Anna Dannreuther analyses R (on the application of WC (by her mother and litigation friend) and another) v Somerset County Council  EWHC 2936 (Admin)
This case involved a challenge by two schoolchildren (with their mothers acting as litigation friends) to Somerset County Council’s (‘SCC’) decision to approve a statutory proposal to re-organise schools in its area under the Education and Inspections Act 2006 (EIA 2006). The decision would have the effect of replacing the existing three-tier structure with a two-tier structure of primary and secondary schools, and closing or merging the claimants’ schools. The claimants challenged the decision on various public law grounds, including irrationality, failure to consult, unlawfully predetermining the outcome, failure to take into account the presumption against closure of rural schools, indirect discrimination, failure to apply the public sector equality duty, and breach of section 6 of the Human Rights Act 1998 (Article 14 and 8, 9 and Article 1 of Protocol 2). Permission was granted on all grounds. However, the judge dismissed each ground and found that SCC had not erred in its decision to approve the proposals. The judge provided helpful guidance on local authorities’ duties to consult, and particularly when fairness will require consultation of alternative options post-Moseley (R (Moseley) v Haringey London Borough Council, as well as helpful analyses of the law on the remaining grounds.
What are the practical implications of this case?
The judgment provides a helpful summary on the public law duty to consult, and particularly whether the defendant was required to consult on alternative options at Stage 1 of the statutory consultation procedure. The court held the relevant test to be ‘whether the decision not to consult on alternative options during the Stage 1 consultation was so unfair as to be unlawful’ (para ). There is no additional hurdle requiring the court to find that something has gone clearly and radically wrong, as the defendant had argued.
Relevant to the question of fairness is the question of whether there is an obligation to consult on alternative options (the higher level Moseley duty) or simply make ‘passing reference’ to them in consultation documents (the lower level Moseley duty). The judge stated that whether a higher level or lower level duty applies is a ‘highly fact specific question’. The court concluded that, taking into account the statutory context of the consultation, and the purpose underlying the statutory duty to consult, the higher level duty did not apply. While the lower level duty applied, it had been clearly met because sufficient reference was made to alternative options to ‘more than meet a standard of fairness’ requiring passing reference to be made. The judge’s decision came down to the facts in this case, and it was important that the defendant had consulted on six models in 2019, including a ‘no change’ option. Public bodies will need to consider the statutory context, the purpose of statutory consultation, and what consultees can reasonably be taken to know about the proposal and its context when determining whether a higher or lower level Moseley duty applies (per Mrs Justice Jefford’s observations in R (AA) v Rotherham Metropolitan Borough Council  EWHC 3529 (Admin) (‘AA’) (at para )).
The judgment also contains helpful guidance for local authorities on the public sector equality duty (‘PSED’), indirect discrimination and Convention rights. Of particular note is that the court referred to SCC’s Equality Impact Assessments (‘EIAs’) as evidence that the PSED duties had been complied with (noting that a ‘combined mark’ had been given reflecting the positive impact of the decision on those choosing religious schools and those choosing non-religious schools). The court found the legitimate aims of providing a coherent and efficient system of education and saving public resources were legitimate aims for the purposes of indirect discrimination and Convention rights.
What was the background?
Two schoolchildren living in the Crewkerne and Ilminster area of Somerset challenged the defendant’s decision to approve statutory proposals to re-organise schools in the area. The decision had the effect of changing schools in the area from a three-tier structure of first, middle and upper schools, to a two-tier structure of primary and secondary schools. It also entailed closing the first claimant’s school, Misterton Church of England (‘CofE’) First School, and merging the second claimant’s school Greenfylde CofE First School with another local school.
Circumstances leading to the decision
Due to perceived funding problems with the school structure, the defendant commissioned a review of education in the area in early 2019, and sent the resultant report to staff, governors and parents/carers of pupils in June 2019, with a questionnaire to gauge respondents’ views of the options. The feedback from the questionnaire was generally negative, with the strongest negative feedback for closing small village primaries and consolidating around large primaries in the towns.
Procedure preceding the decision
In accordance with EIA 2006, s 16(1), SCC then undertook a four-week period of consultation, prior to publication of a statutory proposal under EIA 2006, s 15. Only one model was considered. This model entailed various structural changes to local schools, including discontinuing Misterton and one other school (to enable its merger with Greenfylde) and making prescribed alterations to six other schools. There was significant opposition to the proposals. Nonetheless, on 27 January 2021 SCC published a statutory proposal containing notice of SCC’s intention to proceed with the model consulted on, without any significant changes. A four-week period followed for written representations. Over two thirds of the responses were negative about all aspects of the proposal. On 17 March 2021, SCC’s cabinet approved the statutory proposal, subject to some modifications.
What did the court decide?
The court was faced with seven public law challenges, all of which were dismissed.
