R (Jones) v Ceredigion County Council
| Jurisdiction | England & Wales |
| Judge | Sir Christopher Staughton,Lord Justice Maurice Kay |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWCA Civ 986 |
| Docket Number | Case No: C1/2005/0142 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2005 |
[2005] EWCA Civ 986
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
Lord Justice Waller
Lord Justice Maurice Kay and
Sir Christopher Staughton
Case No: C1/2005/0142
Andrew Nicol QC and Nicholas Bowen (instructed by Russell Jones & Walker) for the Respondents
Nigel Giffin QC and Jane McCafferty (instructed by Ceredigion County Council, Corporate & Legal Services Department) for the Appellant
Waller LJ:
Introduction
The appellate local education authority seeks to appeal from the judgment of Collins J given on 17 th June 2004. Collins J gave judgment for the respondents on their claim for judicial review of the appellant's decision that it was not under a duty, under s.509(1) of the Education Act 1996 ("the 1996 Act"), to provide the respondents with free school transport to the school which they currently attend.
The respondents identified four issues potentially for the court to decide. (1) Does the Court of Appeal have jurisdiction to entertain this appeal at all? (2) If it does, is the appellant entitled to rely on the permission to appeal given by Collins J? (3) If it cannot, ought the court to grant permission to appeal? (4) If the court does have jurisdiction and the appellant is either entitled to rely on the permission to appeal granted by Collins J or is granted permission to appeal by the court itself, did Collins J err in giving an affirmative answer to the issue "Is a local education authority always bound to conclude that it is necessary to provide free transportation to a pupil under s509(1) of the Education Act 1996, if that pupil's parents would otherwise have a defence under s.444(4) of the 1996 Act to a prosecution under s.444 in the event of the pupil failing to attend regularly at school?" (referred to in the court below and in this judgment as the "linkage issue").
We heard argument on the question whether the Court of Appeal had jurisdiction to entertain the appeal at all before hearing any further arguments. Having heard argument on that issue we decided to reserve our judgment in order to give the arguments further consideration. At that stage both counsel were of the view that if we were to decide that the Court of Appeal had jurisdiction we should also decide whether the appellant already had permission to appeal pursuant to the order of Collins J. Counsel were content that we should resolve that issue by reference to the points made in their skeleton argument without further oral submission. In the result, at the conclusion of the hearing on 18 July 2005, we adjourned issues (iii) and (iv) on the basis that it would be wrong for this court to get involved in the merits of issue (iv) if it were to decide that it had no jurisdiction to entertain any appeal at all.
The jurisdiction issue arises in this way. The appellant obtained a so-called "leapfrog" certificate from Collins J allowing it to apply direct to the House of Lords for permission to appeal his decision to that tribunal by reference to two issues decided by the judge. The judge granted permission to appeal to the Court of Appeal if the House of Lords did not grant permission. The House of Lords granted permission to appeal to that tribunal by reference to one issue, and subject to a condition that the appellant would pay the costs of the respondents. The appellant withdrew that appeal. The question is whether, by virtue of s.13(2)(a) of the Administration of Justice Act 1969 (the 1969 Act), whereby if leave to appeal to the House of Lords is granted, "no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal", the appellant is now precluded from bringing an appeal to the Court of Appeal by reference to the issue on which the House of Lords refused leave.
The Factual Background
An agreed statement of facts and issues is set out in paragraph 2 of Collins J's judgment. It is unnecessary to set out the same in full. It is sufficient to summarise the position as in the appellant's skeleton argument. The respondents live in the appellant's area, the appellant is therefore the public authority responsible for any relevant school transport obligations which may exist.
There are three relevant schools:
i) Ysgol Preseli (Preseli), a predominantly Welsh medium secondary school, situated in the area of, and maintained by, Pembrokeshire County Council. The respondents attend that school, which is approximately eight miles from their homes, under a preference expressed by their parents under s.86 of the Schools Standards and Framework Act 1998;
ii) Cardigan Secondary School (Cardigan), a predominantly English medium secondary school, maintained by the Appellant. This school is less than three miles from the respondents' homes;
iii) Dyffryn Teifi School (Dyffryn Teifi), a predominantly Welsh medium secondary school, maintained by the appellant, which is approximately eighteen miles from the respondents' homes.
The respondents could take up places at Cardigan, without the need for any transport, or at Dyffryn Teifi, where they could use the appellant's free bus service. Pembrokeshire Council run a school bus service to Preseli. Spare seats on this service may be occupied by children from Ceridigion if the appellant funds the cost. The appellant's 'Home to School Transport Appeals Panel' declined to provide the funding. Before Collins J the respondents successfully contended that as a matter of law the appellant was obliged to pay for their free transport to Preseli.
The three issues before Collins J
Three issues were raised before Collins J, as appears from the Agreed Statement of Facts and Issues.
