Law Report: School's suitability not relevant: Regina v Dyfed County Council, ex parte S (minors) - Court of Appeal (Lord Justice Butler-Sloss, Lord Justice McCowan and Sir Ralph Gibson), 7 July 1994

The suitability of a mainly Welsh-speaking primary school for the children of English-speaking parents living in Wales was not something a court was required to decide when considering whether, under section 39(2)(c) of the Education Act 1944, 'suitable arrangements have been made by the local education authority . . . for (the children's) transport to and from the school'. Nor was it relevant to the question of whether the authority acted lawfully in declining to provide, under section 55 of the Act, free transport to a more distant, mainly English- speaking school.

The Court of Appeal dismissed an appeal on behalf of three children of English-speaking parents living in Wales, against the dismissal by Mr Justice May (Independent, 21 December 1993) of their application for judicial review of Dyfed County Council's decision not to provide them with free transport to a mainly English- speaking primary school 10 miles away, on the ground that they could attend a mainly Welsh- speaking school nearby.

It was the authority's policy to educate pupils in Welsh and English so they were thoroughly bilingual on leaving primary school. The eldest child, now aged nine, had initially attended a nearby school, which used Welsh 90 per cent of the time in the nursery and infant phase and 50 per cent in the junior phase. But her parents expressed a preference for her not to be taught in Welsh as it was causing her learning difficulties, so in 1989 she was moved to the more distant school, which used only 15 per cent Welsh. The younger two children, now aged eight and six, also then attended the further school. But in 1991 Dyfed decided to cease providing them free transport to that school.

David Pannick QC and Jonathan Swift (Teacher Stern & Selby) for the appellants; Lord Williams of Mostyn QC and Gregory Treverton- Jones (Dyfed CC) for the education authority.

LORD JUSTICE BUTLER- SLOSS said the judge concluded that it was not appropriate for him to consider the suitability of the nearer school, and that the authority had not acted unreasonably in refusing free transport to the further school.

Mr Pannick argued that, in considering whether the authority acted unlawfully in refusing free transport, the court had to consider section 39 of the Education Act 1944 and decide whether the proposed school was objectively suitable. He argued that the nearer category was objectively unsuitable for these three children, on the sole ground of its predominant use of Welsh.

Section 39(1) made parents guilty of an offence if their children failed to attend school. The defences provided by subsection (2) included: '(c) if the parent proves that the school at which the child is a registered pupil is not within walking distance of the child's home, and that no suitable arrangements have been made by the LEA either for his transport to and from the school or for boarding accommodation for him at or near the school or for enabling him to become a registered pupil at a school nearer to his home.'

In R v Rochdale MBC, ex p Schemet (1992) 91 LGR 425 at 442, Roch J said 'the proper construction of section 39(2)(c) is that arrangements will not be suitable unless the school is suitable for the particular pupil'. That interpretation of 'suitable arrangements' was approved by Staughton LJ in R v Essex CC, ex p C (unreported, 24 November 1993, CA). Mr Pannick argued that the effect of this decision was to allow a parent to raise in defence under section 39(2) the unsuitability of the school itself, as well as the transport arrangements thereto.

In her Ladyship's opinion, however, the issue to be resolved in C's case was the extent to which parental preference, under section 6 of the Education Act 1980, was to be determinative of the choice of school. The passage relied on from Staughton LJ's judgment was not a necessary part of that decision. In any event, her Ladyship was firmly of the view that it was wrong. 'Suitable' related to the arrangements and not to the school.

There was a distinction between the objective suitability of the school which a child attended and the practical arrangements for the child's attendance which might include transport, boarding accommodation or enabling the child to become a registered pupil at a school within walking distance.

Both the 1944 Act and later Acts covered comprehensively the strict requirements for suitability of schools in quality of teaching, structure of buildings, inspection by HM inspectors and, under section 6 of the 1980 Act, parental preference. It was inconceivable that Parliament intended the objective suitability of a school to be a defence in a subsection dealing with the lack of travel arrangements.

For these and other reasons, the appeal should be dismissed.

LORD JUSTICE McCOWAN and SIR RALPH GIBSON agreed.