R & Ors, R (on the application of) v Leeds City Council (Education Leeds) [2005] EWHC 2495 (Admin)

Case No CO/2004/2005[2005] EWHC 2495 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 11 November 2005
Before
MR JUSTICE WILKIE
Between
THE QUEEN ON THE APPLICATION OF R and OthersClaimantLEEDS CITY COUNCIL/EDUCATION LEEDSDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Simon MYERSON QC and Elizabeth DARLINGTON (instructed by Godloves Solicitors) for ClaimantThomas LINDEN (instructed by Legal Services Leeds City Council) for Defendant
Judgement
[1]This is an application for judicial review by nine claimants, each suing through their respective litigation friends, of decisions taken by the defendant on 29 September 2004 and confirmed on 4 January 2005. The decisions were to decline to provide free school transport for each of the claimants for the purpose of facilitating the attendance of the claimants at their present schools. The claimants each live within the area of Leeds City Council. They presently attend schools in Manchester including the King David High School, a school within the maintained sector, and the Manchester Jewish Grammar School a school whose status is in dispute between the parties but upon which I do not have to make any finding .[2]The arrangements presently being made by the parents of the claimants for their transport to and from school constitute the private hiring of a mini bus. The annual cost is said to be £20,500, but is said by one of the litigation friends, Stanley Morris, in his evidence, to be estimated for the next educational year at £54,000.[3]The grounds given by the defendant for its decision are stated in its letter of 29 September 2004 to be as follows:
“Having given consideration to the matter, however, education Leeds does not consider that it is appropriate to provide free school transport given the distances involved, the cost and that there are alternatives in Allerton High School, which offers Hebrew studies adapted to the demands of the jewish community, and all Leeds High Schools which offer the national curriculum.”
This decision was taken purportedly pursuant to section 509 of the Education Act 1996. The claimants say that this decision is unlawful as being “Wednesbury unreasonable” and, furthermore, is contrary to Articles 8, 9 and 14 of the European Convention on Human Rights and Article 2 of protocol 1 to that convention. It is also said to be contrary to section 17 of the Race Relations Act 1976 alternatively section 18 of that Act.[4]The claimants and their families are each members of the Jewish community living in Leeds. Their parents wish them to attend a school in which the religious education provided is that of the Jewish religion to which they adhere. Their parents wish them to attend such a school for reasons which are set out in summary in paragraphs 13.1 to 13.3 of the Claimants’ skeleton argument, which summarises their evidence in this respect. In particular the witness statement of Yehuda Refson the Av Beth Din of Leeds, who has made a witness statement on behalf of the claimants says, amongst other things, as follows:
“I am a Dayan that is the title given to a Rabbi who is also a recognised authority on the interpretation of Jewish law (Halacha) and who acts as a judge rather than primarily as a minister. In my role as Dayan I am the Av Beth Din (father of the Beth Din) of Leeds. In other words I am the senior judge in matters that come before the Leeds Beth Din and I am the decisor of Halachic matters which affect the entire community. I am not attached to a specific synagogue – my responsibility is for the orthodox community of Leeds. In communal matters there is a consensus that my ruling will be abided by… I cannot rule, as a matter of Jewish law, that these children should attend a Jewish school in Manchester. Nevertheless, when I am asked for my advice I take the view that, if it is possible for the parent concerned to send their child to an orthodox Jewish school, then they should do so. I want to explain why that is in detail, but the answer is threefold. Firstly ensuring that one’s children remain within the faith and committed to it is a basic religious obligation. Secondly committed practising Jews tend top be good citizens. Thirdly the first two propositions are best served by a Jewish education… ”
In communal matters there is a consensus that my ruling will be abided by…

In succeeding paragraphs he explains these matters in some detail. He then goes on:

