R: and Others v City and County of Swansea Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 22 May 2015 |
| Neutral Citation | [2015] EWHC 1436 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4981/2014 |
[2015] EWHC 1436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Mr Justice Wyn Williams
Case No: CO/4981/2014
Dinah Rose QC and Iain Steele (instructed by Bindmans LLP) for the Claimants
Rhodri Williams QC and Nazeer Chowdhury (instructed by Head of Legal, Democratic Services and Procurement) for the Defendant
Hearing dates: 10 and 11 February 2015
Further written representations 25 February and 26 February 2015
Introduction
The First Claimant provides support, financial and spiritual, to Catholic schools within the county and city of Swansea. The Second Claimant is the governing body of Bishop Vaughan Catholic Comprehensive School, a school supported by the First Claimant. The Third Claimant is a pupil at St Joseph's Cathedral Primary School which is also supported by the First Claimant. All the schools supported by the First Claimant are "voluntary aided schools" but for ease of reference in this judgment all voluntary aided schools supported by the First Claimant and other religious institutions are called "faith schools".
The Defendant is the local education authority for the city and county of Swansea. Within the Defendant's administrative district there are six faith schools. Five of the schools are Catholic schools; one is supported by the Church in Wales. The Claimants assert that there are 2,979 pupils in these schools currently although the Defendant's figure is 2,657.
Most children within the Defendant's administrative area are taught through the medium of English. However, there are twelve schools within its area in which the teaching is undertaken through the medium of Welsh (Welsh medium schools). The total number of pupils in those schools is 4,586 according to the Claimants although the Defendant's case is that the number is 3,948.
The Defendant has a published policy governing the provision of free transport for pupils attending primary and secondary schools. The policy is contained within a document entitled Home to School Transport Policy (hereinafter referred to as "the current policy" or "the amended policy" as appropriate). So far as is relevant to these proceedings, the Defendant's current policy is that all pupils of primary school age living two miles or more from their catchment area school, as measured by the nearest available walking route, are eligible for free transport; the same facility is afforded to secondary school pupils who live three miles or more from their catchment area school. Additionally, the current policy provides that pupils attending Welsh medium schools or faith schools are provided with free transport to and from the school in question provided the relevant distance criteria are met even if there is an English medium school and/or non-faith school within two/three miles of their home.
On 30 July 2014, at a meeting of the Full Council, the Defendant resolved to amend aspects of the current policy. As from September 2015 (and subject to transitional provisions specifically designed to continue free transport provision for pupils already attending a particular faith school until that pupil leaves the school) pupils attending faith schools will be entitled to free public transport only if the relevant distance criteria are met and no suitable alternative school is located within two/three miles of home. For the purposes of the amended policy a suitable alternative school will include a non-faith school. So, for example, if a pupil lives more than three miles away from Bishop Vaughan Catholic Comprehensive School but there is a non-faith comprehensive school within three miles of the home of the pupil he/she will not be provided with free transport to attend Bishop Vaughan.
The Defendant's amended policy does not apply to those pupils who attend Welsh medium schools. Accordingly, a pupil whose home is more than three miles from a Welsh medium comprehensive school will continue to be eligible for free transport to and from that school even though there may be an English medium comprehensive school within three miles of home.
In these proceedings the Claimants argue that the Defendant's decision of 30 July 2014 to amend its policy in relation to pupils attending faith schools as from September 2015 is unlawful. They seek an order quashing the decision.
The Statement of Facts and Grounds identifies seven discrete grounds of challenge. I granted permission on all grounds. At the substantive hearing the Claimants pursued six of the seven grounds. The Claimants acknowledged that ground 7 would not succeed as a discrete ground if the other grounds were rejected by the court. Before I turn to deal with each of the grounds individually it is necessary to set out some of the background against which the decision of 30 July 2014 was taken.
Relevant Factual Background
In common with all local authorities in Wales, the Defendant has been faced with making substantial cuts in its expenditure. In February 2013 Mr Brian Roles, the Defendant's Head of Service for education, planning and resources, contacted Ms Katherine Swain the Defendant's Group Leader in relation to Transportation and asked her to indicate how the Defendant might reduce its spending on transportation of pupils to and from the schools in its area. Ms Swain responded in June 2013 by producing a written note in which she set out the potential savings in expenditure should the Defendant cease to provide free transport to pupils attending the six faith schools. In her note Ms Swain assumed that the change would commence in September 2015 and that it would include transitional provisions. Upon those assumptions her estimate was that the savings in expenditure would increase, gradually, over the period 2015 to 2021 and that in that period the savings, cumulatively, would exceed £2m.
In the autumn term of 2013 all the Defendant's Heads of Service were tasked with identifying potential budget cuts of 20% over a three year period. As a consequence Mr Roles initiated informal discussions with representatives of the faith schools about potential savings in expenditure. Two meetings took place, on 16 October 2013 and on 22 November 2013, between representatives of the schools and officers of the Defendant.
In December 2013 the officers produced a draft discussion paper. The paper set out an analysis of the expenditure then being incurred in transporting pupils and identified five options for reducing that expenditure. Option 3 was the suggestion that the current policy should be amended so that free transport to the faith schools would be provided only when the distance criteria were met and when there was no nearer non-faith school for the pupils in question. The paper did not put forward as an option any amendment to the current policy as it related to the provision of free transport for pupils attending Welsh medium schools.
As an appendix to the paper the authors provided a summary of the legal advice which had been received by this stage. The relevant parts of the appendix are as follows:-
"The Learner Travel Operational Guidance covers (at pages 16–18) Welsh Medium Transport, and (at pages 18–19) denominational schools. Both are discretionary, in that the Authority does not have to provide them. However the Guidance details the process that must be followed before the Authority can decide this and also other factors it has to take into consideration.
Welsh Medium
In the case of Welsh schools although there is not a duty to provide transport under section 10 of the Measure places a duty on local authorities in Wales and on Welsh Ministers "to promote access to education and training through the medium of the Welsh language". One of the examples they give is that this is met by providing transport. Therefore the Authority would have to demonstrate if it decided to cease Welsh Medium transport how it would still comply with its duty. It would be difficult for the Authority to meet this duty if it did not provide the transport.
Faith Schools
With regard to Faith Schools again there is not a duty on a Local Authority to provide transport however there is a general duty under section 9 of the Education Act 1996 which places a general duty on local authorities to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of effective instruction and training and the avoidance of unreasonable public expenditure. However unlike the situation with Welsh Medium Education there is no specific duty with regard to Faith Schools. I note that some authorities will only provide transport where parents provide evidence that their children have been baptised etc."
Between the date upon which this paper was produced and 11 February 2014 it was the subject of discussion amongst senior officers of the Defendant and members of the Defendant's Cabinet. It was favourably received.
On 11 February 2014 the Defendant's Cabinet approved the commencement of a formal consultation upon changes to the current policy. The report provided to the Cabinet for its meeting suggested that three proposed changes to the policy should be the subject of consultation; one of the changes was the proposal to amend the current policy relating to free transport provision to the faith...
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