not only did the government refuse to provide the documents – twice – but a year later, when an independent adjudicator ruled in my favour, the department said my request was “vexatious” and demanded a court hearing. My motives were to be publicly examined by a judge.

Although scared, I persevered, representing myself in court. I had turned to internet forums and blogs for support after the initial refusal, and found a number of rejected applicants who sent me their decision letters. On two of these, the school location was incorrect. On others, the reasons for refusal were contradictory. Some founders were told a petition of parents wasn’t enough to secure a school; others that their application was lacking one. Something smelled rotten.

By 2013, free schools started collapsing. Discovery free school in Crawley, West Sussex, was forcibly closed. Leaders at King’s science academy in Bradford were implicated in alleged fraud. Al-Madinah school in Derby was judged to be “dysfunctional” and “inadequate” by Ofsted. A National Audit Office investigation revealed that 23% of applications that scored highly on independent evaluations were rejected, while 17% of low-scoring ones were accepted. Why? Nobody knew.

I lost the first court case, with the judge ruling that to provide the volume of information I had requested would place too great a “burden” on the department. I immediately asked for fewer documents: just the decision letters, not the applications.

The nightmare began again: the refusals, a second adjudicator ruling, a second slap with a second court appeal. This time, instead of providing its reasons up front, the DfE said it would “develop its grounds” for the case during the process. They were literally going to make it up as they went along.

Facebook Twitter Pinterest Ros McMullen, free school applicant: ‘When I received the feedback letter, which got the name of the city wrong and turned us down with two paragraphs, I felt insulted’

What kept me going was the need to get answers for the applicants who, upon learning how contradictory the letters were, felt deeply aggrieved.

My Kafkaesque nightmare wasn’t personal, I knew. The education department has form on secrecy. Back in 2012, it forced journalist Chris Cook to court over his request to see email communications from Gove. The minister shrugged the day before the case, admitted defeat, and handed over the (now out-dated) information. Cook wrote at the time that estimates put the cost of preparing for a tribunal at between £50,000 and £80,000.

Parents have been snared in this information web. A group in Kent seeking to legally review Nicky Morgan’s consent for a new grammar school site were unable to do so after the DfE said it “did not hold” plans for the school. This was despite the education secretary telling parliament that the school had “submitted a revised proposal in September” and her decision had “been taken on the basis of the proposal”. The department, meanwhile, says it released “all the information required” and “to suggest otherwise would be disingenuous”. I disagree.

What is most silly about the free school case, though, is that such secrecy has put off the government’s own free school supporters. Eylan Ezekiel, an education consultant and former primary teacher, led an application for a free school in Oxford in the first wave. It was for an innovative school – said to be a main objective of the policy – with proposals laid out in depth (150 pages) and developed by an experienced group. When his application was turned down Ezekiel felt groups “more in line with ministerial direction” were being favoured, such as those with a more traditional curriculum.

“As a group of teachers, parents and educational experts, we spent our savings and time with our families and out of work to do it once,” he says. “Until the odds are fairer, and the process more transparent, there is no way I’d do it again or recommend it to anyone else.”

Ros McMullen, a former executive principal who has worked for decades in challenging schools, bid in 2012 to open a school in an area of Leeds with a serious shortages of places. She, too, found the process incompetent: “When I received the feedback letter, which even got the name of the city wrong and was turning us down with two paragraphs which made little sense, I felt insulted.”

Their faith in the process diminished and they declined to submit future applications. I heard this same story over and again. Experienced groups, with solid plans, in areas crying out for school places, were not getting through.

But are the accusations of favouritism correct? On a freezing Friday last month, an email landed saying the department had cancelled its second appeal against my request for the rejection letters. No reasons were given.

It felt like a Eureka moment. Sure enough, three weeks later six plastic bags arrived containing 600 documents, though it wasn’t clear if all the documents had arrived, especially as the government admitted it had “lost” 24.

Looking at the documents, the rejected applicants’ concerns appeared to have been correct. The first one I picked up was for Fulham boys free school. I don’t know who proposed it as the names had been blanked out.​ It was rejected for not being clear on its ICT budget, having “limited” evidence that enough people would send their children there, and not knowing where its site would be.

Those seem fair points, until you realise one in three successful free school bids didn’t have a postcode for location during its application, or that 84% of free schools failed to fill all their places in the first year of operation.

Greenwood Dale Trust (the address was blanked out) was told in a 2011 letter that its failure to say specifically how many parents would send their child to the school was enough to count it out, even though it provided a petition. Beccles free school, Suffolk, on the other hand, merely conjectured that every child within a 25-minute drive would want to attend, and was accepted.

The Excellence Academy group (details blanked) was told in its rejection letter that the only issue was the availability and suitability of a site. But Michaela free school, which opened on a site in north London in 2014, described two south London sites in its application – and ended up on neither. Yet it passed.

It is difficult to come to any conclusion from the letters other than that the decision-making process was chaotic and inconsistently applied between 2010 and 2012. Still, I consoled myself, at least the process has improved, and the information is now public. At least applicants will in future be able to learn from each other’s mistakes and develop better schools.

I was wrong. I asked the education department why it changed its mind on the applications and was told: “After speaking to free school applicants we decided to release the outcome letters sent to first three waves of free school applicants, as requested.” But it turns out this will not extend to letters sent after 2012, even if the free school applicants agree to a release.

And so I keep on fighting. Scientists have discovered that people make fairer choices when they are being watched, if only by a robot. England needs more schools to cope with increasing pupil numbers and I believe free schools can be a solution, but only if people have faith in the process. To make that happen, someone needs to be the robot. So I will keep on asking for information – even if it lands me in court.

Free school numbers

The applications

Wave 1 free school applications: (applied 2010 to open 2011) 282 rejected, 24 accepted

Wave 2 (2011 to open 2012): 217 rejected, 55 accepted

Wave 3 (2012 to open 2013 onwards): 134 rejected, 102 accepted

The ambition

2011: the first 23 free schools opened

2015: 254 free schools were open

2016: David Cameron promises 500 new schools in the current parliament

Source: DfE