Roberts, R (on the application of) v The Welsh Ministers & Anor

On 25 May 2010 the Interested Party published proposals under the School Standards and Framework Act 1998 which were intended to change the way in which primary education was delivered in the Whitchurch area of Cardiff. It was proposed that two English medium schools – Eglwys Wen and Eglwys Newydd – should be closed and replaced by a single school located at a site shared between Eglwys Wen and a Welsh-medium primary school called Ysgol Melin Gruffydd. It was also proposed that Ysgol Melin Gruffydd should be relocated to the site occupied by Eglwys Newydd and its capacity expanded substantially. The proposals generated very significant opposition in the locality. In the face of such opposition, the proposals required the approval of the Defendant. By letter dated 28 January 2011 (hereinafter referred to as the “decision letter”) the Welsh Minister responsible for education (hereinafter referred to as “the Defendant”) gave his approval.

These proceedings were commenced on 27 April 2011. The Claimant put forward six grounds upon which she challenged the Defendant’s decision. Initially, permission to apply for judicial review was refused; following an oral hearing before HH Judge Curran QC, sitting as a Judge of the High Court, the Claimant was given permission to proceed with the claim upon five of the six grounds.

The claim for judicial review was heard by me during the week commencing 26 September 2011. The time estimate for trial was two days. However, the hearing spanned two and a half days and that proved to be insufficient. By the conclusion of the hearing I had heard oral submissions from the Claimant, Defendant and Interested Party but the Claimant had not replied as was her right. I decided that the reply should take the form of written representations. I reached that decision because it was not practicable to arrange a time and place at which oral submissions could be delivered in an appropriate timescale. I directed that the Claimant should serve and file a reply by 4pm 30 September 2011 – a time period I subsequently extended.

Mr Bowen QC, on behalf of the Claimant, filed the reply on 4 October 2011. It is a long and complicated document. The court was also supplied with copies of two cases to which no previous reference had been made and an extract from a leading textbook on judicial review to which no previous reference had been made.

On the same day as Mr. Bowen QC filed the reply the Claimant served and filed a witness statement made by Mr. Michael Phillips. The Claimant did not seek permission to file and serve this evidence. On any view she should have done so.

Mr. Lewis QC on behalf of the Defendant immediately protested about aspects of the reply, the new “authorities” and the attempt to rely upon new evidence. He provided a written note on these topics on 5 October 2011.

On 11 October 2011 Mr. Bowen QC sent an email to the court and to the lawyers for the Defendant and Interested Party. He attached to that email yet another case. I will identify the point raised in the email in a later section of this judgment.

On 18 October 2011 Mr. Lewis QC provided another note to the court. Further, on the same day, his instructing solicitor sent to the court a witness statement made by Mr. Paul Williams. This witness statement is dated 18 October 2011; it is the third witness statement made by Mr. Williams during the course of these proceedings. I should point out, however, that in his note Mr. Lewis QC sought permission to rely upon this evidence and he pointed out that the same was being served only as a response to the evidence which had been served, without permission, by the Claimant.

The service of evidence without permission following the conclusion of the oral hearing was not warranted. It is a practice to be discouraged. The best way of doing that is to ignore the evidence; that is what I have done in this case. That means, too, that I did not consider Mr Williams’ third witness statement although, as I have said, the Defendant did seek permission to rely upon it.

Section 13(1) Education Act 1996 imposes upon a local authority an obligation to contribute towards the “spiritual, moral, mental and physical development of the community by securing that efficient primary education….[is] available to meet the needs of the population of their area.” Section 14 provides:-

“(1)

A local authority shall secure that sufficient schools for providing –

(a)

primary education, and

(b)

….

are available for their area.

(2)

The schools available for an area shall not be regarded as sufficient for the purposes of sub-section (1) unless they are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education.”

Parental preference is also the subject of provisions within the School Standards and Framework Act 1998. Section 86(1) of that Act obliges a local authority to make arrangements for enabling the parent of a child in the area of the authority to express a preference as to the school at which he wishes education to be provided for his child and to give reasons for his preference. Section 86(2) and (3) are in the following terms:-

“(2)

Subject to sub-section 3….the admission authority for a maintained school shall comply with any preference expressed in accordance with arrangements made under sub-section 1

(3)

the duty imposed by sub-section (2) does not apply –

(a)

if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources; or…..

(c)

if the arrangements for admission to the preferred school –

(i)

are wholly based on selection by reference to ability or aptitude, and

(ii)

are so based with the view to admitting only pupils with high ability or with aptitude,

(iii)

and compliance with the preference would be incompatible with selection under those arrangements.”

Section 28 of the 1998 Act contains provisions relating to the establishment of schools in Wales. Section 29 is concerned with the discontinuance of schools. Sub-section (1) provides that where a local authority in Wales proposes to discontinue a community, foundation or voluntary school the authority shall publish proposals. Sub-section (3) provides that proposals under the section shall contain such information and be published in such manner as may be prescribed. Sub-section (4) provides for consultation before the publication of proposals. It also provides that “…in discharging their duty under [the] subsection the relevant body shall have regard to any guidance given from time to time by the Secretary of State”. 29(6) and (7) are in these terms:-

“(6)

The relevant body shall send –

(a)

a copy of any proposals published under this section, and

(b)

such information in connection with those proposals as may be prescribed, to the Assembly.

(7)

Schedule 6 has effect in relation to the procedure for dealing with proposals under this section and their implementation.”

Paragraph 7 of Schedule 6 makes provision for any person to make objection to any proposals published under section 29 of the 1998 Act. Paragraph 7(2) provides:-

“Where the proposals were published by a local authority –

(a)

any objections under this paragraph should be sent to the authority within such period as may be prescribed (“the objection period”); and

(b)

within such period as may be prescribed the authority shall send to the Assembly copies of all objections made (and not withdrawn in writing) within the objection period, together with the authority’s observations on them.”

Paragraph 8 of Schedule 6 specifies that proposals published under section 29 require approval by the Assembly if objections to the proposals have been made in accordance with paragraph 7 (and not withdrawn). Paragraph 8(2) provides:-

“Where any proposals require approval under this paragraph, the Assembly may –

(a)

reject the proposals,

(b)

approve them without modification, or

(c)

approve them with such modifications as it thinks desirable after consulting such persons or bodies as may be prescribed.

(d)

any approval under this paragraph may be expressed to take effect only if an event specified in the approval occurs by a date so specified.”

Section 29(4) of the 1998 Act imposes an obligation upon local authorities to have regard to any guidance issued by the Defendant when preparing proposals for publication under the section. (There is an identical duty imposed upon any local authority which publishes proposals under section 28 – see section 28(5)).

In September 1999 the National Assembly for Wales/the Welsh Assembly Government published Circular 9/1999 entitled “Organisation of School Places”. It contained what it described as “Key Considerations” to be taken into account in the “determination of proposals to change the pattern of school provision.” In September 2009 the Welsh Assembly Government published further guidance (Circular 21/2009) entitled “School Organisation Proposals”. Both Circulars 9/1999 and 21/2009 contained guidance to which the Interested Party was obliged to have regard at the time it published its proposals in May 2010 although it is sufficient in this judgment to concentrate upon the guidance contained within Circular 21/2009 .

Section 1 of Circular 21/2009 is entitled “Key Principles, Policies and Issues”. It runs to many pages and as paragraphs 1.7 and 1.8 make clear its primary object is to provide guidance to local authorities (and others specified in the document) in relation to the process of formulating proposals prior to the publication of those proposals under section 28 or 29 of the 1998 Act. Section 2 of the Circular is headed “Consideration of Proposals by the Welsh Ministers”. This section provides guidance to the Defendant about how it should exercise its powers under Paragraph 8 of Schedule 6 of the 1998 Act. It is worth noting that there is no statutory obligation upon the Defendant to have regard to this or any other guidance before exercising its powers under Paragraph 8 of Schedule 6. Nonetheless, Mr. Clive Lewis QC acknowledges that the Defendant is obliged to take account of Section 2 of Circular 21/2009 when deciding whether or not to approve proposals published by a local authority. That concession is not surprising; paragraph 1. 8 of the Circular says in terms that the “Second Section sets outs the factors to be taken into account by the Welsh Ministers in determining proposals.”

During the course of the oral hearing there was disagreement about whether a local authority was obliged to have regard to Section 2 of the Circular when formulating proposals prior to publication. Mr. Roddick QC, in particular, submitted that there was no such obligation. Upon a straightforward reading of paragraph 1.8 of the Circular Mr. Roddick QC may very well be correct. However, I can also see an argument that it would make no sense for a local authority to ignore guidance contained in Section 2 of the Circular which it knows would be taken into account by the Defendant when determining whether or not to approve a published proposal.

This issue featured in this case during the course of the argument because the first ground upon which the Claimant challenges the Defendant’s decision is that he failed to interpret and apply the guidance contained within Section 2 of the Circular as it applies to a “popular” school. The Claimant submits that the Interested party never addressed whether Eglwys Newydd or, for that matter Eglwys Wen, were “popular” schools before it published its proposals for those schools and her case is that it should have done. To repeat, I can see force in the suggestion that a local authority should have regard to policy guidance contained in Section 2 of the Circular when it knows that such policy guidance is bound to play an important part in the Defendant’s decision making process. If it is obvious, for example, that a school will be regarded by the Defendant as “popular” it would seem strange if the local authority can ignore that aspect and the consequences which flow from it in accordance with the Circular.

As it happens, my decision about whether the Defendant has acted unlawfully in this case does not turn upon whether the Interested Party was obliged to have regard to Section 2 of Circular 21/2009. Accordingly, I express no definitive view upon whether the statutory obligation of a local authority to have regard to policy guidance issued by the Defendant extends to Section 2 of the Circular. If that point ever becomes crucial to the lawfulness of any decision or action on the part of a local authority it is better decided in that context.

In the decision letter the Defendant wrote:-

“The Minister notes that some objectors have drawn attention to the fact that Circular 21/2009 states that the Welsh Ministers would not normally be prepared to approve the closure of a popular and effective school unless evidence is presented that the alternative proposed would offer at least equivalent quality and diversity of education at a lower total cost than would have been available had the school remained open. The Minister does not consider that either Eglwys Newydd or Eglwys Wen fall within the definition of “popular” for the purposes of this paragraph of Circular 21/2009. He recognises that both are effective schools but since they cater for only about 42% and 44% of catchment pupils respectively, and also have around 17 and 91 spare places respectively, he does not consider it appropriate to describe them as popular in the sense set out in the Circular.”

Subsequently, in its reply to the pre-action protocol letter the Defendant acknowledged that the reference to 91 spare places was erroneous and that the accurate figure was 81 spare places.

