Local schools for local children

January 3rd, 2012 by James Cornwell

The Administrative Court has held in R (on the application of Roberts) v Welsh Ministers and Cardiff City Council [2011] EWHC 3416 (Admin) (https://www.bailii.org/ew/cases/EWHC/Admin/2011/3416.html) that a local authority is not precluded from adopting a policy which seeks to match school places with the likely demand from children within the catchment area of the school.

The case concerned a challenge to the decision of the relevant Welsh Minister to approve a proposal from Cardiff City Council to reorganise primary provision in the Whitchurch area of the city. Two English medium schools (Eglwys Wen and Eglwys Newydd – “EW” and “EN”) were to be closed and replaced by a single school located at a site shared by EW and a Welsh-medium primary school, Ysgol Melin Gruffydd.

Section 9 of the Education Act 1996 (“the 1996 Act”) imposes a duty upon the Secretary of State (or, in Wales, the Welsh Assembly Government) and local authorities to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. Section 86(1) of the School Standards and Framework Act 1998 (“the 1998 Act”) obliges a local authority to make arrangements for enabling the parent of a child to express a preference as to the school at which he wishes the child’s education to be provided.  Section 86(2) makes it mandatory for a local authority to comply with that parental preference but the duty does not apply if the preference would prejudice the provision of efficient education or the efficient use of resources.

Wyn Williams J identified the “nub” of one plank of the claimant’s challenge to be to the local authority’s avowed policy of “local schools for local children” (i.e. a policy essentially of ensuring that there were enough places for children in the catchment area but closing surplus places) (see at [123]). The Judge held that the effect of the above statutory provisions was that all local authorities have a duty to comply with parental preference unless compliance with the preference would prejudice the provision of efficient education or efficient use of resources within their administrative area. However, these did not preclude the adoption of a policy which sought to match school places with the likely demand from children within the catchment area of the school. Nor did the provisions make it unlawful for a local authority to have a policy which encourages children to attend the school in whose catchment area they reside. Wyn Williams J held that a local authority has an unqualified obligation to secure efficient primary education to meet the needs of the population of its area (under section 13 of the 1996 Act) and it was open to them to conclude that an appropriate means of securing such efficient education for the whole of its area was to seek to achieve a reasonable match between the number of places at a particular school and the demands for such places from the catchment area of the school. See at [124-125].

The Judge did not accept that, because a possible effect of the proposal might be that pupils who would attend EN or EW (should those schools continue to exist) but who resided out of their catchment areas would be forced to attend a school other than the new school which was intended to replace them, the policy was thereby in conflict with section 9 of the 1996 Act or section 86 of the 1998 Act. The aim of the policy was the provision of efficient education in whole of the administrative area and parental choice in any given case and, more particularly, the fact that choice in an individual case might be denied was not a reason for concluding that the policy was unlawful. See at [127].

Also of wider significance within Wales (although not England) is Wyn Williams J’s consideration of the Welsh Assembly Government’s Circular 21/2009, “School Organisation Proposals”. Section 2 of the Circular contains guidance relating to “popular” schools. The question arose as to whether the Minister should have treated EN as a “popular” school. The term “popular school” is not defined in the Circular. The Judge held, applying R (Raissi) v Secretary of State for the Home Department [2008] QB 836 that it fell to the court to determine the meaning of guidance contained in the Circular (rather than the court being limited to assessing whether the Minister’s interpretation of the guidance was a rational one). The Judge held that, in the context of the Circular, a reasonable and literate person would regard a school as popular only if the school’s surplus places were 10% or less over a period of time (see at [45-46]). The Judge further held that one of the bases on which the Minister had in fact decided that EN was not a popular school, namely relying on the number of surplus places at a particular moment in time when he knew or ought to have known that  the number was very unlikely to be properly representative, was irrational (see at [55-58]).

However the Judge decided not to quash the decision because he was satisfied that had the Minister applied the correct test there was no material that would have permitted the conclusion that EN was a popular school (see at [67-70], [149-162]). Similarly the Judge’s finding that the Minister failed to comply with his duty under Secretary of State for Education v Science v Tameside Metropolitan Borough Council [1977] AC 1014 to ascertain a proper factual basis for his assessment of the capital costs of implementing the proposal (see at [93-97]) did not lead to the decision being quashed because the issue in relation to costs simply did not arise if EN was not a popular school (see at [148], [158]).

Wyn Williams J also considered and rejected a number of other grounds of challenge specific to the particular facts of the case.

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