Cumings v Bickenhead Corporation
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE FENTON ATKINSON,Sir GORDON WILLMER |
| Judgment Date | 29 March 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0329-2 |
| Date | 29 March 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0329-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by Gordon Cumings, the first named plaintiff, from judgment of Mr. Justice Ungoed-Thomas on 2nd July, 1970.
The Master of The Rolls (Lord Denning),
Lord Justice Fenton Atkinson and
Sir Gordon Willmer.
Mr. LEONARD CAPLAN, Q.C., and Mr. ANTHONY LESTER (instructed by Messrs. Markbys, agents for Messrs. D.P. Roberts & Co. of Birkenhead) appeared on behalf of the first named plaintiff, appellant.
Mr. JULIAN BYNG (instructed by Messrs. Sharpe Pritchard & Co., agents for Mr. Ian G. Holt of Birkenhead) appeared on behalf of the Respondent Defendants.
In the County Borough of Birkenhead the Council, in their capacity of Education Authority, provide schools for the children. They fall into two groups: The Roman Catholic Schools, on the one hand, and the non-Roman Catholic, on the other. The non-Roman Catholic comprise the Church of England Schools and non-denominational schools. The younger children go to primary schools. The older children to secondary schools. We are only concerned today with the secondary schools to which the children proceed from the primary schools.
The Borough Council of Birkenhead, when they were considering the position for the year 1968, came to the conclusion that all the children from the Roman Catholic primary schools could comfortably be accommodated in the Roman Catholic secondary schools, with room to spare: but that the children from non-Roman Catholic primary schools could not be accommodated in the non-Roman Catholic secondary schools. At any rate, there would be such a tight squeeze that they could not find room for the children from Roman Catholic primary schools. In those circumstances, in January 1968, the Education Authority sent out a circular to all the parents whose children were going to begin their secondary education in September of that year. I will read the two paragraphs which state the policy of the Education Authority:
"It is emphasised that pupils who attend Roman Catholic Primary Schools will be considered only for Roman Catholic Secondary Schools; so that parents of these children will not be able to opt for maintained County Secondary Schools. This is because, in the long term, maintained County Secondary Comprehensive Schools will only have sufficient accommodation for pupils from County and C.E. Primary Schools".
Together with the circular, there was a form for each parent to fill in. It contained two lists: one on the right which was the Roman Catholic Secondary Schools; and the other on the left, which was the non-Roman Catholic Secondary Schools. There was a statement on the top saying:
"The schools providing secondary academic or technical courses are listed below. Those on the right-hand side are available only for candidates attending Roman Catholic Primary Schools; and those on the left are available only for candidates attending non-Roman Catholic Primary Schools. Please insert a figure 1 in the square opposite the school which is your first choice; a figure 2 in the square opposite the school which is your second choice, and so on".
It is clear from those documents that the policy of the Education Committee in allocating children to the secondary schools was: the children from the Roman Catholic primaries ought to go to the Roman Catholic secondaries; and those from the non-Roman Catholic primaries should go to the non-Roman Catholic secondaries. But this was not an absolute decision. It was only provisional. The circular showed that there was a procedure for exceptional cases. It said:
"Applications for pupils to attend secondary schools other than those to which they have been allocated will be considered only in exceptional cases and then only if there is accommodation in the alternative school when all the requirements of children within its area have been satisfied".
Such being the policy, I give an instance showing how it was applied. Mr. and Mrs. Cumings had their son Peter, who went to a Roman Catholic primary school. When it came to the time for him to go to a secondary school, his parents filled in the form for a Roman Catholic secondary school and he went to it. But a year later they were advised by some one that the policy of the Education Authority was unlawful. So his parents applied for him to go to a non-Roman Catholic secondary school. The EducationAuthority looked into his case and refused the application. It was not because of his religion, but simply because he was below some other applicants in his attainments. So he had to remain at his original Roman Catholic secondary school.
Eventually, however, a writ was issued on behalf of Mr. and Mrs. Cumings and two other parents against the County Borough of Birkenhead. It was claimed that the Borough Authority had acted unlawfully in that it had segregated the children into two categories of Roman Catholic and non-Roman Catholic. It was claimed that their action was invalid, and sought a declaration accordingly.
The Borough put in a defence in which they denied that they had done anything irregular in any way. They said that in any case this was not a matter of which complaint could be made to the Courts of Law: and that the only remedy was by way of representations to the Minister under the Sections 99 and 68 of the Education Act, 1944. This was set down as a preliminary point of law. Mr. Justice Ungoed-Thomas upheld the Borough's contention. Now the parents appeal to this Court.
Mr. Caplan, for the parents, put forward two propositions to which Mr. Byng for the Education Authority did not take any exception. The first proposition was that, in the light of all the sections of the Statute, the Local Education Authority have a power and a duty to allocate the particular pupils in their area to particular schools. That proposition is clearly right. The Education Authority may have a thousand pupils to spread over three or four schools. It must necessarily be for the Education Authority to make the allocation, sending each child to the school which is thought to be best for him. They will have regard, ofcourse, as Section 76 says, to the wishes of the parents, but that is only one consideration amongst many.
The second proposition was that, seeing there is a power and duty of allocation, it must be exercised on the basis of a proper administrative discretion. That proposition is also right. It is well settled that, when a public authority is given an administrative discretion, it must exercise its discretion fairly. It must be guided by relevant considerations and not...
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