“10. This is a significant issue for the Jewish community in Leeds. There is no Jewish high school in Leeds provided by the city council, as there is in Manchester, so that state education has to be secular from age 11 if the child stays in Leeds. A number of years ago Education Leeds promised a Jewish studies centre at Allerton High School, the local state school that most children of the community attend. In due course that centre became a multi cultural centre. Consequently those parents most committed to the idea of Jewish education have for some years been arranging the transport of their children to Manchester at their own expense. It is important to stress that this is by no means the most desirable option, because the school day is very much lengthened. Over the last 5 years or so a number of families have moved from Leeds to Manchester simply to avoid being in the position of these parents. I know that the parents who have opted for Manchester have done so after only the most careful consideration and discussion. I know that some of them of modest means find the financial commitment extremely difficult and that it represents a considerable sacrifice…. 13. I stress again that I would not impose upon the parents (all of whose statements I have read) a religious requirement to educate their children at a Jewish school. But I would certainly advise it, if everything else were in place. It is, in my opinion, in the best interests of the community I serve and of the individuals who consult me. It is education in conformance of the laws of the land and with religious obligation. It is also, I agree, in the best interests of the children.”
[5]As of January 2005 Leeds City Council was responsible for the education of 55,880 pupils aged 4 – 11 who attend mainstream primary schools within Leeds and 42,492 aged 11 – 16 who attend mainstream secondary schools in Leeds. These figures include pupils resident outside the Leeds administrative area boundary who attend schools in Leeds, but do not include children who are resident within Leeds yet attend schools in neighbouring local educational authorities.[6]At present there are 230 mainstream state primary schools within Leeds of which 29 are Catholic voluntary aided, 19 are Church of England voluntary aided and 1 is Jewish voluntary aided. There are no other primary faith schools in the maintained sector in Leeds. In the academic year 2004 to 2005 Education Leeds provided free home to school transport to 153 mainstream primary aged pupils permanently resident within the Leeds administrative boundary. Of these, 125 were attending church schools. Free transport was provided to only 2 pupils attending a school outside the administrative area, to a catholic school in Ilkley which the Catholic Diocese had designated as the nearest catholic school to where children live. This school is 4.7 miles from the Leeds city border.[7]There are 42 state funded mainstream secondary schools within the Leeds administrative area. These include 2 Church of England voluntary aided schools and 5 voluntary aided Catholic schools. Certain districts are closer to schools that lie within the jurisdiction of the neighbouring authorities of North Yorkshire, Kirklees Bradford and Wakefield. In the academic year 2004 to 2005, Education Leeds provided free home to school transport to 3600 mainstream secondary pupils aged 11 – 16 who were permanently resident within the Leeds administrative boundary. Of these 2,182 pupils attended either a Catholic or a Church of England school, with 541 of this number attending schools outside the Leeds boundary. These children attend schools that have been identified by the relevant diocesan authorities as being the nearest designated religious school for certain areas of the city.[8]The Defendant has a policy for the provision of home to school transport. The overriding principle is set out in the fourth introductory paragraph to the policy which states:
“In accordance with the views expressed by the Secretary of State, the LEA will continue to consider the particular circumstances of each pupil, even if they fall outside the authorities policy.”
[9]Section 1 of the policy is headed “Free Transport for Pupils of Compulsory School Age”. It provides as follows: “1.1. Free transport will be provided for:(a) pupils under the age of 8 who travel 2 miles or more to the nearest school measured by the nearest available walking route…(b) pupils aged between 8 and 16 years (or pupils up to year 11) who travel 3 miles or more to their nearest school by the nearest available walking route…(c) in cases where parents choose a Leeds Community or voluntary controlled school other than the nearest one, free transport for pupils who travel more than the statutory distance will only be provided if: (i) attendance at the nearest school would entitle the pupil to free travel or (ii) the pupil is offered a place at a school in accordance with parental preference and where the authority is unable to offer an alternative school within the statutory distance. or (iii) the pupil is offered a place at a school which is more than the statutory distance in situations where parental choice cannot be met or is unspecified.(d) Pupils attending Leeds voluntary aided schools will be entitled to free transport only if: (i) First preference was for the denominational school (ii) The parent carer can produce written confirmation from the appropriate minister, vicar priest that the child is baptised into the faith that the school embraces and that they are regular church attenders and (iii) In the case of Church of England schools, pupils attend the nearest Church of England school appropriate for their age group and they travel more than the statutory distance or (iv) In the case of Catholic schools pupils attend the catchment school designated by the dioceses and travel more than the statutory distance. Or the school is outside the Leeds area but is designated by the relevant diocese as being the nearest appropriate school and the pupil travels more than the statutory distance”. (i) First preference was for the denominational school (ii) The parent carer can produce written confirmation from the appropriate minister, vicar priest that the child is baptised into the faith that the school embraces and that they are regular church attenders and (iii) In the case of Church of England schools, pupils attend the nearest Church of England school appropriate for their age group and they travel more than the statutory distance or (iv) In the case of Catholic schools pupils attend the catchment school designated by the dioceses and travel more than the statutory distance. Or the school is outside the Leeds area but is designated by the relevant diocese as being the nearest appropriate school and the pupil travels more than the statutory distance”.