In the Statement of Facts and Grounds the Claimant alleged that the Defendant’s conclusion that Eglwys Newydd was not a popular school was unlawful because a) it was irrational and b) it failed to take account of material considerations. That is the stance which Mr Bowen QC adopted, broadly speaking, in his skeleton argument. Further, Mr Bowen’s written reply proceeded on the basis that the Defendant’s conclusion on the popularity of Eglwys Newydd was challenged on the basis of irrationality and a failure to take account of material considerations. It seems to me to be implicit in this approach that the Claimant accepted that it was for the Defendant to interpret Circular 21/2009 and that provided that the Defendant’s interpretation was neither irrational nor unreasonable it was not unlawful.

Some days after serving his reply Mr Bowen QC adopted a different position. In his e-mail of 11 October 2011 he urged me to conclude, in effect, that a ministerial policy statement can have one meaning only and that if the parties to litigation do not agree upon the meaning of the policy it is for the court to determine what it means. Mr Bowen QC now submits that the court should not simply consider whether the meaning attributed by the Defendant to the words of the policy was reasonable or rational. He submits that it is for the court to decide what meaning should be attributed to the guidance contained within Circular 21/2009 and that if the Minister’s interpretation is at odds with the court’s interpretation it is the court’s interpretation which must prevail. Mr Bowen QC relies upon the decision of the Court of Appeal in R (Raissi) v Secretary of State for the Home Department [2008] QB 836 for this approach.

Not surprisingly, Mr Lewis QC, on behalf of the Defendant, protested about a change in position made many days after service of a written reply. That said, Mr Lewis has taken the precaution of providing written submissions upon this issue.

In my judgment, I have no option but to determine the correct legal basis upon which I should consider whether the Defendant has lawfully interpreted and/or applied its own policy guidance. It is, of course, extremely unfortunate that the submissions in this case have evolved in the manner which I have described. My task, however, is to apply the correct legal principles.

I deal first with the decision in Raissi. The facts could not be further removed from the facts in the instant case. Mr Raissi was the subject of extradition proceedings instituted by the Government of the United States of America. The extradition warrant related to minor holding charges for which the Claimant would normally have been entitled to bail. However, the Crown Prosecution Service, representing the US Government, sought and obtained his remand in custody on the basis of unsubstantiated assertions that he was a terrorist involved in the World Trade Centre atrocities on 11 September 2001.

As time went by it became clear that there was no evidence to support the assertion that the Claimant was involved in any kind of terrorism. Nonetheless, the Claimant spent four and a half months in custody.

Following his release the Claimant applied to the Home Secretary for compensation for his detention under an ex gratia scheme introduced in a Ministerial statement to Parliament in November 1985. The Minister refused the application for compensation and the Claimant sought judicial review of his decision. One of the crucial issues in the case was the meaning to be attributed to the Ministerial statement.

The Divisional Court dismissed the claim for judicial review holding that it was for the Home Secretary to decide the meaning and scope of the Ministerial statement provided only that his interpretation had to be one which a reasonable Minister could reach and/or was rational.

The Court of Appeal disagreed with this approach – see in particular paragraphs 107 to 123 in which a number of authorities were discussed and analysed. The court concluded that the test to be applied in interpreting a Ministerial policy statement was to ask what a reasonable and literate man’s understanding of it would be, and not whether the meaning attributed by the Minister to the words of the policy was a reasonable or rational one.

There is nothing in paragraphs 107 to 123 of the judgment which suggests that the court was confining its approach to the particular Ministerial statement at issue in Raissi. On the contrary, it seems to me that the court was laying down general principles which were intended to be applicable when an issue arises as to the meaning to be attributed to a policy statement or policy guidance issued by a Minister or government department. Paragraph 122 of Raissi reads as follows:-

“122.

We have some difficulty with the reasonable meaning approach. One presumes that, if the Minister has applied a meaning to some part of the policy, then the Minister, without announcing any change in the policy, could not in a later case adopt another meaning, arguing that both meanings are reasonable and it is up to him or her to choose which meaning to use in any particular case. If that is right, then the reasonable meaning approach would only benefit the Minister when interpreting the meaning of a particular part of a policy for the first time.”

This paragraph, in particular, confirms me in my view that Raissi lays down general principles; that view is supported, too, from the breadth of the authorities which were considered by the court. Even if I am wrong in my view that Raissi is of general application, however, it must be the case from the terms of the judgment that it applies to policy statements and guidance issued by a Minister/government department unless some principled reason exists to justify a different approach.

In his Note of 18 October 2011 Mr Lewis QC suggests that there is no dispute about interpretation in this case. He argues that the issue before me is simply whether the Defendant’s conclusion that Eglwys Newydd was not a popular school was a lawful one.

It is true that none of the written or oral submissions in this case made before 11 October 2011 address in terms the meaning to be attributed to a “popular and effective school”. That is hardly surprising given that the point relating to the approach to interpretation was taken so late in the day. Unless, however, there exists a principled reason why the approach in Raissi should not be adopted in this case it seems to me that the starting point for the court is bound to be the meaning to be attributed to the phrase “popular and effective school.” Without knowing what the phrase means how can the reasonableness or rationality of the Defendant’s conclusion that Eglwys Newydd was effective but not popular be determined?

Is there a principled basis upon which the approach in Raissi should not apply? I cannot think of one. I appreciate that the Circular is applicable throughout the whole of Wales and that local circumstances will vary very substantially. I appreciate too that a decision to close a school may be justified even if the school is popular and effective and that such justification may be influenced by local circumstances. All that said, I have reached the conclusion that there is no principled reason why the approach in Raissi should not be followed in this case.

One of the difficulties facing the court is that neither party has sought to say what is meant by the phrase “popular and effective school.” That does not matter in relation to what is meant by an “effective” school; it is common ground that Eglwys Newydd is an effective school. The meaning to be attributed to the phrase “effective school” can be debated if the need ever arises. To repeat, however, neither party has offered a view about the meaning to be attributed to the phrase “popular school.” The approach of each party has rather been to argue about whether the Defendant was unreasonable or irrational in his conclusion that the school was not popular. That is still the case; even now, none of the parties put forward a definitive view of the meaning to be given to the phrase “popular school.”

It seems to me that I have no option but to consider for myself what the phrase “popular school” means applying the test formulated in Raissi. I say, at once, however, that this is no easy task. Circular 21/2009 does not attempt to define or illustrate what is meant by a popular school. The phrase appears just twice in the Circular. Paragraph 1.26 within section 1 of the Circular is entitled “Increase in provision at popular schools”. It reads as follows:-

“1.26

At a time when numbers of pupils on roll in most areas continue to fall, it should not normally be necessary to provide additional places at schools when there are others of the same type within reasonable distance. Any proposed change that would significantly increase the number of places at a particular school should only be made where the changes are demonstrably in the best interests of all local children. Where the balance of demand shifts between schools of the same type, Ls should consider initially whether admission arrangements are being applied consistently and whether it would be more appropriate to change arrangements, including catchment areas, rather than add provision.”

The phrase “popular school” appears next at paragraph 2.2 of section 2 of the Circular. The relevant extract is as follows:-

“The Welsh Ministers would not normally be prepared to approve closure of a popular and effective school unless evidence is presented that the alternative proposed would offer at least equivalent quality and diversity of education at lower total cost than would have been available had the school remained open.”

Despite the fact that the Circular does not define what is meant by a popular school or provide any illustration as a guide to its meaning the context in which the phrase “popular school” appears in the Circular and the purpose of the Circular as a whole are crucial tools is seeking to determine its meaning.

Popular is a word in very frequent use in every day speech. I have no doubt that the notional reasonable and literate man would instinctively feel that he knew exactly what it meant whenever it was used. The difficulty is that the precise meaning to be given to the word popular can alter depending upon its context. However, it is worth remembering that since the Circular in which the word appears is intended to be applicable throughout the whole of Wales, the meaning to be attached to the phrase “popular school” must be a meaning which can sensibly apply in relation to all schools within Wales.

It should also be borne in mind that the word popular is intended to be descriptive. In this Circular the word is used to describe an institution – a school. It seems to me to be clear that in the context of the Circular it is at least possible that the description popular may be justified by reference to one single factor; it may also be justified by a combination of factors.

What is the purpose of the Circular? In my judgment its purpose is to provide tightly drawn guidance to assist those responsible to plan school provision rationally and efficiently so as to maximise the resources that are available for education for the direct benefit of learners – see paragraph 1.1 of the Circular. Local authorities, of course, are responsible for education within a defined area. In relation to local authorities the Circular provides guidance which enables them to plan school provision rationally and efficiently within their area as a whole. The Circular is intended to provide a framework within which that aspiration can be achieved.

The context in which the word popular is used in the Circular is twofold. It is used first in connection with the approach to be taken if a school is operating at close to or at its capacity. The Circular discourages local authorities from creating more places at such a school given that there are likely to be schools in the vicinity which have surplus places. It is next used in the specific context of school closures. The closure of schools which are popular and effective will not normally be sanctioned unless specific criteria are met.

In my judgment given the purpose of the Circular and the context in which the phrase “popular school” appears in it, the reasonable and literate man would understand the phrase “popular school” to describe a school which is very well attended. How is a decision to be made about whether a school is very well attended? Circular 21/2009 offers guidance which is relevant.

“Surplus places

1.19

It is important that funding for education is used cost effectively. Resources targeted towards raising standards should be optimised. Some spare places are necessary to enable schools to cope with fluctuation in numbers of pupils, but excessive numbers of unused places, with consequentially excessive numbers of schools, mean that resources are tied up unproductively. Where there are excessive numbers of surplus places in an area, LAs should review their provision and, where feasible, make proposals for school reorganisation especially where individual schools have “significant” levels of surplus places, require significant investment, or have a catchment area which is unlikely to provide sufficient numbers of pupils to make it sustainable for the future. LAs should ensure that schools to be retained are of an appropriate number and are located so as to maximise potential engagement with the community. LAs should aim to retain no more than 10% surplus places overall, although levels in individual schools may be higher than this, particularly in more rural areas. In general, LAs should look to reallocate revenue savings made through the removal of surplus capacity within the education portfolio.”

The phrase “significant levels of surplus places” is explained in the guidance. It means:-

“Significant surplus is defined as 25% or more of a school’s capacity and at least 30 unfilled places: for example, a small school with a total capacity of 100 places might have 28 unfilled places but this would not be classed as significant surplus.”