(1) Issue 1: Is a local education authority always bound to conclude that it is necessary to provide free transport to a pupil under s.509(1) of the 1996 Act, if that pupil's parents would otherwise have a defence under s.444(4) of the 1996 Act to a prosecution under s.444 in the event of the pupil failing to attend regularly at school?
(2) Issue 2: On the proper construction of s.444(4)(b)(iii) of the 1996 Act, is it possible for a local education authority to have made suitable arrangements for a child to become a registered pupil at a school, if that school would not be educationally suitable for the child concerned?
(3) Issue 3: If the answer to Issue 2 is "no" then is the test of the school's suitability for the purposes of s.444(4)(b)(iii):—
i) whether it is suitable in the ordinary sense of the word; or
ii) whether it is suitable in the specific sense provided for by s.7 of the 1996 Act, namely that it is efficient full time education suitable to the child's age, ability and aptitude and to any special educational needs he may have.
The conclusions of Collins J
In his judgment handed down on 17 June 2004, Collins J concluded as follows:—
(1) Issue 1: Collins J answered this (in favour of the respondents) in the affirmative, holding that it was always necessary to provide transport under s.509 if otherwise the sanction against truancy in s.444 would be unenforceable.
(2) Issue 2: Collins J answered this question (also in favour of the respondents) in the negative, holding that the arrangements to provide transport to a school which was not suitable for that child would not be 'suitable arrangements' under s.444(4)(b)(iii);
(3) Issue 3: Collins J indicated that he was against the appellant on this issue as well but considered that he did not need to decide the issue.
For the respondents to succeed in quashing the refusal of the appellant to supply transport, Collins J had to answer both the question on Issue 1 and Issue 2 in favour of the respondents, which he did and that led to the quashing of that refusal.
When the judgment was handed down the appellant sought a leapfrog certificate under s.12(3)(a) of the 1969 Act. Collins J indicated that he was minded to grant a certificate in relation to both issue 1 and issue 2 on the basis that the relevant conditions laid down in s.12(1) and (3) of the 1969 Act were met. But Collins J expressed the view that he was not sure that the House of Lords would want to take the matter on rather than have the matter considered again by the Court of Appeal. He made observations to that effect in the presence of Mr Bowen who represented the respondents, who at that stage was not able to say whether his clients would be likely to consent to the leapfrog procedure. Ultimately the respondents, by letter dated 24 June 2004, consented to the leapfrog procedure, that being a requirement as will be seen under s.12.
By order dated 29 June 2004 Collins J ordered as follows:
"1.The refusal on 24 September 2003 of the Defendant [Appellant] through its Appeal Panel, to make arrangements for the provision of transport to Preseli School for the Claimants [Respondents] pursuant to section 509(1) of the Education Act 1996 be quashed.
2. A certificate be granted pursuant to section 12 of the Administration of Justice Act 1969.
3. In the event that leave to appeal to the House of Lords is not granted, the Defendant do have permission to appeal to the Court of Appeal."
Proceedings in the House of Lords
The appellant made clear that it was not going to pursue issue 3. The appellant however presented a petition to an Appeal Committee of the House of Lords (The Appeal Committee) pursuant to s.13(1) of the 1969 Act on 28 July 2004. By letter dated 1 November 2004 the Judicial Office of the House of...
To continue reading
Request your trial
-
Sheltered Housing Management Limited V. A Decision Of The Lands Tribunal For Scotland, Communicated To The Appellants On 9th June 2008, Margaret Jackson, Respondent
...the natural meaning of "decision" was the order of the court or tribunal. Counsel next relied upon Regina v Ceredigion County Council [2005] 1 W.L.R. 3626, particularly paragraphs 38 and 47, in which it was held that the word "decision" could not be construed as meaning simply grounds or re......
-
Re X (Court of Protection Practice)
...are not restricted to making conventional orders but can make "decisions" and that is what he was doing. 32 Reliance was placed on R (Jones) v Ceredigion CC [2005] EWCA Civ 986 [2005] 1 WLR 3626 where it was held that the word "decision" in section 13(2) of the Administration of Justice Act......
-
In Reclaiming Motion In Appeal Under The Education Additional Support For Learning Scotland Act 2007 By W.d. V. Glasgow City Council
...founded on the dictum of Lord Steyn in R v Emmett [1998] AC 773 at pages 781-782 which is cited in Jones v Ceredigion County Council [2005] EWCA Civ 986, [2005] 1 WLR 3626 at paragraph 45: "There is a strong presumption that except by specific provision the legislature will not exclude a ri......
-
Sheltered Housing Management Ltd v Jack
...(on the application of Jones) v Ceredigion County CouncilUNKWLRUNKUNKWLRUNK [2007] UKHL 24; [2007] 1 WLR 1400; [2007] 3 All ER 781 and [2005] EWCA Civ 986; [2005] 1 WLR 3626; [2006] 1 All ER 138; [2005] CP Rep 48 Commonwealth of Australia v Bank of New South WalesELRUNK[1950] AC 235; [1949]......