Duty to consult
On the duty to consult, the judge decided that, given there had been a ‘non-statutory consultation exercise’ in the form of the 2019 questionnaire, among certain other matters, the defendant’s decision not to consult on alternative options at the Stage 1 consultation phrase was not so unfair as to be unlawful. The judge noted Jefford J’s observations in AA that it is not necessary in all cases to set out alternatives to a particular proposal, and fairness requires that to be done only where that is necessary to allow informed or intelligent responses. The question of whether setting out alternatives is necessary is a broad question, requiring consideration of the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can reasonably be taken to know about the proposal and its context. There is a difference between the Moseley higher level duty to consult on alternative options and the lower level duty to make passing reference to alternative options. Whether either duty applies is a ‘highly fact specific question’ depending on the purposes for which the statutory obligations to consult have been imposed. Here it was to protect the interests of those likely to be affected by the proposals and generate better decisions. Those purposes had been met, because of the 2019 non-statutory consultation, and the fact that the principles derived therefrom had been adopted in developing the model ultimately consulted on in the statutory process. The judge also took into account that the consultation documents would have been ‘far too long and complex’ if all options had been set out, and that they should be ‘clear and understandable’, particularly for parents and pupils.
No predetermination had taken place because, on the evidence, ‘the defendant was open to the possibility that the consultation might reveal that a different configuration was the most desirable and sustainable or that the proposed model was so flawed that it needed to be fundamentally changed’. The legal test for ‘appearance of predetermination’ was whether ‘the fair-minded and informed observer would think that there was a real possibility that the decisionmaker had predetermined the matter, in the sense of closing its mind to the merits of the matter: R (Lewis) v Persimmon Homes Teesside Ltd  EWCA Civ 746,  1 WLR 83 per Rix LJ at –’. The court found the evidence indicated SCC approached the consultation and decision-making process with an open mind.
Presumption against closure of rural schools
The Closure guidance contains a presumption against the closure of rural schools (such as Misterton), meaning there must be a strong case for closure. Local authorities must have regard to the Closure Guidance under EIA 2006, s 16(3). The judge found the presumption only begins when authorities are formulating the statutory proposal under EIA 2006, s 15, and not before, as the claimants had argued. A realistic and proportionate approach to evidence of compliance with the duty must be taken. Evidence of compliance is likely to be contained in the proposal itself, rather than extraneous documents. The statutory proposal contained reference to the presumption, and it was not disputed SCC had complied with the duty at the Stage 1 consultation, which was the relevant time.
Did SCC fail to have regard to the need to eliminate unlawful discrimination and advance equality of opportunity in respect of those with the protected characteristics of ‘disability’ and ‘religion or belief’?:
- disability—No, since the proposal was considered to have a ‘positive outcome’ on those with a disability in so far as, for example, adaptations and refurbishments were to be undertaken and could ‘raise standards’. There was notably no expert evidence to the contrary
- religion or belief—The EIA stated there would be a ‘positive outcome’ for those with the protected characteristic of religion or belief. The judge found this was because a ‘combined mark was given’ reflecting the positive impact on those choosing CofE schools (who would now have provision from years five to eight as a result of the decision) and the ‘broadly neutral impact’ on those choosing non-denominational schools in the area as a whole. The judge stated ‘[i]t is not appropriate to engage in an overly-forensic critique of an equality impact assessment’
The second claimant argued that pupils of ‘no religion’ would be at a particular disadvantage because they will no longer be able to attend a non-religious school in Ilminster. Swanmead, the only non-denominational school in Ilminster, would become part of a split site CofE primary school. Non-denominational school places in Ilminster will be reduced to zero. The judge found that the decision puts people in Ilminster with no religious belief at a particular disadvantage. However, the court found it was justified on the legitimate aims of providing a coherent and efficient system of education and saving public resources, particularly given the disadvantage was a modest one, felt most acutely in Ilminster. In the Crewkerne and Ilminster area as a whole, secular primary school places increased. There will be no secular secondary school, but that is because there is currently no non-faith upper school.
Article 14 ECHR
The relevant law is in Re McLaughlin  UKSC 48,  1 WLR 4250. The court found the decision engages Articles 14, 9, and Article 2 Protocol 1 ECHR, and there has been a difference in treatment for children with no religion, but this is only discriminatory if there is no objective and reasonable justification. Relying on the analysis on the indirect discrimination ground, the court found a reasonable relationship of proportionality between the means employed and the legitimate aims sought to be realised.
It did not follow that a high degree of opposition to the proposals rendered the decision irrational. Further, SCC had not breached the Tameside duty of inquiry by failing to undertake a detailed cost/benefit analysis because it gave a rational reason for not doing so.
- Court: Administrative Court
- Judge: Honourable Mrs Justice Steyn
- Date of judgment: 04 November 2021
This analysis was first published on Lexis®PSL on 24/11/2021 and can be found here (subscription required).