How does this guidance impact upon what is meant by the word popular? I do not consider that the reasonable and literate man would describe a school as popular simply because it does not have a significant surplus of places as defined in the Circular. Put bluntly, it would be difficult to describe a school with say 20% surplus places (which were more than 30 in number) as a popular school. On the other hand no such difficulty would arise if the surplus places were 10% or less. In must be remembered that the court is striving to ascertain the meaning of a word in frequent usage but in a particular context. There is bound to be a degree of artificiality involved. However, in the light of the guidance that local authorities should strive to achieve a situation where there is no more than 10% surplus places overall in the schools within its area any particular school which has such a low percentage of surplus places can properly be described as “popular.” In my judgment and in the context of Circular 21/2009 any school in which the surplus places are 10% or less should properly be regarded as a “popular school.”

This conclusion is subject to one proviso. It does not seem to me that the reasonable and literate man would regard a school as being popular on the basis that its surplus places were 10% or less simply on the basis of one moment in time. In my judgment the reasonable and literate man would consider that a school could properly be described as popular only if its surplus places were 10% or less over a period of time - measured in years if that was possible. If a school can demonstrate that its surplus places have been 10% or less over some years it ought properly to be regarded as a “popular school.”

In relation to a school which has a “track record” of a low percentage of surplus places I do not consider that the reasonable and literate man would understand the phrase “popular school” to require additionally that a certain percentage of its pupils have homes within its catchment area. There can be a host of reasons why a well attended school does not have a majority of its pupils from its catchment area. That is particularly so in densely populated urban areas where schools can be easily accessible to homes which are just outside their catchment areas. In rural Wales, no doubt, a very high proportion of children attend the school which is the school for the catchment area of their home. To repeat, there can be many reasons why that is not so in relation to a school in a densely populated urban area.

As is apparent from the guidance from Circular 21/2009 quoted at paragraph 46 above, a school is not considered to have significant surplus places unless such places total at least 30 and are also 25% of the school’s capacity. A school cannot sensibly be regarded as popular within the Circular if it has significant surplus places. As is clear from the evidence in this case, many schools in Cardiff, including Eglwys Newydd, have a track record of surplus places which is greater than 10% but less than 25%. Can such a school be a “popular school” within the Circular?

I have found this a very difficult question to answer. There is an obvious attraction in answering the question yes. I say that because the greater degree of flexibility thereby afforded might avoid somewhat arbitrary distinctions between, for example, a school which has a track record of 10% surplus places or less and one whose track record is of surplus places just beyond 10%. On the other hand it is difficult to impute to the reasonable and literate man the additional criteria which he would use to assess popularity. Would numbers of pupils from the catchment area of the school be used? If so, what percentage of the eligible pupils would be sufficient? If, as in the instant case, the school is in a heavily populated area where pupils might conveniently attend from out of catchment what significance is to be attached to this?

After some considerable reflection I do not think it can be right that a school is properly described as popular only if it has a track record of a low percentage of surplus places. In making a decision about whether a school can properly described as popular under the Circular the Defendant is entitled to consider all the characteristics of the school which reasonably and rationally bear upon that issue. That does not mean that “popular” can mean different things to different decision makers. Rather it is an acknowledgement that a combination of circumstances and/or factors may exist in relation to a school which taken together justify the conclusion that a school is popular. For obvious reasons, however, it would be wholly inappropriate in this judgment to seek to identify or predict what those combination or circumstances and/or factors might be.

If the meaning to be attributed to the phrase “popular school” is confined to a school with a track record of surplus places which is no more than 10% of its capacity, Eglwys Newydd was not a popular school within the Circular at the time of the decision letter and is not now. However, the Defendant did not judge whether Eglwys Newydd was a popular school in this way. As I have said, the Defendant did not set out the meaning which he attributed to the phrase “popular school”. Rather, he explained why he considered that Eglwys Newydd could not be regarded as “popular”. I turn to deal with this aspect of the case.

The Defendant advanced two reasons for concluding that Eglwys Newydd was not a popular school. First, he asserted that as little as approximately 42% of children from its catchment area attended the school. Second, he asserted that the school had a significant number of surplus places. The decision letter wrongly asserted that it had 91 surplus places; what it should have specified was that as of January 2010 there were 81 surplus places – which constituted 21.37% of available places. As I read the decision letter it was the two factors taken together that convinced the Defendant that the school was not popular.

Mr Paul Williams is employed as a school organisation manager within the School Organisation and Admissions branch of the Welsh Government. He has made three witness statements in these proceedings. He made his first witness statement on 12 August 2011. At paragraph 20 of that witness statement he said that the Defendant was satisfied that “although the figure for surplus places at EN should have been 81 rather than 91 [a reference to the mistake in the decision letter] the Welsh Ministers are satisfied that on this basis alone, it was reasonable to conclude that the school was not a ‘popular’ one”. At paragraph 21 Mr Williams said that the low percentage of catchment pupils attending the school “reinforced this conclusion.”

I have considerable doubt about whether Mr Williams’ evidence as set out above is properly admissible in these proceedings for the purpose for which it was adduced, namely to explain one aspect of the decision letter. In my judgment the terms of the decision letter are clear. The Defendant relied upon the number of surplus places and the percentage of pupils from the catchment area in reaching his conclusion that the school was not popular. He did not distinguish between the two factors in terms of the weight which he attached to each. Whilst evidence is sometimes received by the Administrative Court to explain an apparent ambiguity in a decision letter or more exceptionally to correct it the court does not usually admit evidence to explain a reasoning process when the process is unambiguously described in the decision itself – see R v Westminster CityCouncil ex parte Ermakov [1996] 2 AER 302. In this case I am not prepared to read the decision letter any differently from that which is obvious from its face.

I have reached the clear conclusion that the Defendant’s reliance upon the fact that as of January 2010 there were 81 surplus places at Eglwys Newydd was irrational or unreasonable. In October 2009 the Interested Party had issued a consultation document relating to the reorganisation of primary schools in Whitchurch. Three options were put forward but each included a plan for closing Eglwys Newydd. It is common ground that the surplus places at Eglwys Newydd as of January 2010 were higher than the surplus places at the school over a number of preceding years. Eglwys Newydd has an official capacity of 379 pupils. In 2008 the number of pupils on roll was 318; in 2009 the number on roll was 326; as of January 2010 the number was 298. By April 2011 the number on roll had increased to 314. I accept the submission of Mr. Bowen QC that the likely explanation for the dip in numbers in 2010 was the fact that a proposal had been published shortly before which threatened the existence of the school. In my judgment, it was irrational or unreasonable of the Defendant to rely upon numbers on roll at a specific moment in time when he knew or should have known that the numbers on roll were very unlikely to be properly representative of the number of pupils who usually attended the school.

In this context it is also instructive to consider the Statement of Case which the Interested Party presented to the Defendant in support of its proposals. The Statement of Case is contained within the “Statement of Information” which was considered by the Defendant in advance of his decision upon the proposals. I quote:-

“Analyses of capacities and pupil rolls as at January 2008 show that although the combined level of English-medium primary schools surplus places at Eglwys Wen and Eglwys Newydd primary schools is fairly low at 13.4%, the proportion of pupils in these schools from outside their catchment areas was very high at 41.1%.

The effect of these 247 pupils not attending their catchment area school contributes to a possible threat to the viability of schools in other communities.”

In my judgment, that paragraph, alone, should have alerted the Defendant to the fact that the numbers on roll at Eglwys Newydd as at January 2010 were probably unrepresentative.

To repeat, in my judgment, the Defendant was unreasonable or irrational to rely upon pupil numbers at Eglwys Newydd as at January 2010 as a reason for concluding that the school was not popular.

The Claimant does not suggest (nor could she sensibly suggest) that the Defendant was not entitled to take account of the numbers of pupils attending the school as a measure of the school’s popularity. Her short point is that the numbers attending the school over a number of years should have been the appropriate measure. I agree.

I turn to the second reason relied upon by the Defendant for his conclusion that the school was not popular, i.e. the fact that of those pupils who might attend the school from its catchment area it was only about 42% that did so.

It is submitted on behalf of the Claimant that the Defendant’s reliance upon the figure of 42%, or thereabouts, was irrational or unreasonable. In order to understand the submission it is necessary, first, to set out the basis upon which the figure of 42% is derived.

The figure of 42% relates to those attending Eglwys Newydd as of January 2009. The percentage was derived by comparing the total number of eligible pupils within the catchment area with those actually attending the school (although it may be that those pupils from the catchment area who attended private schools were left out of account).

Mr Bowen QC submits that such an approach is irrational. He submits that pupils from within the catchment area but who were being educated at faith schools or Welsh medium schools should have been left out of account when assessing the true percentage of pupils from within the catchment area who attend Eglwys Newydd. He submits that the reality is that the children who were attending faith schools or Welsh medium schools were most unlikely to attend Eglwys Newydd whatever its status as a school and however good its educational provision. Their inclusion in the pool of eligible children inevitably and irrationally impacted upon the decision that the school was not popular.

In assessing this aspect of the challenge it is as well to remind myself (and the reader of this judgment) that it is a challenge to the rationality or reasonableness of assessing in a particular way the percentage of pupils within the catchment area who attend Eglwys Newydd. It must be emphasised that it is perfectly possible that there is more than one reasonable or rational approach to the assessment of the percentage of pupils from a catchment area who attend a particular school which is intended to serve that catchment area when the object of the assessment is to use the result as a measure of a school’s popularity.

I have reached the conclusion that the Defendant’s approach to assessing the percentage was not irrational or unreasonable. Mr Bowen’s approach assumes that all those parents who sent their children to faith schools or Welsh medium schools were irrevocably bound to that choice. In my judgment that is not a safe assumption. Parents have all sorts of reasons why they choose a particular school. No doubt some will be committed to Welsh medium education just as some will be committed to a faith based school. Some parents, however, will choose Welsh medium education over English medium education simply on the basis of their perception as to the educational provision of the respective schools; the same may be true for some parents who choose faith based schools. In my judgment it is not irrational to seek to assess the popularity of a school by determining the percentage of children who attend that school deduced from the total eligible pool of children.

As I have said the Defendant assessed the percentage of children from within the catchment area who attended Eglwys Newydd as at January 2009. I have some reservations about whether it was reasonable or rational to base a conclusion upon one set of figures notwithstanding the fact that the figures used were the most recent available figures at the time of the decision and ones which were derived from data available before the Interested Party published its proposals. However, there is no suggestion in this case that the figure of 42% was markedly unrepresentative.

In summary, I have reached the conclusion that the Defendant’s reliance upon the number of surplus places at Eglwys Newydd as of January 2010 was not a rational basis for his conclusion that the school was not popular. However, it was not irrational for the Defendant to assess popularity by reference to the percentage of eligible children who attended Eglwys Newydd from its catchment area and it was not irrational of the Defendant to calculate the percentage in the way that he did in the particular circumstances of this case.

