WC (by her mother and litigation friend TL) v Somerset County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn,Mrs Justice Steyn DBE |
| Judgment Date | 04 November 2021 |
| Neutral Citation | [2021] EWHC 2936 (Admin) |
| Docket Number | Case No: CO/1279/2021 and CO/1894/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
and
[2021] EWHC 2936 (Admin)
Mrs Justice Steyn DBE
Case No: CO/1279/2021 and CO/1894/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Broach and Gethin Thomas (instructed by Irwin Mitchell LLP) for the First Claimant
Stephen Broach and Rachel Sullivan (instructed by Irwin Mitchell LLP) for the Second Claimant
Sarah Hannett QC (instructed by Somerset County Council Legal Services) for the Defendant
Hearing dates: 14 and 15 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
The claimants seek judicial review of Somerset County Council's decision dated 17 March 2021 (“the decision”) to approve the proposals contained in a statutory notice dated 27 January 2021 concerning a reorganisation of schools in the Crewkerne and Ilminster area. They have brought separate claims which have been heard and determined together.
The first claimant is 7 years old. She is a pupil in year 2 at Misterton Church of England First School (“Misterton”). Misterton is a voluntary controlled school located in the village of Misterton, near the town of Crewkerne in Somerset. Misterton is a first school, educating children in the five year groups from reception to year 4, that is, between the ages of 4 and 9. It is also, as its name indicates, a Church of England (“CofE”) school. Misterton has been designated a rural school for the purposes of the Education and Inspections Act 2006.
The second claimant is 5 years old. He is a pupil in year 1 at Greenfylde CofE First School (“Greenfylde”). Greenfylde is located in the town of Ilminster in Somerset. Like Misterton, it is a voluntary controlled, CofE, first school, admitting children between the ages of 4 and 9, and it has been designated a rural school.
In accordance with the orders of Morris J dated 9 August 2021 in each claim, references to “WC” and “BB” are to the first and second claimant and references to “TL” and “HP” are, respectively, to their mothers (who also act as their litigation friends in these proceedings).
Currently, the schools in the area are in a three-tier structure, consisting of first, middle and upper schools (save to the extent that there are already three primary schools). The effect of the decision is to change the existing three-tier structure to a two-tier structure, consisting of primary and secondary schools. In broad terms, the proposals involve: (i) the closure of Misterton; (ii) the amalgamation of Greenfylde and Swanmead Community School (a middle school for children aged 9–13) to form a single new primary school on a split site; (iii) changing Wadham School (an upper school for children aged 13–18) into a secondary school (admitting children aged 11–18); and (iv) changing four other first schools and one middle school into primary schools.
The principal focus of the first claimant's challenge is the decision to close her current school, Misterton; while the main focus of the second claimant's challenge is the decision to amalgamate Greenfylde and Swanmead, and so close Swanmead, the non-denominational middle school which his mother wished him to attend from year 5 to year 8. However, both claimants challenge the decision as a whole.
The seven grounds on which the decision is challenged are:
i) Ground one: The defendant failed to carry out a lawful consultation;
ii) Ground two: The defendant has unlawfully predetermined the outcome;
iii) Ground three: The defendant failed to take proper account of the presumption against the closure of a rural school;
iv) Ground four: The defendant failed to have due regard to the needs expressed in section 149(1)(a), (b) and (3) in respect of those with the protected characteristics of “disability” (including pupils with special educational needs) and “religion or belief” (in particular pupils with no religious faith), in breach of section 149(1) of the Equality Act 2010;
v) Ground five: The defendant's decision was indirectly discriminatory against those with no religious beliefs, in breach of section 19 of the Equality Act 2010;
vi) Ground six: The decision is incompatible with article 14 of the European Convention on Human Rights (considered in conjunction with article 8, 9 or article 2 of protocol 1), and so in breach of s.6 of the Human Rights Act 1998; and
vii) Ground seven: The decision was irrational.
