Rootkin v Kent County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE EVELEIGH,SIR STANLEY REES |
| Judgment Date | 25 April 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0425-3 |
| Docket Number | OBS 293 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 April 1980 |
[1980] EWCA Civ J0425-3
Lord Justice Lawton
Lord Justice Eveleigh
Sir Stanley Rees
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Divisional Court)
MR J. POWLES (instructed by Robbins Olivey & Lake, agents for Booth Hern Stratton & Roberts) appeared on behalf of the Appellant.
MR G. STONE (instructed by W. G. Hopkin Esq., County Solicitor, Maidstone, Kent) appeared on behalf of the Respondents.
In form this is an appeal by the leave of this Court by Mrs Pamela Patricia Rootkin against a refusal of the Divisional Court for leave to move for a Judicial Review of a decision made by the Kent County Council whereby that local authority refused to grant Mrs Rootkin an allowance for the cost of the transport for her daughter from home to school. It is accepted by both parties that on the hearing of this appeal this court has jurisdiction to consider the merits of the appeal.
Mrs Rootkin claims that she is entitled to be given a grant for the cost of transport from home to school for her daughter Helen. She says that when she first applied for the cost of transport, the Kent County Council refused; then they said she could have it and they issued a yearly season ticket for her daughter; after about three months they purported to withdraw that season ticket; and thereafter they refused to grant any other season ticket or to reimburse Mrs Rootkin in any other way for the cost of transport.
The Kent County Council say that they issued a season ticket under a mistake of fact believing that they had a duty to issue one. When they discovered they were wrong on the facts as they became known to them, they exercised their right to withdraw the season ticket and thereafter, in the proper exercise of their discretion, they refused to grant any other season ticket or to reimburse Mrs Rootkin for the cost of transport for her daughter.
Mrs Rootkin through her Counsel says that once the Kent County Council had decided to issue a season ticket, they couldnot go back on that decision. Alternatively, as a result of what they did, Mrs Rootkin altered her position with the consequence that the Kent County Council are estopped from saying that they were entitled to refuse the grant of a season ticket. Alternatively that in any event they exercised their statutory powers unreasonably.
The Kent County Council for their part say that once they discovered they had made a mistake of fact they were entitled to revoke their earlier decision and they have in no way acted unreasonably, and that the doctrine of estoppel would not apply in this case, firstly because the law does not allow estoppel to be used to prevent a local authority exercising their statutory discretion and, in any event, there was not such a change in circumstances on the part of Mrs Rootkin on the wrong decision of the County Council as to justify the doctrine of estoppel being brought into operation. Those are the broad issues in this case.
Mrs Rootkin is what has come to be known as the head of a one parent family. She is divorced; she has two children of whom one is the girl Helen who is now 15 years of age. In 1976 that child was twelve. Mrs Rootkin was living with her children in the Gillingham area. Helen had been to a primary school and at the age of twelve the time had come for her to move from primary education to secondary education. In the Spring of 1976 the Kent County Council, as the local education authority, had the task of allocating a secondary school for Helen. They also had the duty, as far as was practicable, tocomply with the wishes of her parent. As a result, in the Spring of 1976, Mrs Rootkin in common with a number of other parents in a similar situation, was told what facilities were 3 available for the children and she was asked what school she would like her daughter to go to. Mrs Rootkin returned a form which she had been sent, saying that her first choice was for the Rainham Girls Secondary School and her second choice was for the Upbury Manor Secondary School. On the back of the form she said: "I have selected one school for Helen as the other schools are some distance from our home and would mean also using public transport, and being a one parent family it would mean extra expenses for travelling", I do not myself think it necessary to go into the details of Mrs Rootkin's finances; they are very personal to her. It suffices to say that she is in straightened circumstances and for my part I readily appreciate that every single penny is of importance to her and if she could save money in bus fares for Helen, then she was being prudent in trying to do so.