Although I have concluded that the Defendant's reliance upon the number of surplus places at Eglwys Newydd as at January 2010 was not a rational basis for his conclusion that the school was not popular it does not follow that the Defendant’s decision to approve the proposals published by the Interested Party should be quashed. I accept the submission of Mr Lewis QC that consideration of whether a quashing order should be granted arises only if the Claimant makes good her challenge under grounds 2 or 3. Mr. Lewis QC submits that the Defendant received evidence which showed that the Interested Party’s proposals would offer at least equivalent quality and diversity of education to that provided at Eglwys Newydd; he further submits that there was evidence before the Defendant which demonstrated that the educational provision at the schools which would come into existence following the implementation of the Interested Party’s proposals would be provided at a lower total cost than would be the case should the status quo be maintained. On the basis of such evidence, submits Mr. Lewis QC the Defendant was entitled to conclude that the proposals would provide equivalence of educational provision at a lower total cost than if the status quo was maintained. If that is correct, submits Mr. Lewis QC, it matters not that the Defendant's reasoning process in relation to whether Eglwys Newydd was popular was flawed. I will deal with these issues shortly.

However, it seems to me that there is a further reason why it may not be appropriate to grant a quashing order on the basis of the Defendant's flawed approach to the issue of popularity. As I have found, a school can be described as popular within Circular 21/2009 if it has a track record of surplus places of no more than 10%. On any view of this case, Eglwys Newydd did not and does not meet that criterion.

As I have indicated, the Defendant was entitled to consider whether such a combination of circumstances and factors existed in this case from which it would be proper for him to conclude that Eglwys Newydd was a popular school even though it did not have a track record of surplus places of 10% or less. In effect, that is what the Defendant did albeit that his approach was flawed in one respect as I have said. As this case has unfolded, however, it has become increasingly clear to me that even if the Defendant were to reconsider the issue of popularity his conclusion would very likely be that Eglwys Newydd is not a popular school within the Circular. Even if the percentage of eligible children attending Eglwys Newydd from its catchment area was as the Claimant says it should be – 61% - given the surplus places which have existed at Eglwys Newydd over some years there can be little doubt but that the Defendant would still not conclude that the school was popular. In 2008 the surplus places were 61; in 2009 the surplus places were 53; in 2010 they were 81 and by April 2011 they were 65. Indeed, the evidence suggests that as from September 2005 the surplus places at Eglwys Newydd have always been in excess of 10% (save for four months in 2006) and for most of the time substantially in excess of 10%. To repeat, I am currently of the view that there is very little likelihood that the Defendant would conclude that Eglwys Newydd was a popular school should he be forced to reconsider that issue. That said I have not closed my mind to the possibility that it is appropriate to quash the Defendant’s decision. I will return to this issue at the end of this judgment.

Accordingly, it is obviously desirable that I express my view upon whether or not the Defendant was properly entitled to conclude that the Interested Party’s proposals offered at least equivalent quality and diversity of education at a lower total cost than would be available if the status quo was maintained. It is to these issues that grounds 2 and 3 are addressed.

The Claimant first submits that the Defendant simply did not consider whether the proposals offered at least equivalent quality and diversity of education at a lower total cost than would be available if the status quo was maintained. If, contrary to that primary position, the Defendant did address those issues in his decision letter Mr Bowen QC next submits that the Defendant failed in his duty to investigate and analyse the evidence about those issues which was placed before him. Third, says Mr Bowen QC, the Defendant’s decision that the Interested Party’s proposals did provide equivalent quality and diversity of education at a lower total cost than would be the case should the status quo be maintained was irrational and/or unreasonable.

At page 12 of the decision letter (Trial Bundle 1 page 84) the Defendant wrote:

“In conclusion, the Minister approves the proposal relating to Eglwys Wen and Eglwys Newydd Primary Schools on the basis that it will:

i)

provide at least equivalent quality and diversity of education as that which would be available if schools were to remain open;

ii)

enable a good standard of education currently available to schools to be replicated at the new school;

iii)

ensure the premises and facilities at the new school are at least as good as those presently available at the separate schools, thus helping to underpin the provision of good educational standards;

iv)

allow the Local Authority to deliver more cost effectively English-medium education in the area served by Eglwys Wen and Eglwys Newydd Primary Schools;

v)

reduce surplus places in the area served by these two schools while leaving a margin for growth;

vi)

potentially reduce their capacity in English-medium schools in a wider area;

vii)

lead to investment in the school buildings and the creation of fit-for-purpose schools;

and furthermore, approves the proposal relating to Ysgol Gymraeg Melin Gruffydd on the basis that it will:

viii)

allow Ysgol Melin Gruffydd to transfer to larger and more suitable accommodation, thereby helping to meet increased demand for Welsh medium provision within its catchment area;

ix)

enable it to maintain and possibly improve the standard of education it provides.

The first issue raised by the Claimant is whether the Defendant considered at all whether the Interested Party’s proposals offered at least equivalent quality and diversity of education to that which was provided at Eglwys Newydd. I have no doubt that he did. The Defendant concluded, in terms, that the new school would provide at least equivalent quality and diversity of education, that it would replicate the good standard of education available at Eglwys Wen and Eglwys Newydd and it would provide a building and facilities of equivalent standard to that enjoyed by Eglwys Wen and Eglwys Newydd.

Under the heading “Standards of Provision” the decision letter addressed the following:

In my judgment this paragraph demonstrates not just that the Defendant addressed the issue of whether educational provision would be at least as good in the new school as it was at the existing schools; it demonstrates also that the Defendant’s decision on this issue was reasonable and/or rational and/or took account of the information which was available to the Defendant at the time he made his decision.

As is clear from the paragraph quoted above, the Defendant attached considerable weight to the views expressed to him by Estyn. The Defendant was entitled to do so. For all practical purposes, Estyn was a specialist adviser; it was asked by the Defendant to provide specialist advice upon proposals which were controversial. Estyn expressed its views clearly and without equivocation. The advice given by Estyn to the Defendant was fully understood and acted upon as the paragraph quoted above demonstrates.

In these proceedings, the Claimant has raised the issue of whether or not Estyn was impartial and/or whether the Defendant influenced Estyn to advise as it did. I do not propose to set out what I regard as the flimsy basis upon which this assertion is made since I am completely satisfied that Estyn remained impartial throughout; the reality is there is no substantial credible evidence which suggests otherwise.

I acknowledge that the issue of educational standards at Eglwys Newydd was raised by many of the objectors to the Interested Party’s proposals. Many of the objectors voiced concern that the educational standards at Eglwys Newydd would not be replicated at the proposed new school. A summary of the views of these objectors was set out in the Statement of Information prepared by the Defendant's officials for his consideration. The summary was in these terms:-

“Eglwys Newydd primary school is a special place with happy pupils, staff, parents and governors. Pupils behave in an exemplary manner. Its current buildings are adequate and its facilities (such as the outdoor playing equipment, the conservation area, the computer suite, the canteen and the bicycle shed) are excellent. It offers a wide range of extra curricular sporting and musical activities. It provides excellent care for disabled pupils. Would this continue? Eglwys Newydd primary school is a cost effective school and it provides high quality education. There is no reason to believe that this would change. Why disrupt this?

There is no guarantee that the excellent standards of the two English-medium schools will be replicated by the new school, but particularly during the transition stage. School reorganisation should only be carried out on educational grounds. The Council has failed to identify any educational benefits for English-medium pupils. The link between good quality buildings and good quality education is not an automatic one – a promise to invest in buildings does not necessarily relate to improvements. The quality of education should be the overriding factor not pupil numbers. Estyn has described the LEA’s progress on school reorganisation as ‘a significant weakness within the Counsel.’ It seems that the dominant imperative for the current exercise is to be seen to do something in response to that criticism.”

In the Statement of Information there follows a summary of the Interested Party’s rebuttal. It contains the following passages:-

“There is no substantive evidence provided by any of the objectors that the proposed new English-medium School would not be able to replicate the current standards. It would not be appropriate for the local authority to avoid reorganisation due to a fear of what the future may or may not hold.

The local authority believes the proposed new primary school should bring together the key strengths of both existing schools to create a high performing school that not only maintains but also supports the further raising of pupil outcomes and the overall quality of education. The proposed action will provide a significant opportunity to build on, sustain and further develop existing standards. It will allow the newly appointed governing body and school leadership team to explore even further how to get the best out of working together including new and innovative ways of delivering the curriculum using the wider pool of resources available. This will provide a new dimension and capacity in which to further promote an attractive, dynamic and exciting place to learn and work. In addition, it will promote the effective use of the existing resources, skills and expertise to the benefit of all the children including the more able and talented over a sustained period of time.”

As is clear, therefore, the Defendant had the issue of educational standards squarely before him when he made his decision. To repeat, he took advice from and acted upon the advice of Estyn which, as I have said, was impartial. He received a robust rebuttal from the Interested Party in relation to objectors who had queried the educational standards which would be provided at the new school. In these circumstances I simply do not accept that it is open to me to conclude that the Defendant did not compare the educational standards to be provided at the new school with those at the existing schools or, further, to conclude that the Defendant’s decision to the effect that the educational provision at the new school was at least equivalent to the provision at the existing schools was unreasonable or irrational.

In a number of aspects of her case, the Claimant relies upon the decision of the House of Lords in Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] A.C 1014. It is as well to deal with this case at this juncture.

The facts were these. In 1975 the Respondent published proposals to bring all the schools in their area under the comprehensive principle. The scheme was approved by the Secretary of State for Education and Science in November 1975 and implementation of the scheme was envisaged by the beginning of the school year in September 1976. In May 1976 local Government elections were held, and the survival of grammar schools was a strongly fought issue on which the opposition political party took a stand. As a consequence of the election the opposition party gained control of the Respondent and considered that they had a mandate to reconsider their predecessor’s education policy. The new authority proposed to continue and complete three new comprehensive schools which were in the course of construction, to continue 16 secondary modern schools and to postpone plans for conversion of 3 grammar schools into comprehensive schools or Sixth Form colleges. When these plans were communicated to the Appellant he directed the Respondent to give effect to the proposals approved by him in November 1975. In so directing the Appellant sought to exercise its powers under section 68 of the Education Act 1944.

Shortly after the direction had been issued the Appellant applied for an order to compel the authority to comply with his direction. The Divisional Court upheld the Appellant's claim. On appeal to the Court of Appeal the Respondent’s appeal was allowed and in their Lordship’s House the Appellant's appeal was dismissed. In his speech Lord Wilberforce expressed himself as follows as to the appropriate guiding principles:-

“(1)

The critical question in this case, and it is not an easy one, is whether, on a matter which appears to be one of educational administration, namely the change of course proposed by the Council in May 1976 would lead to educational chaos or undue disruption, the Secretary of State’s judgment can be challenged.

