R v Kent County Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE McCULLOUGH |
| Judgment Date | 14 February 1997 |
| Judgment citation (vLex) | [1997] EWHC J0214-1 |
| Date | 14 February 1997 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 1506/96 |
[1997] EWHC J0214-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Mccullough
CO 1506/96
R who is 12, lives in Chiddingstone Hoth near Edenbridge in Kent; she is in her second year at Tonbridge Girls' Grammar school ('TGGS'), which is a grant-maintained [GM] school. After she had been selected for the school but before she transferred to it the local education authority ('LEA'), which is the Kent County Council ('KCC'), told her that they would not provide transport for her between home and school free of charge. The reason the KCC gave for this was that TGGS was not the nearest school which would have been suitable for R. Her father appealed to the KCC's Case Sub-Committee of the Education Committee, but was told in a letter of 16th February, 1996 that his appeal had failed. Through her father and next friend she now applies for judicial review of this decision.
Statutory Provisions
Section 55 of the Education Act 1944 , as amended, states:
'(1) A [LEA] shall make such arrangements for the provision of transport and otherwise as they consider necessary or as the Secretary of State may direct for the purpose of facilitating the attendance of persons receiving education at schools … and any transport provided in pursuance of such arrangements shall be provided free of charge.
(2) A [LEA] may pay the whole or any part, as the authority think fit, of the reasonable travelling expenses of any person receiving education at any school … for whose transport no arrangements are made under this section.
(3) In considering whether or not they are required by sub-section (1) above to make arrangements in relation to a particular person, the [LEA] shall have regard (amongst other things) to the age of the person and the nature of the route, or alternative routes, which he could reasonably be expected to take …
(4) arrangements made by a [LEA] under sub-section (1) above shall make provision -
(a) for pupils at grant-maintained schools which is no less favourable than the provision made in pursuance of the arrangements made for pupils at schools maintained by a [LEA];
…'
R's father would have been content had KCC been prepared to exercise its discretion to pay for R's transport under section 55 (2), but the council did not. These proceedings are concerned solely with the duty under section 55 (1). Although I am told that some authorities decide to pay for a child to travel to school by public transport, rather than provide free transport, treating their functions under sub-sections (1) and (2) as if they were alternatives, this is not something I need consider in this case. Suffice it to say, without having heard argument about it, that, in considering its duty under section 55 (1), one material consideration would be the fact that it had used its power under section 55 (2) to pay for children to use public transport.
The Secretary of State has made no directions under section 55 (1). The decision as to whether free transport is necessary for the purpose of facilitating the attendance of a pupil at school is a matter for the exercise of the LEA's judgment, taking into account the circumstances of the particular case: Devon CC v George [1989] 1 AC 573. Two other statutory provisions are relevant.
Section 36 of the 1944 Act states:
'It shall be the duty of the parent of every child of compulsory school age to cause him to receive full-time education suitable to his age, ability and aptitude … either by regular attendance at school or otherwise.'
Section 199 of the Education Act 1993 (which replaced section 39 of the 1944 Act without material alteration) states:
'(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(2) Sub-sections (3) to (6) below apply in proceedings for an offence under this section …
(4) The child shall not be taken to have failed to attend regularly at the school if the parent proves -
(a) that the school at which the child is a registered pupil is not within the statutory walking distance of the child's home, and
(b) that no suitable arrangements have been made by the LEA … for any of the following -
(i) his transport to and from school,
…
(iii) enabling him to become a registered pupil at a school nearer to his home.
(5) In sub-section (4) above, "walking distance" means … in relation to a child who has attained the age of 8 yrs, 3 miles … measured by the nearest available route.'
A route is 'available' only if it is one along which a child, accompanied if necessary, can walk with reasonable safety: Rogers v Essex CC [1987] AC 66.