Her choice, however, could not be met. Rainham Girls Secondary School, which was near Mrs Rootkin's house, was over subscribed. It followed that her second choice had to be considered. There was a vacancy in the Upbury Manor School, and Mrs Rootkin was told that. Under the arrangements made by the Kent County Council in these sort of circumstances, parents are given an opportunity of appealing against any decision about the allocation of schools. Mrs Rootkin exercised her right of appeal and she appeared before an Appeal Panel. In the course of the presentation of her case she said thatone of the reasons why she had chosen Upbury Manor School was that she understood it was more than three miles from her home, and in those circumstances, she would be entitled, as of right, to be reimbursed the cost of travel by public transport for Helen from borne to school. She went on to say, rather surprisingly in the circumstances, that although there was another school, Woodlands which was nearer her home and to which Helen could have gone, she did not want her to go to that school because she felt she would have to pay bus fares as that school was about one mile from Helen. s. home. There is no reason to think there were any particular hazards about the route from home to Woodlands School, so it seems a little unreasonable at first sight for Mrs Rootkin to have taken the view that Helen could not be expected to walk a mile to school. However, that was her attitude.
She was then told by the Divisional Educational Officer, Mr Evans, that Upbury Manor School was not more than three miles from her home and she would not in those circumstances, for reasons to which I shall refer later in this Judgment, be entitled to reimbursement for the cost of transport from home to school. She seems however, to have been content at that stage with sending Helen to Upbury Manor School.
Shortly afterwards, Mr Evans caused the route from Helen's home to the school to be measured by being driven over by somebody in a motor car with the distance measured on the ordinary car speedometer. When this was done, the reading showed that the difference from home to school was just over three miles. That would have entitled Mrs Rootkin to bereimbursed for the cost of transport. She was so informed by letter dated 30th July.
At the beginning of September, Helen started attending the Upbury Manor School and because it was more than three miles from her home, the Kent County Council issued her with a bus season ticket which was valid until the end of July 1977. Helen seems to have been one of a number of girls who lived in the same area of Gillingham and they too had been granted season tickets on the basis that their homes were more than three miles from the school. But another pupil at the school had been refused a season ticket on the ground that his home was less than three miles away. Inevitably the parent of that pupil complained, pointing out that some children in the neighbourhood were getting bus season tickets and others were not. The inference was that a mistake had been made by someone. As a result, the Divisional Educational Officer Mr Evans decided that the proper course would be to have the distance properly measured in respect of pupils who had been given bus season tickets. That was done with an instrument known as a trumeter, and when it was done the measurement in Helen's case was found to be 175 yards less than three miles. As a result of that discovery, Mr Evans decided that Helen was not entitled under the law, as he understood it, to be granted a bus season ticket. By letter dated 16th November he informed Mrs Rootkin and said that the bus season ticket was withdrawn.
Mrs Rootkin, understandably, was both upset and annoyed by this. She was upset because the cost of transport at that time was at about the rate of £120 per annum and she felt thatshe could not afford it. Secondly, she was annoyed because there had been a reversal of a decision by the local authority and she did not think that was right. She had an interview with Mr Evans about the reversal of the decision. It is not clear from the Affidavit what was discussed at that interview. It suffices to say that she was invited to think over the situation which had arisen and there was evidence before this court that at mid November Helen could have been transferred from the Upbury Manor School to Woodlands School. Whether that was specifically put to Mrs Rootkin at the meeting with Mr Evans in November 1976 is not clear. Mrs Rootkin did consider the matter and she felt aggrieved. She then consulted solicitors, and from November 1976 right up to the present time she has been represented by solicitors. From time to time they made representations on her behalf to the Kent County Council.
One of the reasons why Mrs Rootkin felt that Helen had to go to school by public transport and not have to walk a distance of just under three miles was that Helen had had bronchitis and Mrs Rootkin thought with a tendency towards bronchitis, a long walk to and from school, certainly in the winter months, would not be in Helen's interests. She...
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