(2)

The section is framed in a “subjective” form – if the Secretary of State “is satisfied”. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made on a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bone fide it may be, becomes capable of challenge: see Secretary of State for Employment v ASLEF (No.2)[1972] 2QB 455, per Lord Denning M.R at p.493.

(3)

The section has to be considered within the structure of the Act. In many statutes a Minister or other authority is given the discretionary power and in these cases the courts’ power to review any exercise of the discretion, although still real, it is limited. In these cases it is said that the courts cannot substitute their opinion for that of the Minister: they can interfere on such grounds that the minister has acted right outside his powers or outside the purpose of the Act, or unfairly, or upon an incorrect basis of fact. But there is no universal rule as to the principles on which the exercise of a discretion might be reviewed: each statute or type of statute must be individually looked at.

….

The ultimate question in this case in my opinion, is whether the Secretary of State has given sufficient, or any, weight to this particular factor in the exercise of his judgment.”

Mr Bowen QC relies, in particular, on the sentence:-

“If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon some other facts which ought not to have been taken into account.”

Mr Bowen QC submits that the Defendant failed to ascertain a proper factual basis upon which he could assess whether the Interested Party’s proposals would provide an equivalence of educational provision to that which was being provided at Eglwys Newydd. I do not accept that submission. As I have said the Defendant had before him an articulated objection based upon educational provision. He had the Interested Party’s answer to that objection. That was evidence upon which he was entitled to act. He took independent advice from Estyn upon this issue and he accepted the advice which was afforded to him. In my judgment, the law did not demand that the Defendant should make further inquiry than he did and, to repeat, on the basis of that which was before him the decision made by the Defendant was reasonable and/or rational.

I reject ground 2 of this challenge.

It is submitted on behalf of the Claimant that even if the Defendant’s conclusion that the new English medium school was equivalent educationally to Eglwys Newydd nonetheless, the Defendant failed to consider whether it was deliverable at a lower total cost compared with maintaining the status quo; if he did consider that point he failed to realise that there was no evidence before him to justify the assertion that the proposals would deliver educational provision at total lower cost and in any event his conclusion on this issue was unreasonable or irrational.

In the Statement of Information it is recorded that the Interested Party proposed to invest approximately £2.2 million at the site of the proposed new English medium school. This “would result in appropriate refurbishment and adaptation/extension to the existing permanent building, without the need for any additional demountable classrooms during the transition period.” The Interested Party also made it clear that it proposed an investment programme of approximately £4.9m at the site of the Welsh medium school. It is also to be noted that the Interested Party alleged that following implementation of its proposals there would be “revenue savings” of £155,500 per annum as compared with the status quo. Many objectors queried these figures; in particular they queried the alleged savings in annual expenditure. Despite these objections, however, the Interested Party maintained its position that the proposals once implemented would result in annual expenditure savings of £155,500.

It is clear, too, that objectors were concerned that the proposed investment of £2.2.m at the site of the new English medium school would not be adequate to remedy the building deficiencies at the site. This objection was rebutted with vigour by the Interested Party.

In his decision letter, the Defendant dealt, explicitly, with the issue of whether an investment of £2.2m was sufficient to remedy deficiencies within the building at the site of the proposed English medium school. On this issue the Defendant wrote:-

“The Minister notes that some objectors have suggested that the permanent accommodation at the Eglwys Wen/Melin Gruffydd site is in a poor condition and worse than that at the Eglwys Newydd site. They question whether the proposed investment of £2.164m is sufficient to remedy the deficiencies given that nearly £5m is to be spent at the Eglwys Newydd site. They argue that this will eventually lead to a reduction in the standard of education provided by pupils transferring to the new school from Eglwys Newydd primary school. However, the local authority has provided the Minister with evidence from condition surveys that the permanent accommodation at Eglwys Wen/Melin Gruffydd is in relatively good condition. Furthermore, the local authority has assured the Minister that the fabric of the building is essentially sound and the planned investment is sufficient to ensure that they are capable of facilitating the highest possible standards of education. The chair of governors at Eglwys Newydd has suggested that either the Minister or officials need to visit the sites in order to properly assess these matters. However the Minister is unable to see what could be gained from any such visit by a lay person which would gainsay the professional opinion expressed in the local authority’s condition surveys.”

The other references to financial issues contained within the decision letter are as follows:-

“Finance

the financial implications for both recurrent and capital costs and a scale of any projected net savings over a period of at least 3 years.

The Minister is aware that the local authority anticipates that the implementation of the proposals and the reduction in the number of schools in the Whitchurch area from three to two will generate annual revenue savings of £150,500. He is also aware that the total cost of implementing these proposals is expected by the local authority to be approximately £8.134m.

whether the proposals represent a more efficient use of resources, taking into account the long term transport and building maintenance and repair costs.

The Minister is satisfied the reduction by one in the number of English-medium primary schools, the consequent reduction in surplus capacity, and the release of revenue savings to support capital investment represents a more efficient use of resources.

In addition, he believes that the investment to be made at the two school sites should help to reduce the long term building and maintenance costs. The Minister notes that there are no transport costs associated with the proposals.

the existence of written confirmation from the body or bodies concerned that any capital funding needed for the proposals to be implemented will be available at the level required and at the right time.

The Minister notes that the local authority has confirmed in writing that the necessary funding would be available for the proposals as and when it is required.

whether the necessary recurrent funding is available, including consideration whether, without the proposals, the schools would face budget deficits.

As the recurrent funding required to operate the two schools will be less than is currently used to run the three schools, the Minister sees no reason to believe that the necessary recurrent funding would not be available.

The Minister notes that all three schools recorded budget surpluses at the end of 2009-10. As the number of roll at Melin Gruffydd is projected to rise, and numbers at Eglwys Wen and Eglwys Newydd are projected to remain stable, the Minister has no reason to believe the schools would face budget deficits if the proposals did not proceed.

whether any savings in recurrent costs would be retained in the local authority’s local schools’ budget;

The Minister notes that the expected revenue savings will be used to support prudential borrowing of £1.55m for the capital investment programme to be carried out at the two school sites.

in the case of closures, what capital investment would be needed if the school were to stay open, in order to bring it up to a proper standard for delivery of the curriculum.

If Eglwys Newydd and Eglwys Wen were to remain open, and Melin Gruffydd were to remain at its current site, theMinister has noted there will still be considerable capital investment required in order to bring those sites up to the standard which the local authority believes is appropriate, possibly at a similar level to that which is intended to be spent if the proposals are implemented.”

The Defendant ultimately concluded that the Interested Party’s proposals would “allow the local authority to deliver more cost effectively English -medium primary education in the area served by Eglwys Wen and Eglwys Newydd primary schools.” (see paragraph 72 above)

Mr Lewis QC and Mr Roddick QC submit that this conclusion demonstrates that the Defendant did consider whether the proposals for the new English medium school would offer education at lower total cost than would be available if Eglwys Newydd and Eglwys Wen remained open.

I accept that the Defendant was entitled to consider the cost implications of the Interested Party’s proposals as a whole. What I mean by that is that he was entitled to make a comparison between the cost of retaining Eglwys Wen, Eglwys Newydd and Ysgol Melin Gruffydd as three separate schools and the cost of providing one English medium school and one Welsh medium school. In my judgment it would have been entirely artificial to seek to make a cost comparison between retaining Eglwys Newydd and implementing a proposal for one English medium school to replace both Eglwys Wen and Eglwys Newydd. I am inclined to the view that the Defendant did consider whether the total cost of implementing the Interested Party’s proposals was less than maintaining the status quo.

Even if that is right, however, Mr Bowen QC submits that there was simply no evidence placed before the Defendant which justified his conclusion that the implementation of the proposals would allow the Interested Party to deliver English medium primary education more cost effectively. All that the Defendant had before him was the proposed capital expenditure at the sites of the proposed schools and an assertion, unsupported by evidence, that there would be revenue savings of the order of £155,500 per annum consequent upon the implementation of the proposals. Mr Bowen QC submits that he is wholly justified in submitting that this was an assertion unsubstantiated by evidence not least because, during the course of these proceedings, the Interested Party revised the predicted revenue savings to £75,000 per annum.

In my judgment there is considerable force in the submissions made by Mr Bowen QC. The plain fact is that Circular 21/2009 requires that evidence be placed before the Defendant to demonstrate that the alternative proposed would offer education at lower total cost than would be incurred should the status quo be maintained. Despite the valiant efforts of Mr Lewis QC and Mr Roddick QC they were unable to point to “evidence” which was placed before the Defendant and which would justify a conclusion that the proposals would provide education at lower total cost than the status quo.

It is true that the Defendant sought information about the quality and condition of the buildings and facilities at the three existing schools prior to making his decision. The Interested Party responded by reference to condition surveys which had been undertaken at the schools in January 2010. The purpose of the surveys was to consider the suitability of the premises for the Interested Party’s proposals. However, the surveys indicated that there was a backlog of necessary repairs at each of the school sites. The likely cost of such repairs was of the order of £1 million.

In my judgment, Circular 21/2009 requires a reasonably detailed analysis of the capital costs of implementing the proposals compared with maintaining the status quo and the likely increase or decrease, as the case may be, of revenue expenditure thereafter. In my judgment no such analysis was ever undertaken prior to the Defendant's decision in this case. It was not undertaken by the Interested Party and the Defendant made insufficient inquiry of the Interested Party about the financial implications of the proposals prior to making his decision. In my judgment, he failed to discharge the duty which was imposed upon him by Tameside. There was a need for the Defendant to satisfy himself upon certain basic factual matters. They were (1) the capital cost of the proposals compared with any capital costs predicted to be incurred by the retention of three schools and (2) the predicted savings in annual expenditure resulting from running and maintaining two schools as opposed to three. Even now, in my judgment, the Defendant and Interested Party have failed to establish that the proposals, if implemented, would satisfy the terms of Circular 21/2009.

As I have said, Mr Bowen QC puts this part of the case on the alternative basis that the Defendant’s conclusion on the cost issue was irrational or unreasonable. Theoretically that is more difficult to establish. However, no useful purpose would be served by analysing the reasonableness or rationality of a decision when it is clear, in my judgment, that the crucial facts relevant to the decision were never properly established.