[10]Assistance pursuant to the policy is granted to some pupils who attend specified church schools outside the Leeds border. For certain children, a school outside Leeds will be their nearest Church of England or Catholic secondary school. In this category, assistance with travel is only provided to those pupils who attend the school designated by the relevant diocesan authority as being the nearest appropriate school. There are 6 such designated schools located in Harrogate, Dewsbury, Wakefield and Bradford. These are at distances between 3.4 and 5.9 miles outside the Leeds city border. The distance from the relevant area of Leeds to the schools in Manchester is 45 miles each way.[11]The Defendants’ evidence is that the distances involved in travelling from Leeds were a material factor for the authority in framing its current home to school transport criteria in the policy. The policy was amended in September 1999 to limit the provision of free school transport to Leeds community or voluntary controlled schools. It achieved this by the addition of these qualifying words to the previous text of paragraphs 1.1.c and 1.1.d of the policy. It is clear from the report which recommended these changes that distance was a factor, though so too was a concern to respond to worries expressed by local Head teachers by limiting the extent to which children from Leeds attended non Leeds schools by more closely controlling the policy for the provision of free school transport to schools outside Leeds. The policy was further amended in October 2003 to tighten up the provision of free school transport to denominational schools to those where the parents were able to provide evidence of a genuine religious conviction. This was achieved by the addition of what is now paragraphs 1.1.d(i) and (ii). This had nothing to do with the distances being travelled but was prompted by seeking a clarification to the policy to ensure that only genuine cases of religious preference fell within the policy. Under the policy, each of the schools designated by the diocesan authorities is within the area for which the West Yorkshire Passenger Transport Executive operates.[12]The arrangements by which the defendant provides school transport comprise an education transport agency agreement between the defendant and Metro which is the operating arm of the West Yorkshire Passenger Transport Authority, which is a consortium of local authority elected members drawn from the five constituent District Councils in West Yorkshire (Bradford, Calderdale, Kirklees, Leeds and Wakefield) . The West Yorkshire Passenger Transport Executive came into existence in 1976 to coordinate the provision of transport services within the county. The agency agreement itself was recommended by the Audit Commission in 1986 as part of its recommendation of collaboration between LEAs and PTEs to secure effective transport services in metropolitan areas. The agency agreement provides for a cost sharing arrangement where home to school transport costs are apportioned on a 65% LEA 35% Metro basis. The mechanics of the operation of the scheme are that pupils who travel on existing scheduled bus services operated by or on behalf of Metro are issued with bus passes known as school cards which are accepted by West Yorkshire passenger transport operators in lieu of cash fares. The operators are compensated by Metro for the loss of revenue each card issued having a notional money value of £363. Education Leeds is responsible for £198.19 of the cost of each card. Where Metro does not itself operate a bus service but transport to and from the school is achieved by the provision of a special school service through a contractor, boarding cards are issued to pupils which confirm to the driver the pupil’s eligibility to travel on that special service. The monetary value of these cards is based upon the contract cost of providing the specific service divided by the number of pupils on board. By way of example, in the case of services provided to Harrogate schools this cost equates to an average of £411 per pupil per year of which the defendant is responsible for £267.15.[13]Metro has sought quotes from approved providers on behalf of the defendant for a return school day service to be provided between Alwoodley (where the majority of the claimants reside) and King David School Manchester. The best priced quote received for a 16 seater mini bus was £160 per day of operation equating to £30,400 per academic year. In terms of cost per seat this is £1,900 per year assuming all places would be taken up. The cheapest quote received for a 49 seater coach was £51,300 and if similar numbers of pupils continued to travel the cost in this case per pupil would be £3206.25p. It is presently the case that the number of children who are travelling from Leeds to Manchester is 33. If the quoted price were applied to this number of children the per capita annual cost would be £1,554. Thus, the per capita cost of providing the free transport sought by the claimants is many times higher than the per capita cost of the current free transport arrangements.[14]In global terms, the free school transport budget of the Defendant is £3.373 million odd for school transport at secondary school level to mainstream schools. This figure includes the costs associated with providing specialised transport for the conveyance of pupils with special educational needs to attend mainstream school and constitutes some £2.3 million of this expenditure. Thus it is said by the Defendant that the cost of providing transport for children not having special educational needs is just under £1m. There has been a dispute over the precise meaning of the evidence adduced by the Defendant in respect of the annual per capita cost of the existing arrangements. The evidence of Ms. Cook is that there are 3,600 pupils on whom the sum of just under £1m is being spent. This is made up of the two categories of school cards and boarding cards referred to above. Of these in the relevant school year 2,065 children had school cards and, I accept, the balance of just under 1,600 had boarding cards. I accept the evidence of Ms Cook and Mr Hudson, which, when taken together results, in a broad brush conclusion that the average per capita annual cost to the defendant of providing free school transport is of the order of £270. Thus, I accept that the average per capita cost of the free transport provision the claimants argue for is some 5 times that of the present average.

