Edwards, R (on the application of) v Flintshire County Council

The Claimant seeks to challenge the decision of the Defendant local education authority (“the Council”) dated 15 September 2015 to issue statutory notices under section 48 of the Schools Standards and Organisation (Wales) Act 2013 (“the Act”) to change the age range at John Summer High School, Queensferry (“the High School”) from 11-18 to 11-16 by 31 August 2016 and to close the school from 31 August 2017.

Given that there is, understandably, considerable public interest in the future of the High School, and many members of the public (including students from the High School) have attended the hearing today, I pause to emphasise that the National Assembly for Wales, through the Act, has determined that decisions in relation to school arrangements are to be taken by local education authorities and the Welsh Ministers, all of whom are democratically-accountable. The assigned decision-maker in this case is the Council. The role of this court is limited, effectively, to supervising the procedure that the assigned decision-makers adopt in coming to any decision. If the procedure is materially wrong and unlawful, then the resulting decision may be unlawful, in which event the court may declare it to be so, quash the decision and direct that the decision-maker reconsider and make a lawful decision.

In this case, Nicholas Bowen QC and David Lemer for the Claimant submit that the procedure adopted by the Council was indeed unlawful. The sole basis of challenge to the decision of 15 September 2015 is that, in its consultation process, the Council failed to comply with its obligation under section 38(4) of the Act to act in accordance with the Welsh Ministers’ Code of School Organisation.

The relevant law can be shortly put.

As I have indicated, the Act sets out a statutory process for establishing, altering and discontinuing schools in Wales. Sections 41-47 deal with changes to secondary schools.

The Act requires the Welsh Ministers to issue a code on school organisation (section 38(1)), which may contain requirements and/or guidelines (section 38(2)). By section 38(4), those who exercise functions in relation to school organisation in Wales, including local education authorities:

“… must, when exercising [those] functions –

(a)

act in accordance with any relevant requirements contained in the Code, and

(b)

have regard to any relevant guidelines contained in it.”

Section 48 requires a proposer for change to publish the proposals, consult and publish a report on the consultation, all in accordance with the published code.

In April 2013, the Welsh Ministers published a Code on School Organisation (“the Code”) as required by section 38(1), which came into force on 1 October 2013. Section 38(4) and the Code as published were recently considered by His Honour Judge Keyser QC, sitting as a judge of this court, in R (McCann v Bridgend County Borough Council [2014] EWHC 4335 (Admin), a case upon which Mr Bowen specifically relied. Judge Keyser rightly emphasised the summary section of the Code, which makes clear:

“The Code contains the following elements:

1.

It imposes requirements in accordance with which relevant bodies… must act. Failure by a relevant body to comply with the requirements set out in this Code may result in a complaint to the Welsh Ministers or to the Public Services Ombudsman for Wales.

Where mandatory requirements are imposed by the Code or by the 2013 Act or another statute or statutory instrument, it is stated that the relevant bodies must comply with the particular provision….

2.

It includes statutory guidance to which relevant bodies must have regard.... Where guidance is given by the Code, it is stated that relevant bodies should follow this guidance unless they can demonstrate that they are justified in not doing so.”

The matters in the Code falling within section 38(4)(a) are thus mandatory: the proposer (in this case, the Council) “must” comply with them. As Mr Bowen QC for the Claimant put it today, they are instructions rather than mere guidance.

Chapter 3 of the Code deals with “Consultation”. So far as material to this claim, it provides (all emphasis in the original):

“3.2

Consultation Document

Those bringing forward statutory proposals must publish a consultation document in hard copy and electronically on their website or that of the relevant local authority. Hard copies must be available on request. Consideration should be given to publishing in other formats where accessibility might otherwise be an issue.

The following must receive either a hard copy of the consultation document or be emailed a link to the relevant website (but see also the section on Consultation with Children and Young People):

…

the governing body of any school which is the subject of the proposals and of other schools likely to be affected by the proposals, including those that might receive any displaced pupils;

…

3.3

Consultation with children and young people

Proposers must also make suitable arrangements to consult with pupils of any affected school… and where possible, with children and young people who are likely to attend those schools. As a minimum, this must include consultation with the school councils of the affected schools, but should also include consultation with individual learners where this is appropriate and practicable. Governing bodies must help facilitate this aspect of the consultation.

…

3.4

Procedures

There is no requirement for proposers to hold consultation meetings although there will be circumstances where proposers will consider that meeting with certain groups of consultees will assist greatly in the dissemination of information and provide a suitable platform for the consultees to make their views known….

Proposers may use other ways to engage consultees as they think appropriate….