As part of the justification for its proposals the Interested Party relied upon assessments which it made as to the current and likely future demand for English and Welsh medium education in the area served by Eglwys Wen, Eglwys Newydd and Ysgol Melin Gruffydd. The Claimant asserts that the Interested Party’s assessments were wrong. Mr Bowen QC submits that the Interested Party’s assessments were accepted by the Defendant and, accordingly, he perpetuated the error. That led to an error of law on his part. In his skeleton argument, Mr Bowen QC characterised the error of law upon which he relies as a failure to make such inquiries as were reasonable in the circumstances so as to ensure that it was proper to rely upon the Interested Party’s assessments i.e. the Claimant relies upon the Tameside duty and alleges a breach of that duty. I also record that Mr Bowen QC made reference in his skeleton to the decision R v Newham London Borough Council ex parte Begum [1996] 28 HLR 646 at page 656, although there is no need to set out the passage upon which Mr Bowen relies.

In the decision letter the Defendant expressed the view that he was satisfied that the proposals would “deliver English and Welsh-medium primary provision in the Whitchurch area of Cardiff which better [matched] the existing and projected levels of demand.” He also expressed the view that although objectors had questioned pupil projections provided by the Interested Party he saw no reason “to believe that the local authority’s projections [were] inaccurate, or its methodology for those projections flawed.”

The Defendant also considered, in terms, the following issues:-

In the concluding section of the decision letter the Defendant expressed the view that the creation of one English medium school in place of Eglwys Wen and Eglwys Newydd would reduce surplus places in the area while still leaving a margin for growth and also, potentially, reduce spare capacity in English medium schools in a wider area. He also expressed the view that the proposals for Ysgol Melin Gruffydd would allow that school to transfer to larger and more suitable accommodation thereby helping to meet increased demand for Welsh medium provision within its catchment area.

It is clear that the Defendant accepted the Interested Party’s assessment of the current and projected demand for English and Welsh medium education in the Whitchurch area. In large part that was because the Defendant accepted as reliable the Interested Party’s predictions of the likely numbers of pupils who would attend Eglwys Newydd, Eglwys Wen and Ysgol Melin Gruffydd should they continue to exist. These predictions were set out in the Statement of Information in tabular form and it is reproduced immediately below.

It is acknowledged by the Interested Party and the Defendant that the table contains an error. The number on roll for Eglwys Wen as at January 2010 was 288; the number on roll at Eglwys Newydd was 298. Although this error is to be regretted nothing turns upon it. In particular it is accepted that the error does not invalidate the predictions which were made for 2011 and following.

The significance of the table is the fact that over the period between January 2011 and January 2015 the Interested Party predicted, in effect, a small increase in numbers followed by a decrease in numbers at Eglwys Wen (with the figure for January 2015 being very similar to the actual figure at January 2010); a gradual fall in the numbers for Eglwys Newydd and a substantial increase in numbers for Ysgol Melin Gruffydd. The prediction of demand for places at Ysgol Melin Gruffydd was, no doubt, one of the main reasons why the Interested Party asserted and the Defendant accepted that the demand for Welsh medium education in the Whitchurch area was on the increase.

Under the Interested Party’s proposals the new English medium school would have a capacity of approximately 540 pupils with an admission number per annum of 75.

At first blush such a capacity is difficult to reconcile with the projections for the numbers of pupils on roll at Eglwys Wen and Eglwys Newydd should they continue to exist. The combined totals from January 2012 significantly exceed 540.

The Interested Party, however, does not consider that all the pupils who are predicted to attend Eglwys Wen and Eglwys Newydd should they continue to exist would transfer to the new school en bloc upon its opening and upon their closure. The aim of the Interested Party is that most of the children who attend the new school would live in its catchment area. As I have already noted a very substantial number of children attend Eglwys Newydd from outside its catchment area and the same is true for Eglwys Wen. The aim of the local authority, to repeat, is that the new school will satisfy the demand from pupils within its catchment area. That said, it acknowledges that if most of the pupils within the catchment area who are predicted to attend the school take up their places there will be comparatively few surplus places for persons who may wish to attend the new school but from outside its catchment area.

The Interested Party makes no secret of this aim. In the Statement of Case which it presented to the Defendant in relation to its published proposals it acknowledged that one of the principles underpinning both its educational policy and the proposals for primary schools in Whitchurch was properly encapsulated in the phrase “local schools for local children”. This phrase is to be found in a document published by the Interested Party in November 2006 entitled “21^st Century Schools: A Strategic Framework for a School Buildings Improvement Programme.” This document has been the foundation of the Interested Party’s educational policy since that time and, to repeat, one of the core principles contained within the document is “local schools for local children”. The expressed rationale for the Interested Party’s proposals for Whitchurch is entirely consistent with this theme. I quote from the Statement of Case:-

“The southern area of Whitchurch is currently served by two English-medium primary schools (Eglwys Newydd and Eglwys Wen) and one Welsh-medium primary school (Ysgol Melin Gruffydd). Projections indicate that there will continue to be growth in the demand for Welsh-medium primary provision in this area and temporary arrangements have to be put in place in order to meet additional demand at Ysgol Melin Gruffydd for September 2009.

Analysis of capacities and pupil rolls as at January 2008 show that although the combined level of English-medium primary school surplus places at Eglwys Wen and Eglwys Newydd primary schools is fairly low at 13.4% the proportion of pupils in these schools from outside their catchment areas was very high at 41.1%. The effect of these 247 pupils not attending their catchment area school contributes to a possible threat to the viability of schools in other communities.

English-medium primary projections indicate that a 2.5 FE capacity school is sufficient to meet catchment area demand for English-medium primary provision in the combined catchment areas of Eglwys Wen and Eglwys Newydd primary schools, and provide for an appropriate level of spare capacity. It will also allow for expansion if that becomes necessary.

The local authority has therefore brought forward proposals to achieve a better match between the supply and local catchment area demand for English-medium and Welsh-medium schools in Whitchurch.”

Many of the objections to these proposals received by the Interested Party at consultation stage related to the issue of predicted demand for English medium education and the relationship between predicted demand, surplus places and catchment areas. The substance of each of those objections was set out in the Statement of Information. Each objection was met with a vigorous rebuttal from the Interested Party. In summary the stance taken was that the capacity of the new English medium school was greater than the predicted demand for English medium education from pupils within the catchment area of the new school. The Interested Party also maintained that the methodology for its predictions was robust and recognised as being so by, amongst others, Estyn.

As I have said the Defendant accepted the Interested Party's assessment of the likely demand for places at the new English medium school. Like the Interested Party, however, the Defendant focused upon whether the capacity of the new school would have sufficient places to accommodate pupils likely to attend it from its intended catchment area – see Trial Bundle 1 page 78.

A great deal of time was taken up during the course of the hearing in criticisms of the Interested Party's projections of the numbers of pupils who were likely to attend Eglwys Wen and Eglwys Newydd should they remain open and the effect. In his comprehensive written reply Mr Bowen QC devotes a great deal of space to the same and similar criticisms. It is clear that the Claimant, members of SENAG and the Claimant’s legal team attach a great deal of weight to the submission that the Interested Party and, in turn, the Defendant wrongly underestimated the demand for English medium education in the Whitchurch area.

I am asked to conclude that the predictions which appear in the table above at paragraph 103 are wrong. A number of reasons are advanced to support that position. The detail of the criticisms is to be found in the witness statements of Mr. Phillips and some of the exhibits thereto.

It is unnecessary to set out in this judgment the substance of each criticism made and the response to the criticism provided by the Defendant and the Interested Party. I say that for this reason. My task is to consider whether the Defendant was in breach of its Tameside duty. In essence that involves considering the material placed before the Defendant (the Statement of Information and any other information sought by the Defendant) to see whether the Defendant was put on notice that he should make further inquiry. I have read the relevant pages of the Statement of Information with care (Trial Bundle 1 pages 47 to 52) and I am not persuaded that the information contained therein was such that the Defendant was obliged to make further inquiries.

I should mention one specific criticism which the Claimant levelled against the Defendant. There appears to be no doubt that during the course of the consultation exercise which took place in 2009 the Interested Party relied upon different figures when predicting the numbers at Eglwys Newydd should the school remain open from those which it put forward to the Defendant as part of its case in support of the proposals. At the consultation stage predictions put forward for Eglwys Newydd suggested that a greater number of pupils would attend it than is shown in the table at paragraph 103 above. The prediction for 2010 was 320 pupils on roll; the predictions for the successive years to 2014 were 320, 327, 332 and 343 pupils. On any view, submits Mr Bowen QC, these are marked differences and the differences were not explained by the Interested Party in its Statement of Case or in its responses to the objectors.

It is true that the Interested Party did not explain why it had placed reliance on one set of figures at consultation and another set of figures in support of the case presented to the Defendant. However, as I have said the Interested Party was forced to respond to objections relating to the accuracy of its forecasts relating to many issues including rising birth rates, pupil projections and surplus place forecasts. The author of the Statement of Information summarised the response of the Interested Party on these issues in the following way:-

“The local authority is fully aware that individual school level projections (which by their very definition indicate estimated numbers) cannot be relied upon in isolation to ascertain future numbers for all schools in all cases. It is for this reason a range of tools and data are used with the local knowledge and expertise of highly experienced officers when planning school provision in Cardiff. This acknowledgment of inherent limitations in any single pupil projection model therefore serves to strengthen the local authority’s processes rather than weaken them.

Pupil projections take account of known developments within the Whitchurch area. The Council has a formula for establishing the number of pupils that any potential development is likely to yield. Any proposed residential developments within Cardiff are subject to consideration under the Educational Supplementary Planning Guidance; whereby developers are liable to make a financial contribution to any additional school places that may be required as a result of developments. Therefore should there be any further developments not currently known about, that would increase the child catchment population in this area the Council would seek a financial contribution in order to expand the school as appropriate.

School organisation proposals are planned on catchment projections and not the trend-based figures. The trend-based figures presented at consultation meetings were valid at the time they were calculated and the methodology used to produce the figures has been scrutinised by the audit office, Estyn and Cardiff Council’s scrutiny committee and agreed to be appropriate for this purpose. This proposal allows additional flexibility in terms of future proofing that reflects the very latest data on birth rates and positive cohort survival ratios pertaining to the Whitchurch area.

The local authority’s pupil projection methodology has been previously scrutinised and found to be robust by an all party scrutiny committee. The Wales Audit Office and Estyn have also made reference to the robustness of this methodology. The Welsh Minister’s decision letter of 26 May 2010 regarding proposals for the Canton area stated that “the First Minister has seen no evidence to suggest that the local authority’s methodology for projecting future pupil numbers is inappropriate or that its projections are likely to be inaccurate.” ”

In the light of these responses I do not consider that the Defendant failed in his duty to make further enquiries about the methodology or accuracy of the Interested Party's pupil projections. To hold otherwise would, in my judgment, be tantamount to concluding that in virtually every case the Defendant was obliged to undertake his own assessment of pupil projections so as to check the reliability of those presented to him by a local authority.