The Statutory Scheme

[15]Section 509(1) of the Education Act 1996 imposes a duty on the defendant to make “such arrangements for the provision of transport and otherwise as it considers necessary…for the purpose of facilitating the attendance of persons…receiving education…(a) at schools” Section 509(4) provides as follows:
“In considering whether or not they are required by sub-section (1)…to make arrangements in relation to a particular person, a local education authority shall have regard (amongst other things) – (a) to the age of the person and the nature of the route or alternative routes, which he could reasonably be expected to take; and (b) to any wish of his parent for him to be provided with education at a school or institution in which the religious education or training provided is that of the religion or denomination to which his parent adheres.”
[16]Section 444 of the Education Act 1996 provides for the offence of failing to secure regular attendance at school of a registered pupil. Sub-section 4 of this section provides a statutory defence to the charge. It provides as follows:
“The child shall not be taken to have failed to attend regularly at the school if the parent proves – a. that the school at which the child is a registered pupil is not within walking distance of the child’s home, and b. that no suitable arrangements have been made by the local education authority…for any of the following – i. his transport to and from the school…” a. that the school at which the child is a registered pupil is not within walking distance of the child’s home, and b. that no suitable arrangements have been made by the local education authority…for any of the following – i. his transport to and from the school…”
Sub-section 5 provides as follows: 19. “In sub-section 4 walking distance a. in relation to a child who is under the age of 8 means 3.218688 kilometres (2 miles), and b. in relation to a child who has attained the age of 8, means 4.828032 kilometres (3 miles), in each case measured by the nearest available route” Section 444 is the corollary of section 7 of the Education Act 1996 which provides as 20. follows:
“The parent of every child of compulsory school age shall cause him to receive efficient full time education suitable – a. to his age ability and aptitude, and b. to any special educational needs he may have, either by regular attendance at school or otherwise.”
[17]I have been referred to the decision of the Queens Bench Division in the case of R(Jones) v Ceredigon County Council (2004) EWHC 1376 (Admin) reported at [2004] ELR 506. The effect of that decision is that, by virtue of a combination of sections 7, 444(4) and 509(1) the LEA cannot properly refuse to provide free transport for a child whose journey is greater than the statutory distance on the basis that there is a nearer school within the statutory distance that the child could attend unless that school is “suitable”. However, the LEA’s conclusion in relation to suitability may only be challenged on grounds of irrationality. The LEA is the arbiter of this issue subject only to a Wednesbury challenge. (At paragraph 18). In so concluding the Divisional Court was following the decision of the Court of Appeal in R v Vale of Glamorgan County Council ex parte A (2001ELR 223). In that case in paragraph 2 of the leading judgment

Lord Justice Schieman said as follows:

“An LEA is obliged to provide free transport to and from the school which the pupil is attending if it is not within walking distance from his home unless it has lawfully arrived at the view that the child could attend a suitable school which is within walking distance…”
[18]The question of the proper approach to determining whether an alternative school nearer the child’s home is suitable was considered by the Queens Bench Division in R v Dyfed County Council ex parte S 1994 ELR 320. Mr

Justice May (as he then was) in his judgment at page 326B said as follows:

“In my judgment such relevant factors may include: a. the reasons underlying parental preference, which are important but not determative; b. the inherent suitability of the preferred school; c. the inherent suitability of the alternative school; d. financial considerations including the avoidance of unreasonable public expenditure; and e. such policy considerations as have lawfully been adopted by the education authority and bear upon the question. Taking such factors into account, a decision has to be made whether the alternative school is suitable for the particular pupil. This naturally means that, just as parental preference is not automatically by itself determative, so neither will other factors such as financial considerations or matters of policy by themselves determine the answer.”
The Court of Appeal expressly adopted his approach to the facts of the matter ([1995] ELR 98 at page 105B).[19]It is common ground that the essence of the decision of the Defendant was taken on the following grounds as are articulated in the letter of 29 September:
“Education Leeds does not consider that it is appropriate to provide free school transport given the distances involved, the cost and that there are alternatives in Allerton High School which offers Hebrew studies adapted to the demands of the Jewish community, and all Leeds High Schools which offer the national curriculum.”
[20]The Claimant says that the decision is Wednesbury unreasonable on a number of bases.[21]First it is said that there is a different, and discriminatory, approach as between Christian and Jewish children. As far as Christian pupils are concerned, the Defendant, it is said, does not decide that Christian pupils may not receive free transport to Christian schools because there are suitable non Christian faith schools in Leeds. On the contrary, the Defendant consults local diocesan authorities and allows them to specify the nearest appropriate school for Christian pupils. By way of contrast, the Defendant asserts that Jewish pupils may not have free transport to enable them to attend Jewish schools because, it asserts, there are suitable non faith schools in Leeds. There has been no process of consultation with religious leaders as to the nearest appropriate school for Jewish pupils, which are in Manchester. It is put in oral argument in a slightly different way, namely that it is said that the Defendant has unlawfully introduced a new element to add to the policy, namely by adding a condition that the nearest appropriate school be within the area covered by the WYPTE. It is said that this is indirect discrimination in that a significantly smaller proportion of Jewish than Christian children can satisfy it.[22]Second, it is said that the Defendant has not had regard to the Claimants’ parents wishes in respect of education in accordance with their religion. Rather it has simply noted the fact of that preference but has weighed it against the expense of the proposed free transport and, by so doing, has imported a consideration excluded by the Act and given it priority over a consideration enjoined upon the defendant by the Act.[23]Third, it is said that, whilst the expense of funding the Claimants’ travel is something to which the Defendant may have regard, it must have regard to the wishes of the parents. Whilst accepting that expense is a relevant matter, the Defendant, it is said, has acted irrationally by approaching the exercise on a per capita basis and has further erred in asserting that the per capita expense of providing free school transport to schools in Manchester is many times that of providing free school transport to Christian pupils. By so doing it has failed to give any, or any adequate, weight to the important reasons articulated in the evidence which was before the Defendant when, in January 2005, it confirmed its decision of 29 September, that education in a Jewish school is of high significance.[24]Fourth, the numbers of children who are ever likely to wish to seek this free transport to Manchester is to be measured in the tens and, accordingly, it is said that the cost, though per capita many times that in respect of other children, is, if viewed globally, de minimis when set against overall budget.[25]Fifth the assertion that there are suitable schools available is unlawful because the Defendant has never informed itself of the particular requirements of the children concerned so as to be able to make the judgment that any of the Leeds Secondary schools which offer the national curriculum are suitable.[26]The Defendant says that the decision taken by the Defendant cannot be characterised as Wednesbury unreasonable. It had regard to matters to which it was entitled to have regard, namely an assessment of the suitability of local schools and the use of limited resources. The matter has always been approached on a class action basis without consideration to any particular requirement of any particular child. Thus, the characterisation of any Secondary school which offered the national curriculum as suitable was a decision the Defendant was entitled to take. Parental preference is not a trump card, it is a factor which is required to be taken into consideration and, the Defendant says, was. The evidence of Rabbi Refson, in particular, does not suggest that it is a requirement of Jewish law that the Claimants attend a Jewish school, rather that it is desirable to do. The judgment that Allerton High School, which offers Hebrew studies in years 7 and 8 and “some Jewish assemblies” and Hebrew as a modern language, and the other Leeds Secondary Schools which offer the national curriculum provide a suitable alternative education is one to which the Defendant was entitled to come.