3.5

Consultation Reports

Within 13 weeks of the end of the period allowed for responses (and in any event prior to publication of the proposals), the proposer must publish a consultation report:

•

summarising each of the issues raised by consultees;

•

responding to these by means of clarification, amendment to the proposal or rejection of the concerns with supporting reasons; and

•

Setting out Estyn’s view (as provided in its consultation response) of the overall merits of the proposal.

…

Proposers must ensure that any views expressed by children and young people affected by the proposals are highlighted in the consultation report and that it is accessible to them…”.

Turning to the factual background, with Connah’s Quay High School, Hawarden High School, St David’s High School, Saltney, and seven primary schools, the High School is part of the North Flintshire Schools Consortium.

Over the last decade, the High School has suffered from declining pupil numbers, due mainly to the decline in local industry and resulting movement of families with school-aged children from the area. In February 2010, the Council submitted a Strategic Outline Plan to the Welsh Government, which included a proposal to close the High School. Following consultation, the planned closure was abandoned, and the Council agreed to develop a business plan for the School to be retained as a 3-16 age range school on a replacement campus. A statutory proposal to that end was put forward, and agreed by the Welsh Ministers on 14 August 2014.

However, in October 2014, the Council notified the High School that there would be a “pause and review” in relation to the proposal. On 17 February 2015, the Council decided not to proceed with the proposal, as a result of concerns over the resilience of the data in respect of projected pupil numbers which underpinned the capital business case for funding. The Council’s Cabinet resolved to conduct a further consultation “on how best to secure a resilient sustainable high quality education in the area for future report to Cabinet”.

On 5 June 2015, the Council commenced a formal consultation in relation to proposals to change the age range of the High School from 11-18 to 11-16 by 31 August 2016, and to close the School entirely the following year.

A formal consultation document and supplementary documents were sent out to various interested parties, and were published on the Council’s website, on 5 June 2015. The consultation document and a children’s and young person’s versions of the same were sent to the other secondary schools in the School’s consortium. The period of consultation ended on 17 July 2015, and a consultation report was thereafter produced by officers. The matter went before the Council’s Education and Youth Committee on 30 July 2015 which approved the proposal; and the Council’s Cabinet approved the decision on 6 August 2015. However, the matter was then called in by the Council’s Overview and Scrutiny Committee because of concerns about transport transitional provisions and the future of the site; and, on 24 August 2015, that Committee sent the matter to the Council’s Cabinet for reconsideration and further decision. On 15 September 2015, the Cabinet again approved the proposal. That is, of course, the decision that is now subject to challenge. The requisite statutory notices were sent out by the Council on 16 October 2015.

In the meantime, the Claimant (who lives in Queensferry, and whose children are, have been or likely would be at the School) sent a pre-action protocol letter to the Council on 23 September 2015 seeking to challenge the 6 August decision on the basis that the consultation that preceded it was flawed. The Council responded substantively on 29 October. This claim was issued on 10 December 2015. On 21 January 2016, Dove J refused permission to proceed on the papers. Mr Bowen QC and Mr Lemer have this morning renewed the application for permission on behalf of the Claimant.

Although there are several strands, Mr Bowen relies upon only one basis of challenge, namely that, in the consultation exercise that preceded the decision, the Council failed to comply with its section 38(4) duty to act in accordance with the requirements of the Code, as follows:

The starting point is the Code. Whilst it requires a proposer of change to take certain steps in respect of consultation – as I have explained, the proposer “must” do certain things – the scheme allows the proposer a certain amount of discretion or judgment as to when these duties are triggered and, if the duty is triggered, how it is to be performed. For example, although it must consult with pupils from, not just the school that is the subject of the proposals, but also “any affected school” (paragraph 3.3. of the Code), (i) the relevant authority has to exercise judgment as to whether a particular school would or would not be affected by the proposals, and (ii) the duty is “to make suitable arrangements” to consult such pupils. There are many ways in which an authority might, perfectly appropriately and lawfully, consult with pupils. “Suitable” has inherent within it an exercise of judgment.

Mr Bowen this morning submitted that what amounts to “suitable arrangements” is a matter for the court to determine. He relied upon the comments of Lord Reed JSC in R (Osborn) v Parole Board [2013] UKSC at [65], in which he said that it is a question for the court (not for the decision-maker, subject only to a challenge on public law grounds) as to whether common law procedural fairness requires a indeterminate sentence prisoner to be given an oral hearing by the Parole Board. However, that authority has no bearing on the issues in this case, for the following reasons.