The effect of these two sections is that, in relation to a pupil registered at a school beyond the walking distance, the LEA must either make arrangements for his transport under section 55 (1) or make arrangements to enable him to register at a school nearer home; otherwise the parent of such a child who fails to ensure that he attends school commits no offence —something that cannot have been within the contemplation of Parliament.
The meaning of the words 'suitable arrangements .. for enabling him to become a registered pupil at a school nearer to his home', found in section 39 (2)(c) of the 1944 Act (as in section 199 of the Education Reform Act 1993), have been the subject of a conflict of judicial opinion, and in the present case of opposing submissions. On behalf of R, Mr Rabinder Singh submits that such arrangements cannot be suitable unless the school to which they relate is suitable for the child concerned. This accords with the terms of a circular issued by the Department For Education in January 1994. Mr Brian Jubb, for KCC, submits that the word 'suitable' is not to be implied before the word 'school'. For this he relies on the decision of the Court of Appeal in R v Dyfed CC ex p S [1995] 1 FCR 113, in which judgment was given six months after the issue of the circular, and which, he submits, must be preferred.
In R v Rochdale MBC ex p Schemet (1992) 91 LGR 425 Roch J held that arrangements for enabling a child to become a registered pupil at a school nearer to his home would not be suitable unless the school itself were suitable for the particular pupil: (see p 442). In his judgment he noted that Rose J had expressed a contrary view in R v East Sussex CC ex p D (unrep.) 15/3/91. The view of Roch J was, however, endorsed by Staughton LJ in R v Essex CC ex p C (1993) LGR 10, who said (at p 14):
'The county council … say that under section 39 (2)(c) it is the arrangements that have to be suitable, not the school nearer home. That argument … does not appeal to me. Arrangements for unsuitable transport, or unsuitable boarding accommodation, or an unsuitable school nearer home, are in my judgment unsuitable arrangements. I cannot elaborate the point further than that.'
In the same case I take Steyn LJ to have shared this view. He said (at p 17):
'Moreover in my view section 39 (2)(c) of the Education Act 1944 (as amended) contemplates that a [LEA] is entitled to make arrangements for a child registered at one school to become a registered pupil at another suitable school nearer her home.'.
R v Dyfed CC ex p S was decided at first instance by May J. The issue in the case was whether the county council was lawful in refusing to provide free transport under section 55 to the three children of an English speaking family who had moved to Wales. The children attended a school c 10 miles from home. They could have attended a school nearer home, but their parents preferred the further school because it was more English speaking and less Welsh speaking than the nearer one. The county council refused to provide free transport to the further school, basing their decision on the view that the nearer school would have been suitable for the children. Counsel for the children submitted that the nearer school was not suitable for them because of their parents' preference for the further one. May J said (p 117 F) that the broad question for decision was 'whether the nearer school is suitable or unsuitable within the terms of section 39'. As to this he said (p 119 F) that the reasons underlying parental preference were important, but not determinative, factors to be taken into account. He rejected the submission of counsel for the children that it was for the court to determine the suitability of the nearer school as a matter of precedent fact; he held that the court's function was merely to test the LEA's view of its suitability by reference to the ordinary Wednesbury criteria. On this approach the LEA had not acted unlawfully. The children appealed.
There were two grounds of appeal. They were first, that the objective suitability of the nearer school had to be decided by the court as a matter of precedent fact, and second and alternatively, that the LEA's decision was Wednesbury unreasonable: (see p 128 F-G). The appeal was dismissed. The leading judgment was given by Butler-Sloss LJ, with whom McCowan and Gibson LJJ agreed. Having cited the view of Staughton LJ in R v Essex CC ex p C to which I have referred, Butler-Sloss LJ said (at p 131 G):
'The passage from the judgment of Staughton LJ which I have read was not, in my view, a necessary part of the decision. Neither Russell LJ nor Steyn LJ adverted specifically to this point and it is unclear how far they agreed with it. In any event, I am clearly of the view that it was wrong and suitable relates to the arrangements and not to the school. There is...
To continue reading
Request your trial