Watt v Kesteven County Council

JurisdictionEngland & Wales
Judgment Date07 February 1955
Judgment citation (vLex)[1955] EWCA Civ J0207-3
CourtCourt of Appeal
Date07 February 1955

[1955] EWCA Civ J0207-3

In The Supreme Court of Judicature

Court of Appeal


Lord Justice Denning

Lord Justice Birkett and

Lord Justice Parker

Kesteven County Council

MR GERALD GARDINER, Q. C., MR R. ELWES. Q. C., The Hon. HENRY HOPE and MR PATRICK FITZGERALD (instructed by Messrs O'Brien & Brown, agents for Messrs Stapleton & Son, Stamford) appeared on behalf of the Appellant Plaintiff).

SIR FRANK SOSKICE, Q. C. and MR J. GODFRAY LeQUESNE (instructed by Messrs Bircham & Co., agents for Mr J. E. Blow, Sleaford) appeared on behalf of the Respondents (Defendants).


Lord Justice Birkett asks me to say that he has read the Judgments which we are about to deliver and agrees with them.


Mr Watt lives at Stamford in Lincolnshire.


He has twin sons, John and Richard, who are now just 15 years of age. They have passed the necessary examination which entitles them to a grammar school education. But there is as yet no State Grammar School in that part of Lincolnshire: and on that account the Kesteven County Council arrange for the boys of their district to go to an independent school of high repute at Stamford, known as the Stamford School; and the County Council pay the fees. In 1951 for instance, 44 boys went to the Stamford School and the County Council paid their tuition fees of £61. 10s. 0d. a year for each boy. In 1952 30 boys at £63. 15s. 0d. a year each. The County Council are quite willing that the twin sons of Mr Watt should go to the Stamford School as day boys and to pay the full fees for them there. But Mr. Watt does not want them to go there. He is a Roman Catholic and wants to send them away to a Roman Catholic Boarding School. He has already sent them there. He sent them to a Roman Catholic preparatory school in Monmouthshire and now they are at a Roman Catholic public school in Northamptonshire. These schools are recognised to be efficient and the tuition fees (excluding the boarding fees) are a little less than those at Stamford. They are only £60. Mr. Watt claims that the Kesteven County Council are liable by law to pay the full tuition fees at these schools to which he has chosen to send the boys.


I desire to say at the outset that the question in this case does not depend in the least on the religious views of the parent. The question would be the same if a member of the Church of England living in Stamford wished, for some reason or other, to send his boys away to a boarding school in some other part of the country. He might wish to send them there because it was his old school, or because the classics were well taught there, or because it was a co-educational school. The question in such a case would be just the same as this: Is the parent entitled to have the tuition fees paid by the County Council?


The rival contentions can be simply stated: The CountyCouncil say to the father: "If you wish to send your boys to a school of your own choice, you are of course at liberty to do so. Moreover we are quite ready to help you with the fees. It depends on what you can afford. We will see that you are put to no hardship. If you are poor, we will pay the whole fees. If you are well off, we will expect you to pay something yourself". I pause to say that the County Council are in fact paying quite a substantial part of the fees.


The father's retort is this: "That would be all very well if you had a State school in Stamford. I know that in that case, if I did not choose to send them to that school, I could not expect you to do more for me than you do. But you have no State school in Stamford. All you do is to make arrangements for the boys to go to an independent school in Stamford. You pay the tuition fees for the boys who go to that school without regard to the father's means. You should do the same for me at whatever school I choose to send them".


The short answer to the father's argument is, I think, this: whilst education is free in this country, it is only free at the schools which the County Council make available. I can find nothing in the Act which compels the County Council to pay the fees at any school which the father chooses. The duty of the County Council is plain. They must make schools available for all the pupils in their area. But they can fulfil this duty, not only by maintaining schools themselves, but also by making arrangements with certain other schools. They may for instance make a grant to aid a school and in return get a right to a number of free places. Or they may make arrangements with some particular independent school to take the boys. At all the schools which the County Council maintain themselves, no fees are payable. At the other school with which they make arrangements, they must provide free places or pay the fees in full. Once they have fulfilled their duty in one or other of these ways - either by maintaining schoolsthemselves, or by making arrangements with certain other schools - there is no more which they are bound to do. If a father wishes his child to go to yet another school of his own choice, with which the County Council have no arrangements, then he cannot claim as of right that the County Council shall pay the fees. He can then only expect assistance according to his means. Regulations have been made which empower the County Council to pay the whole or any part of the fees in any case where it would involve financial hardship on the father to pay them.