The nature of a public authority’s duty to consult (and, in particular, the relationship between that duty and public law fairness) has recently been considered by the Supreme Court in another case to which Mr Bowen referred, namely R (Moseley) v Haringey London Borough Council [2014] UKSC 56 notably at [23] and following per Lord Wilson JSC and, especially, the judgment of Lord Reed at [34]-[41] with which Baroness Hale DPSC and Lord Clarke JSC expressly agreed (at [44]). The case emphasises that which was made clear by Sedley LJ in the well-cited R (BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWCA Civ 1139 at [43]-[47], namely that there is no general common law duty to consult persons who may be affected by a measure before it is adopted. However, there may be a statutory duty to consult; or an obligation to consult may arise because of the common law duty of fairness. Lord Reed also stressed (at [41]) that, in any event, the content of the duty to consult is highly fact-specific, i.e. it depends on the circumstances.

In the passage from Osborn upon which Mr Bowen relies, Lord Reed was considering a matter contextually far away from that of consultation, namely the common law right of indeterminate sentence prisoners to a fair hearing before the Parole Board. There is no claim in this case that the Council owed anyone a common law duty to consult. If there were such a claim – and even if it could be said that the common law duty of fairness would require consultation with (say) the pupils and parents of the subject school on the basis of legitimate expectation (see Moseley at [35]) – the duty could not conceivably extend to the pupils and parents of other schools that might be affected by the proposed changes, which lie at the heart of this particular part of the challenge.

In the event, the claim is, quite properly, restricted to the obligation to consult derived from the Code, which is itself derived from the Act. Where a duty to consult arises, not as a result of common law obligations to be fair, but out of a statutory scheme, it is clearly open to the scheme to give the decision-maker a discretion or area of judgment as to who should be consulted and how such consultation may be done, so long as it satisfies the basic requirements of a proper and meaningful consultation as set in R v Brent London Borough Council ex parte Gunning(1985) 84 LGR 168 at page 169. The exercise of such judgment is only subject to challenge on public law grounds, including Wednesbury unreasonableness. The courts will be slow to add to the burden of consultation which the relevant democratically elected or otherwise accountable body has decided to impose (including, of course, that imposed in statutory guidance) (see, e.g., (R (Plantagenet Alliance Limited) v Secretary of State for Justice and Others [2014] EWHC 1662 (Admin) (“the Richard III case”) at [98]).

Turning to the specific grounds, first, Mr Bowen complains that the Council did not specifically consult with Elfed High School. The Council accepts that it did not do so – although it submits that Elfed would have been bound to have known about the well-publicised proposed change at the School, and could and would have made any observations that it had to the Council during the consultation period. Be that as it may, the Council took the view that Elfed was not an affected school, being part of the South Flintshire Schools Consortium and some distance from the High School. The Council took the view that it was unlikely that Elfed would be directly or significantly affected by the proposal (see paragraph 29 of the statement of Damian Hughes dated 13 January 2016: Mr Hughes is Senior Manager (School Planning and Provision) with the Council).

Mr Bowen submits that, in its consultation document, the Council conceded that Elfed was affected by the proposal. Under the heading, “Impact of closure of post 16 provision and the 11-16 on neighbouring schools and across the Local Authority”, it said, in respect of Elfed High School:

“Implications of post 16 age range change: There is no ongoing recruitment of post 16 learners at this school. Consequently there would be no direct implication of this change.

Implications of John Summers High School closure: If the proposal limits the flexibility for parents in the Buckley area to choose Hawarden High School, there is sufficient capacity at Elfed High School to accommodate additional learners.”

The Council, in paragraph 12 of its Detailed Grounds of Opposition, submits that the Code requires consultation with schools likely to be significantly affected by proposals; it does not require every school where there is merely a possibility of some indirect or less than significant effects to be treated as such, which would mean a potentially huge range of schools would have to be consulted; the Council took the view that any effect on Elfed would be indirect and/or insignificant; and the reference in the consultation report was to a mere conditional possibility of indirect effect that the proposal may have upon Elfed. I agree with the thrust of those submissions. In respect of this ground, Mr Bowen does not argue that the Council acted irrationally in excluding Elfed from the category of affected schools – nor, given the wide discretion given to an authority by the scheme, could he – and the reference in the consultation paper upon which he relies is not arguably a concession by the Council that Elfed as an affected school.

For those reasons, there is no force in this subground.

Second, in the strand of argument most developed today, Mr Bowen submitted that the Council erred in not consulting the school councils of schools other than the School. In effect, he extended the argument today to one stretching to all consultation with other schools, their pupils and others involved with them.

The Council accepts that it did not arrange consultation events directly with the pupils or school councils at schools other than the School. However, as I have already described, the Code requires only that “suitable arrangements” are made to consult with pupils of any affected school, which must as a minimum include consultation with the school councils of affected schools but also with learners at such schools where this is appropriate and practicable (paragraph 3.3). It expressly provides that there is no requirement to hold meetings (paragraph 3.4). In fact, the governors of Connah’s Quay and Hawarden High Schools (consortium secondary schools considered by the Council to be affected schools) did in fact hold meetings at which pupils governors and school council representatives were present and at which the proposals were discussed.

