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High Court quashes decision by Welsh council to combine three primary schools into one

The High Court has quashed a decision by Neath Port Talbot County Borough Council to combine three primary schools into a new one, after the local authority failed to obtain a Welsh Language Impact Assessment while the proposals were at a formative stage.

Mr Justice Kerr said in Rhieni Dros Addysg Gymraeg (Parents for Welsh-Medium Education), R (On the Application Of) v Neath Port Talbot County Borough Council [2022] EWHC 2674 (Admin) the public would not understand if he simply left the decision to be reviewed by the council rather than actively quash it.

Rhieni Dros Addysg Gymraeg (Parents for Welsh-Medium Education) brought the case over whether the council lawfully decided in October 2021 to close three English-medium primary schools in the Pontardawe area and establish a new one at Parc Ynysderw, without including in the prior consultation exercise an assessment of the impact on the Welsh language.

Although the schools concerned were all English speaking, the parents group was concerned that a large new school might attract pupils at present educated in Welsh.

Kerr J noted that a change last year in political control from Labour to no overall control meant it was no longer clear whether the council will implement the decision even if it succeeded in defending the claim.

The three schools have a combined attendance of 548 full time pupils and 102 part time ones in nurseries. The new school would take 630 and 140 pupils respectively and cost some £22.7m.

When the claim was filed the council resisted it on the ground that only English medium schools were affected and said the section of the school organisation code relied on by the parents about impacts on Welsh teaching related to Welsh medium schools only and so did not apply.

Neath Port Talbot further contended that the processes had been lawfully undertaken; there was no impropriety in the process and no obligation to reopen consultation.

The first ground argued by the parents group was that the council had failed to include a Welsh language impact assessment within the consultation document.

They said this was wrong in law because either there was a misinterpretation of paragraph 3.4 of the Code; or there was a failure to consider whether any Welsh-medium school was ‘affected’ by the proposals; or it was irrational not to commission a language assessment while accepting in the consultation document that the proposals could have an impact on opportunities to use the Welsh language.

Kerr J said: “I conclude that the council misdirected itself in law in interpreting and applying paragraph 3.4 of the Code.

“On its own findings in October 2020, a [Welsh language assessment] was mandatory. The council believed otherwise at the time because it thought paragraph 3.4 did not apply at all. The result was that the [assessment] was not obtained until after the proposals had ceased to be at a formative stage. The first ground of challenge therefore succeeds.”

The parents lost on another ground that the council failed to consult further after receipt from the Welsh Government of a report it commissioned on the impact of the proposals on the Welsh language

Kerr J said: “The Welsh Government report did not change the position. It came very late in the process, after the publication of statutory proposals. It was described at the time as a draft and was not obviously given to the council for public consumption.”

He added: “I do not accept the claimant's suggestion that the Welsh Government report so transformed the landscape that the previously undertaken consultation was wholly superseded and had to be replayed. The proposals remained exactly the same.”

Kerr J rejected an application by the council under the Senior Courts Act 1981, section 31(2A) that it was highly likely the outcome would not have been substantially different, had the conduct complained of not occurred.

He said: “I find it difficult to see how the council can say that it is highly likely the outcome would have been the same had the conduct complained of not occurred, when the council admits that it does not itself know what the final outcome of the exercise will turn out to be."

Neath Port Talbot argued that a declaration that it erred by not including a Welsh language assessment in the consultation would suffice and a quashing order was not needed because the declaration would state that a fresh process would be needed before the proposals could be implemented.

Kerr J concluded: “In the current state of uncertainty surrounding the possible review of the cabinet's decision, the more legal certainty there is about the status of that decision, the better.

“Non-lawyers and the public could be confused by the notion that the decision subject to review, while made in error, has not been expressly overturned by the court.”

Mark Smulian