I think the position is clearly as I have stated it: but it was urged before us that independent schools stand in a special position. If the County Council have no school of their own, or no grant-aided school to which to send the boys, but have to send them to an independent school, then it was said that the father has a right to choose which independent school they should go to; and, and that corresponding to this right, the County Council are bound to pay the fees in full.


This argument was based on section 76 of the Act which says that "In the exercise and performance of all powers and duties conferred and imposed on them by this Act, the Minister and the local education authorities shall have regard to the general principle that, so far as is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents".


It is obvious that that section cannot stand by itself. It only applies in the exercise of some other power or duty contained in the Act. In this case it was said to apply in the exercise of section 8. It was said that, when there is no maintained or grant-aided school, the County Council have a duty under section 8 to make available an independent school and to pay the fees in full: and that, in exercising that duty, they must under section 76 have regard to the general principle that pupils are tobe educated in accordance with the wishes of their parents. Hence if there are two independent schools, one in Stamford and the other far away, both of which are efficient and charge the same tuition fees, the pupil should be educated at the one desired by the parents. All the more so when the school chosen by the parents is the cheaper.


I think that argument is mistaken. It assumes that the duty of the County Council under section 8 is to make available for the pupils any of the independent schools over the length and breadth of the country. That is not correct. Their duty is only to make available the particular independent school with which they have made arrangements. They must make arrangements for an efficient independent school to take the pupils from their area. They must get the Minister's approval to these arrangements: and they must then offer this school to the parents. This duty was fulfilled by the Kesteven County Council when they made the Stamford School available. Having done this, there was no occasion for section 76 to come into operation at all.


Even if it was the duty of the County Council to make available all the independent schools in the country nevertheless I do not think that section 76 means that every parent has a right to choose any of them he likes. Section 76 does not say that pupils must in all cases be educated in accordance with the wishes of their parents. It only lays down a general principle to which the County Council must have regard. This leaves it open to the County Council to have regard to other things as well, and also to make exceptions to the general principle if it thinks fit to do so. It cannot therefore be said that a County Council is at fault simply because it does not see fit to comply with the parent's wishes. And that is all that the father's complaint comes to in this case.


In any case I cannot myself see any evidence to suggest that the County Council in this case did not have regard to thegeneral principle. The correspondence which passed on the matter showed that it was specifically brought to their attention and nevertheless they thought that "they would place themselves in an impossible position vis-a-vis parents in other parts of the county if they were to do what has been asked of them". I can well see what they mean. If they paid the full fees in this case, it would mean that every parent in the county, who senthis boys to boarding school, could come and ask the County Council to pay the tuition fees, no matter how rich he was. The father in this case is asking for preferential treatment for himself over and above the other parents who send...

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24 cases
  • CM HS 169 2011
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 1 June 2011
    ...14. The materially identical predecessor to section 9 was section 76 of the Education Act 1944. In Watt v Kesteven County Council [1955] 1 QB 408, Kesteven did not operate a grammar school itself but had contractual arrangements with Stamford School, an independent school, to which it could......
  • Meade v Haringey London Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 March 1979
    ...England 581. Conversely, when the local education authority is acting within its powers, there is no recourse to the courts, see Watt v. Kesteven County Council (1955) 1 Queen's Bench 408, Smith v. Inner London Education Authority (1978) 1 All England 411. 48 This principle has received pow......
  • E (A Minor) v Dorset CC, C v Hampshire CC
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
    ...83 LGR 219. Van Oppen v Clerk to The Bedford Charity Trustees [1990] 1 WLR 235; [1989] 3 All ER 389. Watt v Kesteven County Council [1955] 1 QB 408; [1955] 2 WLR 499; [1955] 1 All ER Wilford v West Riding of Yorkshire County Council [1908] 1 KB 685. Williams v Eady (1893) 10 TLR 41. Wood v ......
  • Michael Catchpole and Another v Buckinghamshire County Council and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 May 1998
    ...that section 9 is to be limited in this way by reference to the decision of the Court of Appeal in Watt v Kesteven County Council [1955] 1 QB 408. That case concerned the original predecessor of section 9, namely section 76 of the Education Act 1944, which I need not set out. It was also c......
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