I acknowledge that the Claimant has gone to very significant lengths to seek to undermine the assertion that the new English medium school will have sufficient capacity for predicted demand. In my judgment, however, the issue before me is whether or not the Defendant acted lawfully when he decided to accept the Interested Party’s predictions without further investigation or inquiry given the specific context in which the predictions were being made. That context was whether the proposed English medium school would have sufficient capacity for the pupils likely to attend it from its catchment area.

As I have said I have reached the conclusion that the Defendant was entitled to accept the predictions of the Interested Party without further investigation or inquiry on his part.

I should also point out that even if the most optimistic view is taken (from the Claimant's point of view) of the likely demand for places for Eglwys Wen and Eglwys Newydd (assuming they continue to exist) between 2011 and 2015 the numbers of pupils from within their catchment areas which are predicted to attend the new school will still be less than the capacity of the new school. Since the proposed catchment area of the new school is the combined catchment areas of Eglwys Wen and Eglwys Newydd it follows that the Interested Party and the Defendant were entitled to conclude that the capacity of the new school was likely to meet the demand from its catchment area.

To repeat, in my judgment the Claimant has failed to show that the Defendant made insufficient inquiry about the likely level of demand for the new English medium school. If that is right in relation to the English medium school it is certainly correct in relation to the expanded Welsh medium school. The reality is that Ysgol Melin Gruffydd already operates significantly beyond its capacity and it would be extremely difficult if not impossible to escape the conclusion that the demand for Welsh medium education in the Whitchurch area is growing.

As it seems to me, the real nub of the Claimant's complaint is much more fundamental than the issue over pupil projections. In effect the Claimant attacks the Interested Party's stated policy of aiming to provide “local schools for local children.” Mr Bowen QC submits that this policy is unlawful since it conflicts with the relevant statutory provisions relating to parental choice.

In these proceedings there is no claim against the Interested Party. Nonetheless, it seems to me that the Claimant is entitled to explore the legality of the Interested Party's policy of “local schools for local children”. I say that since if the policy is unlawful it is at least open to respectable argument that the Defendant acted unlawfully by approving a proposal which was so clearly and inextricably connected to the unlawful policy.

The relevant statutory provisions are set out in paragraphs 10 and 11 above. Section 9 of the Education Act 1996 imposes a duty upon the Defendant 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 of the Standards and Framework Act 1998 is also concerned with parental preference. Section 86(1) 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. In my judgment, the effect of these statutory provisions is 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.

In my judgment, these statutory provisions do not preclude the adoption of a policy which seeks to match school places with the likely demand from children within the catchment area of the school; further, it does not seem to me that these statutory 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. A local authority has an unqualified obligation to secure efficient primary education to meet the needs of the population of its area – see section 13 of the Education Act 1996. In my judgment, it is clearly open to a local authority to conclude that an appropriate means of securing efficient primary education for the whole of its area is 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.

The concept of a catchment area has existed for a very significant period of time in the world of education. There can be no doubt that, occasionally, anomalies will arise in relation to neighbouring catchment areas – particularly in relation to those neighbouring catchment areas within urban areas with comparatively large populations. The existence of such anomalies, however, cannot, in my judgment, constitute a basis for concluding that a local authority is not entitled to adopt and implement a policy in similar terms to the policy which has been adopted by the Interested Party.

Mr Bowen QC submits that one effect of the implementation of the Interested Party's policy in the instant case is or may be that pupils who would attend Eglwys Newydd or Eglwys Wen should those schools continue to exist but who reside out of their catchment areas will be forced to attend a school other than the new school which is intended to replace them. This other school may or may not be the school in whose catchment area they reside. I am prepared to accept that this is a possible consequence of the implementation of the Interested Party's policy. I fail to see, however, why that is a reason why the policy is itself unlawful. In my judgment the fact that the policy may have such an outcome does not render it in conflict with either section 9 of the 1996 Act or section 86 of the 1998 Act. The aim of the policy is the provision of efficient education in whole of the administrative area; parental choice in any given case and, more particularly, the fact that choice in an individual case may be denied is not a reason for concluding that the policy is unlawful.

I am not persuaded that the Claimant has made out ground 4.

One aspect of the Claimant’s case in relation to ground 4 is linked to her final ground of challenge. The Defendant and Interested Party accept that the number of places available to pupils from outside the catchment area of the new English medium school will be limited, probably very limited. The Claimant relies upon this state of affairs as demonstrating that the Interested Party’s policy is unlawful since a rigorous application of the policy will impact upon parental choice. I have explained why I do not accept that submission. However, the Claimant says that there is nothing like the same impact upon parental choice in the Welsh medium sector. Mr Bowen QC submits that such is the capacity of the new Ysgol Melin Gruffydd and such is the likely demand for places in that school from pupils in its catchment area that a more substantial number of places will be available in that school for pupils who reside out of the catchment area. I turn to deal with this issue in the context of ground 5

In its policy document of November 2006 (see paragraph 109 above) the Interested Party set out a number of core principles with a view to providing viable and successful schools that offered good quality learning opportunities and which raised standards of achievement as part of their broader roll in community engagement. Those broad aims were based on the principles of equality inclusion and efficiency. One of the components of the policy, as I have said is “local schools for local children”.

This policy document was intended to apply (and still applies) to both English medium and Welsh medium education for which the Interested Party is responsible. There is nothing contained within the document which, on its face, suggests that it is discriminatory as between English medium learners and Welsh medium learners. Yet ground 5 alleges that the Interested Party's policy for education within the city is discriminatory and/or has been applied in a discriminatory manner and the Defendant has, therefore, acted unlawfully in approving the Interested Party's published proposals.

In the Statement of Facts and Grounds upon which the whole of this claim is based the Claimant articulated the claim of discrimination as follows:-

“89.

The Claimant will contend that the Council’s proposal to close EN and EW and the Defendant's approval of it was based upon the Council's unlawful policy and that the Defendant has failed to recognise that the policy (irrespective of its legality) has (as per ground 4 above) been applied in such a way as to discriminate between English and Welsh-medium learners.

90…..

91.

Whilst it is perfectly lawful, as the Council does by its admissions policy, to give local children an enhanced chance of obtaining a place at a local school by a selection criteria, it is unlawful to deliberately construct a system by planning (as this Council appears to be doing and the Defendant in embracing these proposals is endorsing) a system that 1) unlawfully restricts and renders illusory the expression of a parental reference under S.86 SSFA for English-medium education and 2) guarantees that (unlike the parents of potential Welsh-medium learners at YMG) the vast majority of parents desirous of English-medium places will not be able to gain a place at a school outside their own immediate catchment area when they make a positive decision to prefer an out of catchment (English-medium) school to their in catchment school (English-medium) school.

92….

93.

However, in bringing forward the expansion plans for YNG the Council has relaxed its own policy aims and has discriminated both at common law and under the Race Relations Act, against the English speaking learners at EN in favour of the Welsh speaking learners at YMG.

94.

The data, as understood by the Claimant, shows that the Council are creating excess capacity at YMG in excess of the local demand that exists for Welsh speaking places and is allowing parents from out of the immediate area to express a preference for what is a neighbourhood school.

95.

The Councils’ data shows (by way of example) that even accounting for the larger catchment area of YMG 90 of the 313 places in 2008 were occupied by children from outside the YMG catchment area (28.7% - as opposed to the 39% of out of catchment children attending EN which the Defendant relies upon to establish it is not a “popular” school) yet despite the growth in demand coming from outside its catchment area, the Councils still intend to expand YMG whilst simultaneously closing EN and EW – popular and effective schools – and reducing the English-medium primary school places available in the Whitchurch area in order to meet demand in the Welsh sector.”

The grounds as formulated contain no exposition of the relevant “common law” principles relating to discrimination which are said to be breached. Further, the Claimant did not identify any particular section of the Race Relations Act in relation to which there was or might be a breach (although section 1 and 17 are mentioned in other parts of the Statement of Facts and Grounds).

In the skeleton argument presented on behalf of the Claimant one paragraph only is devoted to the allegation of discrimination. Paragraph 84 is the paragraph and it reads as follows:-

“As set out in the Claimant's grounds, the Councils' plans were to create Welsh-medium capacity in excess of local catchment demand whilst frustrating parental choice in relation to English-medium schools…by limiting the planning of school places to their calculation and in catchment demand. This is contrary to the cardinal principle of common law that “like cases must be treated alike” (R (G v Barnet London Borough Council [2003] UKHL 57; [2004] 2 AC 208 at [46]). The council have created and the Defendant has approved an uneven and discriminatory playing field between the English and Welsh-medium systems of education not only by the far more general resource allocation decision that YMG when compared to the new merged English-medium school but by the effective elimination of parental choice in the English-medium sector and its preservation in the Welsh-medium system.”

Despite the apparent reliance upon G this authority was not contained within the bundle of authorities produced for the court. Having read G for myself I am not surprised. The context of that case is completely different and the expression “like cases must be treated alike” arises in a completely different context.

As it seems to me, therefore, Mr Bowen QC has failed to identify the legal basis for the claim based upon discrimination either in the grounds or in the skeleton argument presented on behalf of the Claimant.

Factually the Claimant's complaint appears to rest upon the fact that the new school, Ysgol Melin Gruffydd, will have a greater capacity to take children from outside its catchment area than the capacity of the new English medium school to take such children; there is also a complaint that a greater amount of capital expenditure will be laid out in respect of the Welsh medium school. During the course of his oral submissions in opening, Mr Bowen QC did not elaborate further upon either the legal basis of ground 5 or its factual content.

Both the Interested Party and the Defendant acknowledge that a greater number of pupils from outside the catchment area might be offered a place at Ysgol Melin Gruffydd (should the proposals be implemented) than will be the case in the English-medium school. Both of those parties deny, however, that this consequence means that discrimination has occurred. The approach taken by the Defendant and the Interested Party is that the published proposals seek to provide a suitable number of places to meet local catchment demand for both English medium and Welsh medium schools based upon projections of demand for education in both mediums. It cannot be a proper basis for a complaint of discrimination that, on the figures, a greater number of pupils from out of catchment may have the opportunity of attending a particular Welsh medium school as opposed to a particular English medium school when the whole object of the proposals is to provide a better match between catchment demand and capacity of the schools. There are many fewer Welsh medium schools in the administrative area for which the Interested Party is responsible and the catchment areas are bigger. Those factors, too, must be considered in this alleged discrimination claim submit the Defendant and Interested Party.

