R v Devon County Council, ex parte G
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE TAYLOR |
| Judgment Date | 16 March 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0316-4 |
| Docket Number | 88/0238 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 1988 |
[1988] EWCA Civ J0316-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE MANN
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Parker
Lord Justice Taylor
88/0238
MR F.A.R. BENNION and MR J.A. FRIEL, instructed by Messrs Teacher Stern Selby, appeared for the Appellant (Applicant).
MR C.F. DEHN Q.C. and MR R.E. COX, instructed by W.A. Burkinshaw Esq. (Exeter), appeared for the Respondents (Respondents).
The applicant is a schoolboy now aged ten. He, or more accurately his father, has been locked in battle with the Devon County Council since his eighth birthday. The casus belli is the refusal of the Council to provide him with free transport to and from his school. The Council has offered him subsidised transport at a cost to his parents of £20 per term, but he maintains that he is entitled to be carried free of all charge.
Although I must return to the question of the father's means hereafter, I mention this at the outset because the application has been argued by Mr Bennion, both here and below, upon the basis that the means of the parents are irrelevant and because Mr Conrad Dehn Q.C., appearing for the Devon County Council, said, on instructions, that no application had ever been made to the Council for assistance with the cost of transport based upon any lack of means under section 55(2) of the Education Act 1954.
Application was made for judicial review of this refusal to provide free transport, upon the basis that the decision was both illegal and " Wednesbury unreasonable". I eschew the synonym of "irrational", because, although it is attractive as being shorter than " Wednesbury unreasonable" and has the imprimatur of Lord Diplock in C.C.S.U. v. Minister for Civil Service [1985] 1 A.C. 374, it is widely misunderstood by politicians, both local and national, and even more by their constituents, as casting doubt upon the mental capacity of the decision-maker, a matter which in practice is seldom, if ever, in issue and certainly is not in this case. The application was heard and dismissed by Mann J. (as he then was) and the applicant now appeals.
The application for judicial review originally related to a decision reached by the School Transport Panel on 6th January 1986 which was affirmed by the Education Committee on 11th February 1986. However, since those dates, the House of Lords has given judgment in Rogers v. Essex County Council [1987] A.C. 66, and section 55 of the Education Act 1944, which had already been amended in 1948, was further amended by the Education (No. 2) Act 1986. Following these events, the County Council reconsidered the application for free transport and, on 18th March 1987, again decided not to grant it. By very sensible agreement between the parties, these proceedings continued, but with reference to the March 1987 decision and not that of January 1986.
Let me stress the role of the courts in this controversy. The school which the applicant attends, the parish council, Devon ratepayers and the media are all fully entitled to say that if they were members of the Education Committee, the applicant would, of course, have been provided with free transport. And they have done so. Judges do not enjoy such a freedom. In judicial review proceedings such as these their role is much more limited. They can only consider whether (a) the Council misapplied the relevant law or (b) it reached a decision which no council properly applying the law could reasonably have reached.
Against that background, let me turn to the law which is contained in the Education Act 1944, as amended. So far as is material, it is contained in two sections. The first, section 39, relates to the duty of parents to ensure that their children attend the school at which they are registered pupils. Subject to statutory excuses, any failure to fulfil this duty constitutes a criminal offence. The second is section 55, which, as I have said, was amended between the January 1986 and March 1987 decisions of the Council by the addition of a new subsection. This section relates to the provision of transport and other facilities by local education authorities for the purpose of facilitating the attendance of pupils at schools.
Section 39, so far as is material, is in the following terms:
"Duty of parents to secure regular attendance of registered pupils.
"(1) If any child of compulsory school age who is a registered pupil at a school fails to attend regularly thereat, the parent of the child shall be guilty of an offence against this section.
"(2) In any proceedings for an offence against this section in respect of a child who is not a boarder at the school at which he is a registered pupil, the child shall not be deemed to have failed to attend regularly at the school by reason of his absence therefrom with leave or—
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(a) at any time when he was prevented from attending by reason of sickness or any unavoidable cause;
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…..
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(c) if the parent proves that the school at which the child is a registered pupil is not within walking distance of the child's home, and that no suitable arrangements have been made by the local education authority either for his transport to and from the school or for boarding accommodation for him at or near the school or for enabling him to become a registered pupil at a school nearer to his home.
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"…..
"(5)…..the expression 'walking distance' means, in relation to a child who has not attained the age of eight years two miles, and in the case of any other child three miles, measured by the nearest available route."
Section 55, as amended, reads as follows:
" Provision of transport and other facilities.
"(1) A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary…for the purpose of facilitating the attendance of pupils at schools…and any transport provided in pursuance of such arrangements shall be provided free of charge.
"(2) A local education authority may pay the whole or any part, as the authority think fit, of the reasonable travelling expenses of any pupil in attendance at any school…for whose transport no arrangements are made under this section.
"(3) In considering whether or not they are required by subsection (1) above to make arrangements in relation to a particular pupil, the local education authority shall have regard (amongst other things) to the age of the pupil and the nature of the route, or alternative routes, which he could reasonably be expected to take."
Rogers case ( supra) was an appeal concerning the conviction of parents for failure, contrary to section 39(1), to ensure that their daughter attended school. Their defence was based upon section 39(2)(c), read with section 39(5), namely, that the school was not within "walking distance", i.e. three miles, of the child's home and that the local education authority had made no suitable arrangements for her transport to and from the school. The Essex County Council, like the Devon County Council in this appeal, had offered subsidised transport at a cost to the parents of £20 per term, although in the case of the Essex County Council this was the result of a means test, whereas in the case of the Devon County Council it appears to have been offered without consideration of the parents' means. It was common ground that, if the school was not within "walking distance", the obligation of the Council was to provide free transport and, that not having been provided, the parents had not committed any offence. If, on the other hand, the school was within "walking distance", the parents had no defence to the charge. The issue was how one calculated "walking distance". Children not being crows, the shortest distance between the child's home and the school was obviously not what was meant. But to what extent did a route qualify as "the nearest available route", if it was dangerous for an unaccompanied child, but safe for one who was accompanied?
Lord Ackner, who gave the only judgment, held at page 696:
"In my judgment a route to be 'available' within the meaning of section 39(5) must be a route along which a child accompanied as necessary can walk and walk with reasonable safety to school. It does not fail to qualify as 'available' because of dangers which would arise if the child is unaccompanied.
"It has been argued that, unless your Lordships decide that availability has to be measured by what is reasonable for an unaccompanied child, then parents who normally accompany their children, but who fail to do so temporarily because of some crisis such as an illness, and as a result the child fails regularly to attend school, will have committed a criminal offence. In my judgment this submission overlooks section 39(2)(a) which provides that the child shall not be deemed to have failed to attend regularly if he was prevented from attending by reason of 'any unavoidable cause'.
"There is a final point which I would wish to stress. Under section 55 of the Act, which is set out in extenso above, the local education authority has a discretion to provide free transport where the relevant walking distance is less than three miles (or, as the case may be, two miles). The appellants in their written case fully accepted that if a local education authority failed unreasonably to exercise this discretion, it would be liable, on an application for judicial review to be ordered to carry out its statutory duty. In fact, in pursuance of their powers under section 55(2) the appellants, having been satisfied that the...
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