I have amalgamated (and so partially renumbered) the two claimants' grounds. Both claimants pursue grounds one, two and seven (ground seven corresponding to WC's ground 4 and BB's ground 6). The first claimant alone pursues ground three. The second claimant alone pursues grounds four, five and six (corresponding to his grounds 2, 3 and 5).
In two separate orders sealed on 9 August 2021, Morris J granted the claimants permission to apply for judicial review on all grounds save the one I have called ground four. The application for permission on ground four was adjourned to be listed in court as a “rolled-up hearing”, at the same time as all other grounds, to allow the issues concerning standing (as a potential bar to permission) to be fully argued.
I am grateful to all counsel for the assistance they have provided to the Court in the presentation of their oral and written arguments in this matter.
B. The legislative framework
(a) Duties to secure sufficient schools and efficient primary and secondary education
The defendant's general duties to ensure the availability of sufficient and efficient primary and secondary education to meet the needs of the population in its area are contained in sections 13 and 14 of the Education Act 1996 (“ EA 1996”).
Section 13(1) of the EA 1996 provides:
“ A local authority shall (so far as their powers enable them to do so) contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education and section education … are available to meet the needs of the population of their area.” (emphasis added)
Section 14 of the EA 1996 provides (insofar as relevant):
“(1) A local authority shall secure that sufficient schools for providing—
(a) primary education, and
(b) education that is secondary education by virtue of section 2(2)(a),
are available for their area.
(2) The schools available for an area shall not be regarded as sufficient for the purposes of subsection (1) unless they are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education.
(3) In subsection (2) “appropriate education” means education which offers such variety of instruction and training as may be desirable in view of—
(a) the pupils' different ages, abilities and aptitudes, and
(b) the different periods for which they may be expected to remain at school,
including practical instruction and training appropriate to their different needs.
…
(6) In exercising their functions under this section, a local authority shall in particular have regard to—
(a) the need for securing that primary and secondary education are provided in separate schools;
…
(7) The duty imposed by subsection (6)(a) does not apply in relation to middle schools or special schools.” (emphasis added)
The terms “primary education” and “secondary education” are defined in section 2 of the EA 1996. These are macro-level target duties, rather than statutory obligations enforceable by individuals: see R v Inner London Education Authority ex parte Ali (1990) 2 Admin LR 822, per Woolf J at 828–829 and R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin), [2021] ELR 110, per Morris J at [44].
(b) School closures
The proposals approved by the challenged decision engage two legal and policy regimes: the regime for “discontinuing” maintained schools and the regime for making “significant changes” to maintained schools.
The legislative provisions that apply in relation to the closure of a maintained school are sections 15 and 16 of the Education and Inspections Act 2006 (“EIA 2006”) and the School Organisation (Establishment and Discontinuance of Schools) Regulations 2013 (“the Discontinuance Regulations”).
Section 15 of the EIA 2006 provides (insofar as relevant):
“(1) Where a local authority in England propose to discontinue–
(a) a community, foundation or voluntary school,
…
the authority must publish their proposals under this section.
(2) …
(3) Proposals under this section must–
(a) contain such information, and
(b) be published in such manner,
as may be prescribed.
(4) The matters to which the relevant body must have regard in formulating any proposals under this section in relation to a rural primary school include–
(a) the likely effect of the discontinuance of the school on the local community,
(b) the availability, and likely cost to the local authority, of transport to other schools,
(c) any increase in the use of motor vehicles which is likely to result from the discontinuance of the school, and the likely effects of any such increase, and
(d) any alternatives to the discontinuance of the school;
and in considering these matters the relevant body must have regard to any guidance given from time to time by the Secretary of State.
…
(6) Schedule 2 has effect in relation...
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(1) HPSPC Ltd v Secretary of State for Education
...elements of alleged unfairness in a consultation process both individually and cumulatively: R (WC) v Somerset County Council [2021] EWHC 2936 (Admin) at [112] and R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472; (2012) 12......