On the issue of capital expenditure, the Interested Party and Defendant assert that the sole reason why capital expenditure is greater at the proposed new Welsh school is simply because the physical features of the current school and the necessary improvements demand such expenditure.

I have considered the written reply of Mr Bowen QC with care. There is no part of it which properly explains the legal basis of the claim to discrimination. Paragraph 28 of the reply and the submissions which follow it come closest but, to repeat, I do not consider the precise legal basis upon which this claim to discrimination has been articulated.

If ground 5 is, in truth, no more than a complaint that the Interested Party's policy of “local schools for local children” is unlawful it adds nothing to ground 4. If, in reality, it is supposed to represent a freestanding allegation that the Defendant (and the Interested Party) have discriminated against pupils choosing English medium educational provision it has singularly failed to identify the legal principles and/or basis upon which it rests. The unparticularised references to section 1 and 17 of the Race Relations Act which are mentioned in the grounds but which were never mentioned again do not provide any such foundation and the Claimant has failed to identify any other relevant principle or statutory provision upon which there is a secure foundation for a claim of discrimination.

Article 2 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedom specifies that no person shall be denied the right to education. In deciding whether there has been a breach of Article 2 of the First Protocol the decisive question is whether “the authorities [have] acted so as to deny a pupil effective access to such educational facilities” see Lord Bingham in A v Head Teacher & Governors of Lord Grey School [2006] 2 AC 363 at para 24.

Mr Bowen QC acknowledges that Article 2 of the First Protocol, standing alone, does not create a right to education at a particular school. He submits, however, that there is a breach of Article 2 in this case which is brought about by reason of the policy “local schools for local children”.

I am prepared to assume (although not decide definitively) that had I been minded to say that the Interested Party's policy was unlawful there may have been a breach of Article 2 of the First Protocol. However, given my views upon the lawfulness of the policy Article 2 simply does not arise in the context of this case.

The Claimant also relies upon Article 14 of the Convention itself which provides:-

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Having found that the Interested Party's policy is not unlawful and having found that there is no basis for a claim that the application of the policy has discriminated against anyone it is difficult to see how Article 14 can have any application in this case.

In my judgment the human rights issues were raised as an afterthought and add nothing to the substantive grounds of challenge.

The Defendant's conclusion that Eglwys Newydd was not a popular school was legally flawed in the manner I have described. Further, there was no sufficient evidence before the Defendant from which it was proper for him to conclude that the new English medium school and the expanded Welsh medium school would provide education at a total lower cost than would be the case were Eglwys Wen, Eglwys Newydd and Ysgol Melin Gruffydd to remain in existence. However, I have reached the clear provisional conclusion that no useful purpose would be served in quashing the Defendant's decision and remitting it to him for reconsideration. My provisional view is that he would decide, upon reconsideration, that Eglwys Newydd was not a popular school and, in those circumstances, issues relating to the costs associated with the provision of the new schools as opposed to maintaining the status quo would not arise. However, I am conscious that the parties have not had the opportunity to address the issue of relief in the light of this judgment and, in particular, in the context of my conclusions about the meaning to be attributed to the phrase “popular school”. Accordingly, at the hand down of this judgment I am prepared to hear short submissions directed to whether or not it is appropriate to grant a quashing order in this case.

My original plan was to hand down judgment on 21 December 2011. In the event, I did not. However, a hearing took place on 21 December at which I decided it was not appropriate to grant any relief to the Claimant and, in particular, it was not appropriate to grant a quashing order. At that hearing, I also determined the issue of costs and provided an appropriate mechanism for an application for permission to appeal should the Claimant wish to seek permission. At the hearing, I indicated that I would explain why I had decided not to a quashing order in an addendum to my judgment. The following paragraphs contain my reasons for refusing to grant a quashing order.

The starting point is R (Edwards) v Environment Agency [2008] ENV.L.R. 34. Paragraphs 62 and 63 of the speech of Lord Hoffman (with which the other law lords agreed) are as follows:-

“62.

That brings me, finally, to the question of whether the judge and the Court of Appeal were right to refuse relief for the procedural irregularity which they found established, namely the failure to publish the two AQMAU reports.

63.

It is well settled that “the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary” (Lord Roskill in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] A.C. 617, 656.) But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it. So in Berkeley v Secretary of State for the Environment[2001] 2 A.C. 603 it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA Directive on the ground only that the outcome was bound to have been the same. The relevant domestic legislation provided that it in such a case the grant of permission was to be treated as not within the powers of the Town and Country Planning Act 1990. Lord Bingham of Cornhill said (at p. 608) that even in a domestic context, the discretion of the court to do other than quash the relevant order “where such excessive exercise of power is shown” is very narrow. The Treaty obligation to give effect to European law reinforces this conclusion. I made similar observations at p. 616. But I agree with the observation of Carnwath LJ in Bown v Secretary of State for Transport, Local Government and the Regions [2004] ENV. L.R. 509, 526, that the speeches in Berkeley need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. In Berkeley, the flaw was the complete absence of an EIA and the sole ground for the exercise of the discretion the result was bound to have been the same.”

On the basis of this passage in Lord Hoffman’s speech I accept, without reservation, that in most cases in which a decision has been found to be flawed, it would be not be a proper exercise of discretion to refuse to quash it. However, as Lord Hoffman also points out the starting point for the decision about whether or not a quashing order should be granted is the nature of the flaw in the decision in question.

In this case the Defendant relied upon two reasons for concluding that Eglwys Newydd was not a popular school (see paragraph 52 above). I have found that the Defendant’s reliance upon one of those reasons, namely the pupil numbers at Eglwys Newydd at a specific moment in time (January 2010) was unreasonable or irrational (see paragraphs 57 and 66).

As Mr Lewis QC points out, however, it does not follow necessarily that because the Defendant’s reasoning process was flawed, his conclusion that the school was not a popular one within the Circular was also flawed.

The issue of whether or not Eglwys Newydd was a popular school should have been considered by reference to the factors described in this judgment at paragraphs 45 to 50 above. The Defendant should have asked himself, first, whether Eglwys Newydd was a school which was very well attended i.e. whether, judged over a period of years, its surplus places was 10% or less. The answer to that question, as I have said, was clear. Eglwys Newydd was not a school which was very well attended; its surplus places over many years had exceeded 10% by some margin. It was not a popular school judged by this criterion. The Defendant should, next, have considered whether Eglwys Newydd was a popular school by reference to all of the characteristics of the school which were relevant to that issue. Mr Lewis QC, supported by Mr Roddick QC, submits that there is simply no possibility that had the Defendant considered the issue of popularity in this way he would have concluded that Eglwys Newydd was a popular school.

Mr Bowen QC accepts, as he must, that the surplus places at Eglwys Newydd over a number of years exceeded 10% by some margin. Nonetheless he submits that had the Defendant considered all the school’s relevant characteristics there is at least a possibility that the Defendant would have regarded the school as a popular school within the Circular.

I find myself unable to agree with Mr Bowen’s submission. The reality is that there was no material placed before the Defendant about Eglwys Newydd which permitted of the conclusion that it was a popular school within the Circular. Its relevant characteristics would not have permitted the Defendant to conclude that it was a popular school within the Circular notwithstanding that its track record over some years was of surplus places well in excess of 10%.

In my judgment, therefore, if the Defendant had considered and applied the correct tests in order to ascertain whether Eglwys Newydd was a popular school within the Circular there could have been but one answer, namely that it was not.

It follows from this analysis that although the reasoning process by which the Defendant reached the conclusion that Eglwys Newydd was not a popular school was flawed, nonetheless, the conclusion that the school was not popular was undoubtedly correct. As I indicated at paragraph 148 above, if that was so the issue relating to the costs associated with the provision of the new schools as opposed to maintaining the status quo (ground 3) did not arise for consideration by the Defendant.

Having identified the nature of the flaw in the decision making process as one of reasoning, it seems to me to be clear that it would not be appropriate to grant a quashing order when, despite the flawed reasoning, the conclusion reached by the Defendant, that Eglwys Newydd was not a popular school within the Circular, was unimpeachable upon an application of the correct tests.

I appreciate, of course, that if I acceded to the Claimant’s application for a quashing order then in the ordinary way the Defendant would reconsider whether to approve the published proposals by reference to the information currently available to him. Mr Bowen QC submits that the legal flaws which I have identified are such that the Defendant should be compelled to reconsider the decision to approve the proposals in the light of the information now available. He also submits that the Defendant would be bound to take account of this judgment when reconsidering his decision.

I accept that the Defendant would be bound to act in accordance with this judgment insofar as it explains the appropriate test for determining what constitutes a popular school. Upon the assumption that he did so, I have no doubt that the Defendant would conclude that Eglwys Newydd was not a popular school. The reality is that nothing has changed since the time of the original decision; there has been no change of circumstance which conceivably might lead to a different conclusion about the popularity of the school.

I accept that SENAG and the Claimant have produced a great deal of information in the course of these proceedings designed to demonstrate that the Defendant’s approach was legally flawed. I accept, too, that some of this information may not have been before the Defendant at least in the same form and probably not in as much detail when he made his decision on 28 January 2011. However, there are two points to be made about that. The first is that the thrust of the complaints made in these proceedings were certainly before the Defendant in the form of objections and it is clear that he took account of them when making his decision. More importantly, for present purposes, I have rejected the suggestion that the Defendant’s decision was flawed save in the respects identified in this judgment. What useful purpose would be served by compelling the Defendant to consider again a decision he made as recently as 28 January 2011 when on the issue of popularity his decision would undoubtedly be the same with the consequence that ground 3 would fall away and when in all other respects I have upheld the lawfulness of the Defendant’s decision? I consider the answer to that question is obvious; no useful purpose would be served.

Finally, I should record that it was submitted on behalf of the Claimant that the Defendant is bound to reconsider his decision in any event because in his decision letter of 28 January 2011he made it a condition of approval of the published proposals that the Interested Party obtain all necessary planning consents by 31 December 2011. It is common ground that planning consents will not be obtained by 31 December 2011.

The short answer to this point is that the Interested Party has sought and the Defendant has granted an extension of time to 28 February 2012 for obtaining the necessary planning consents. Paragraph 10(2) of Schedule 6 to the School Standards and Framework Act 1998 permits the Interested Party to make an application for an extension of time. Sub-paragraph 10(2)(b) empowers the Defendant to grant the extension. I do not read the sub-paragraph as requiring the Defendant to consult before making a decision although such an obligation would arise if he was considering whether to “modify the proposals” under Paragraph 10(2)(a).

I end by repeating in writing what I said at the close of the oral hearing on 21 December 2011. I have found this a difficult and challenging case and I would like to express my thanks to all the parties and their lawyers for the assistance which they have afforded to me.