Rogers v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 16 October 1986 |
| Judgment citation (vLex) | [1986] UKHL J1016-2 |
| Date | 16 October 1986 |
| Court | House of Lords |
[1986] UKHL J1016-2
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Ackner
Lord Oliver of Aylmerton
My Lords,
For the reasons given in the speech of my noble and learned friend Lord Ackner, with which I agree, I would allow the appeal and answer the certified question in the negative.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Ackner. I agree with it and for the reasons which he gives I would allow the appeal and make no order as to costs.
My Lords,
I have had the opportunity of reading in draft the speech prepared by Lord Ackner. I agree with it and concur in the order which he proposes.
My Lords,
The short question raised by this appeal is: who is to pay for the transport to the Stanway Comprehensive School of Shirley Rogers, a schoolgirl aged 12 at the material time? Should it be the appellants, the Essex County Council, which is the local education authority or the respondents, Shirley's parents? The appellants have offered Shirley the use of the school bus but subject to payment of the concessionary fare of £20 a term, the respondents not qualifying for free transport on a means test basis. The respondents, on principle, have refused to make any payment for school transport. The answer to the question is provided by the Education Act 1944 of which only a few sections need be referred to.
Section 36 imposes upon parents the duty to secure the education of their children. It provides:
"It shall be the duty of the parent of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability, and aptitude, either by regular attendance at school or otherwise."
Section 39 imposes the duty on parents to secure regular attendance of registered pupils. Shirley was registered at the Stanway school. The section provides:
"(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 -
(a) at any time when he was prevented from attending by reason of sickness or any unavoidable cause;
(b) on any day exclusively set apart for religious observance by the religious body to which his parent belongs;
(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.
(3) …
(4) …
(5) In this section 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 relates to the provision of transport and other facilities. As amended it provides:
"(1) A local education authority 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 pupils at schools or county colleges or at any course or class provided in pursuance of a scheme of further education in force for their area, 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 or county college or at such course or class as aforesaid for whose transport no arrangements are made under this section."
This appeal is concerned with the "walking distance" from Shirley's home to her school and in particular whether "the nearest available route" exceeded three miles, she being in the older age group referred to in section 39(5) quoted above. The dispute arises in the following circumstances.
The Facts
23 May 1984 the justices for the county of Essex sitting at Colchester, convicted the respondents and ordered that they both be conditionally discharged for a period of 12 months. The respondents appealed to the Crown Court at Chelmsford and on 13 July 1984 the appeal against conviction was dismissed. The appeal against sentence was allowed, to the extent of substituting absolute discharges for the conditional discharges imposed by the magistrates. The Crown Court expressed considerable sympathy for the respondents, but concluded that they were bound by the decision of the Divisional Court in Farrier v. Ward [1954] 1 W.L.R. 306.
The respondents appealed by case stated to the Divisional Court. I have already set out the material facts which the Crown Court found. There was no finding that the route was impassable on any day that Shirley failed to attend or that the route was unsuitable, if she was accompanied. At the hearing of the appeal by the Divisional Court on 4 February 1985 the respondents repeated their contention that the nearest available route of which the walking distance from a child's home to his school is to be measured for the purposes of the Education Act 1944, must be, not merely the nearest route which a child can lawfully walk, but a route which a responsible parent would allow a child to use unaccompanied. In a reserved judgment Parker L.J., with whom Tudor Evans J. agreed, accepted this submission and distinguished Farrier v. Ward (cit. supra). On 10 May 1985 the Divisional Court gave leave to appeal to your Lordships' House on terms that the appellants would not seek to disturb the order for costs in the Divisional Court and would pay the respondents' cost of this appeal in any event. The certified point of law of general public importance is in these terms:
"Whether the nearest available route by which the walking distance of a school from a child's home is to be measured for the purposes of the Education Act, 1944, must be not merely the nearest route which a child can walk without trespassing but a route which a responsible parent could allow a child to use unaccompanied."
This decision is, of course, not binding on your Lordships' House and whether or not the Divisional Court was...
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R (S) v Eduaction (Waltham Forest) and the London Borough of Waltham Forest
...some parallel, although the specific legal issue was different, with the decision of the House of Lords in Rogers v Essex County Council [1987] AC 66, where it was held that in the case of a school journey within statutory walking distance parents would in certain circumstances be expected ......
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R v Devon County Council, ex parte G
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R v Kent County Council and Another
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