The Council sent the consultation documents and supporting documents to each school. Mr Bowen complains that it was insufficient for the Council to pass the buck, by merely asking other schools to pass information onto children and parents, rather than themselves doing so; there is no evidence that the governors of Connah’s Quay and Hawarden High Schools in fact passed on information to the school councils; and, in any event, no meetings were held with the governors of St David’s School, and so there was not that means of passing on information to school councils in the case of that school in any event. However, that fails to take into account the obligation placed upon the governing bodies of such schools by paragraph 3.3 of the Code, under which, in respect of consultation with school councils, governing bodies are mandated – “must” being emphasised in the original – to “facilitate this aspect of the consultation”. Much of Mr Bowen’s focus this morning has been on the failure of the Council to engage with school councils directly: that focus is wrongly directed.

However, in a different strand of argument, Mr Bowen submitted that the consultation with these other schools was not adequate, because it was (clearly, he says) not effective. He submitted that the returns from the consultation exercise themselves evidence a lack of proper engagement with the other schools: 95% of responses came from the pupils, parents and other people interested in the High School, and only 5% from other schools. He also relied upon (i) the fact that a post-consultation exercise resulted in several returns from the parents of Connah’s Quay parents, expressing concern that mixing Connah’s Quay pupils with those students currently at the High School may be problematic and may result in bullying, and (ii) paragraphs 38-40 of the statement of Paula Stanford (the current Headteacher of the High School) dated 7 December 2015, which also expresses concern about mixing the pupils.

However, there is no evidence that the governing bodies of these other schools did not do what the Code required them to do. It is not in the least surprising that the vast majority of consultation returns were from pupils and others involved in the High School (which it is proposed to close), and few returns were made from pupils etc from other schools (which are to remain, but have more within-capacity pupils). The issue of how pupils from the High School would mix with pupils at other schools where they might be transferred was raised in some of the consultation responses was clearly an issue which the decision-makers took into account. It appears to have been a matter which they considered could be effectively dealt with during the implementation stage. In my view, none of this suggests that the consultation was ineffective, or other than in accordance with the Code.

For those reasons, in my judgment, the steps taken prior to 15 September 2015 were sufficient to discharge the relevant duty to consult under the Code.

After the Claimant’s pre-action protocol letter had been received, the Council wrote to the school council of each school considered to be affected, and asked them to provide any additional comments they wished to make on the proposals. The responses received raised no significant new matters. Nor did the publication of the statutory notices give rise to any new matters.

Mr Bowen submits that, insofar as this was an attempt to cure inadequate consultation, it failed; because it is trite law, emphasised in Gunning, that consultation must take place at a stage when proposals are at a formative stage. After 15 September, they were not.

However, as I have found, the consultation before 15 September was adequate. Nevertheless, having arrived at that conclusion, it comes as some comfort that, when given a further opportunity to comment, none of the relevant schools considered there was anything else to add.

For those reasons, I do not consider any subground of Ground 1 to be arguable.

In respect of Ground 2, Mr Bowen submitted that the Council failed properly to highlight the views of children and young people, as required by paragraph 3.5 of the Code. He accepted that, so far as pupils from schools other than the High School were concerned, this ground was effectively parasitic upon Ground 1; but, in respect of the High School pupils, it was a discrete ground.

Paragraph 3.5 of the Code expressly requires the authority to “highlight any views expressed by children and young people affected by the proposals”. That was required, he submitted, to ensure that the decision-makers were properly informed of their views at the time of the decision, and also to avoid a sense of injustice arising in the children and young people from a feeling that their views have not been taken into account. He submitted that the consultation report did not comply with paragraph 3.5 of the Code, because it did not highlight concerns of young people (i) arising from being moved school in the second year of their GCSE studies, and (ii) in relation to the risk of bullying if transferred to Connah’s Quay High School.

However:

Therefore, I do not consider it arguable that there was any breach of paragraph 3.5 of the Code. As a result, nor do I consider Ground 2 arguable.

I appreciate the strong feelings that the issue of the future of the High School has engendered. That is clear from what I have read, and it has been reinforced by Mr Bowen this morning. However, as I said at the beginning of this judgment, the court can only interfere if the decision challenged is unlawful – and permission to proceed can only be given if it is arguably unlawful.

Disappointing as this no doubt will be to many, for the reasons I have given, despite the considerable efforts of Mr Bowen, like Dove J, I have concluded that none of the grounds relied upon is arguable; I do not consider there is any other reason why this matter should proceed to a full hearing; and I consequently refuse this application.