Court of Appeal allows appeal by council over lawfulness of schools reorganisation decision

A Welsh council has won its appeal over whether a decision in relation to a major schools reorganisation programme was taken lawfully.

In July 2019 Rhondda Cynon Taf County Borough Council decided to implement wide-ranging proposals for primary, secondary and sixth-form education in the Pontypridd area.

In Driver, R (On the Application Of) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) Mr Justice Fraser in July 2020 quashed that decision.

The judge concluded that the decision to re-organise sixth form education was taken in breach of section 50 of the School Standards and Organisation (Wales) Act 2013 (ground 1); and that the council had failed to take into account a specific factor for proposals to reorganise secondary schools or remove sixth forms, namely how the proposals might affect the sustainability or enhancement of Welsh medium provision in the regional 14 – 19 network and wider area and promote access to availability of Welsh medium courses in post 16 education (Ground 2(g)).

Rhondda Cynon Taf appealed.

In Driver, R (On the Application Of) v Rhondda Cynon Taf County Borough Council [2020] EWCA Civ 1759 there were five grounds of appeal:

(1) The judge was wrong to hold that section 50(2) [concerning certain proposals for school reorganisations requiring the approval of the Welsh Ministers] the 2013 Act/Deddf [the School Standards and Organisation (Wales) Act 2013] did not specify the only ways in which proposals could affect sixth form education (ground 1);

(2) The judge was wrong to hold that the word "only" and the phrase "yn unig" in the English and Welsh texts of section 50(2)(a) did not qualify what a school provides (that is, sixth form education only) (ground 2);

(3) The judge was wrong to find that Rhondda Cynon Taf breached paragraph 1.9 of the School Organisation Code in relation to proposal 4 [the closure of Ysgol Gynradd Gymraeg Pont Sion Norton], as that paragraph applies to the reorganisation of secondary education, not primary education (ground 3);

(4) To the extent that the judge found a breach of paragraph 1.4 of the Code [the taking into account of how the proposals might affect the sustainability or enhancement of Welsh medium provision in the local 14-19 network and wider area and promote access to availability of Welsh medium courses in post-16 education], that finding was (a) vitiated by a serious error, as there was no allegation of a breach of paragraph 1.4 and Rhondda Cynon Taf had no opportunity to address the issue in its pleadings, evidence, or submissions and (b) wrong (ground 4); and

(5) The judge was wrong to find that Rhondda Cynon Taf had failed to consider how its proposals for Welsh medium education would impact upon Welsh medium secondary education (ground 5).

Sir Geoffrey Vos, Chancellor of the High Court, giving the judgment of the court, said the appeal would be allowed on grounds 1, 2, 3, 4(b) and 5.

The judge said: “Proposal 2 involving the closure of Pontypridd High School, and proposal 3 involving the closure of Hawthorn High School did not have to be referred to the Welsh Ministers for approval as they did not involve the closure of schools providing only sixth form education. A proposal for the establishment or closure of a school only falls within Section 50(2) of the 2013 Act/Deddf, and requires the approval of the Welsh Ministers, if the school provides education only for those above compulsory school age.”

He added: “Rhondda Cynon Taf did not act unlawfully in deciding to implement proposal 4 to close Pont Sion Norton and Heol y Celyn primary schools. Paragraph 1.9 of the Code does not apply to proposals to re-organise primary schools. Rhondda Cynon Taf did comply with paragraph 1.4 of the Code and did have regard to the need for places for Welsh medium primary education to meet anticipated demand, that existing pupils be able to continue their education through the medium of Welsh and that the proposed new Welsh medium primary school would be accessible.”

Cllr Joy Rosser, Cabinet Member for Education & Inclusion Services at Rhondda Cynon Taf, said: “The council welcomes the decision to uphold the appeal brought by the council, which will now allow us to proceed with our ambitious plan to transform education in the Greater Pontypridd area.

“The council’s plans, which we have not been able to proceed with until now, will invest over £38m to positively transform the delivery of Welsh and English medium education in Pontypridd.”

She added: “The council sought to appeal the original decision of the High Court to ensure we could make this investment a reality but to also seek clarification on the significant legal implications that the High Court decision would have upon future schools reorganisation proposals in Wales, highlighted by Welsh Government’s intervention in the proceedings. Welsh Government agreed with the council’s interpretation in respect of the issue on which it intervened. In conjunction with the legal advice it had received this was a key reason why the council sought to appeal that decision and obtain clarity on those matters.

“It is pleasing that this judgment has highlighted that the decision-making processes of the council relating to this judicial review challenge were found to be in full compliance with the relevant legislation and statutory code of practice.”

Cllr Rosser added: “In respect of the decision to close Ysgol Heol-y-Celyn and YGG Pont Sion Norton, and building a new £10.7m Welsh medium school on the Heol-Y-Celyn site, the Court of Appeal found that the Council did have regard to ensuring that there were adequate Welsh medium primary education places in the area to meet anticipated demand, that existing pupils will be able to continue their education through the medium of Welsh and that the proposed new Welsh medium primary school will be accessible.”