[27]It is said that the Defendant acted rationally in judging the cost on a per capita basis. This was essentially a matter for the Defendant and it could not be said to be irrational to take the view that there should be a fair and consistent approach to expenditure on school transport and that fairness and consistency should be assessed by reference to expenditure per child. The Claimants, it is said, are wrong to take issue with the way in which the per capita calculation has been carried out and with the conclusion that the per capita cost of giving effect to the Claimants’ request would be many times that of the present level of per capita expenditure Thus, it is contended, it cannot be said that the Defendant acted irrationally in taking the view that, on the information available, it would be disproportionately expensive to transport children to schools in Manchester given the availability of suitable schools in Leeds.[28]The Defendant contends that the attack, based on an allegation of indirect discrimination on the way in which the Defendant deals with Church of England and Roman Catholic faith schools as opposed to this application on behalf of Jewish children, is misconceived. The Defendant says that this attack is based on a false premise namely, that the Claimants are in a comparable position to the children who attend Church of England and Catholic voluntary aided schools. The parents of such Christian children do not have complete freedom to nominate any school of their choice. They may only attend the school which is the nearest designated one, and to the extent that this is outside the area of the Defendant, this is now limited to a specific small number of schools located a very small distance outside the boundary. The Defendant’s position is that, were there to be a Jewish secondary school within the city boundary or within a comparable distance outside the boundary, then in all likelihood free transport would be provided having had regard to the matters set out in 509(4).[29]I accept the submissions made on behalf of the Defendant which I have summarised above. There is, in my judgment, no true comparison between, on the one hand, a circumstance in which, within the boundary of the LEA or just outside it, there are voluntary aided schools of Christian denominations so that free school transport may be provided within the existing policy pursuant to the existing arrangements for designated schools which fall just outside the LEA boundary and, on the other, the situation in which there is presently no voluntary aided Jewish school either within the boundaries of the LEA or anywhere near the boundaries of the LEA but where the nearest such school is 45 miles away in a different city on the other side of the Pennines and where the cost per capita of providing free school transport would be many times that of the cost per capita of providing free school transport under the present policy. I reject the contention that the defendant has failed to have regard to the matters to which it is obliged to have regard under section 509(4). I conclude that the Defendant was entitled to decide that the Leeds High schools offering the national curriculum were suitable alternative schools so that it was not necessary to provide free school transport to facilitate the attendance of persons receiving education at schools in Manchester. This decision was, in my judgement, neither irrational, nor Wednesbury unreasonable, nor manifests a failure to take into account irrelevant matters or a taking into account of irrelevant matters.[30]I have concluded that the Defendant, in its letter of the 29 September did address each of the factors identified by May J in S. Mr Myerson QC, in argument, acknowledged that this appeared to be so. He contended, however, that their approach was a tick box approach and did not evidence proper consideration of these matters. He criticised the absence of an internal memos or minutes of meetings to support the conclusions set out in the letter. I reject that contention. The letter itself does, in my judgment, go beyond a formal exercise in ticking boxes. It reveals proper consideration of the relevant matters and a decision to which the Defendant could properly come.[31]Thus, in my judgment, the challenge on Wednesbury grounds, which was the main basis of the application argued for in the oral hearing, fails. I now turn to the alternative grounds which were not specifically argued at the hearing but which nonetheless remain part of this challenge.

Article 8

[32]Article 8 of the ECHR provides:(1) everyone has the right to respect of his private and family life, his home and his correspondence(2) there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.[33]The Claimant contends that the Defendant, by saying that it chooses not to provide free transport because it does not think free transport necessary has, in reaching this decision, a duty to respect the Claimants’ private and family life and that the Defendant’s decision not to provide free school transport is contrary to Article 8.[34]In support of this contention it is said that the notion of “private life” is a broad one and not susceptible to exhaustive definition. It is submitted that it includes the right to live ones personal life as one chooses, without interference from the state. This includes the right to lead ones life in accordance with one’s religious beliefs. It is said that the refusal of the Defendant to provide funding for transport to schools in Manchester significantly interferes with the Claimants’ right to attend those schools. Many of the parents are struggling to continue to provide the necessary funding and there is a significant likelihood that they will be unable to continue to do so. Such an interference with the Claimants’ ability to live their lives in accordance with their religious principles, it is said, cannot be justified by reference to any of the interests provided for in Article 8(2). Further, if they are right about the unlawfulness of the decision under section 509 as being Wednesbury unreasonable, then it is not a decision which has been taken in accordance with law.[35]The Defendant contends that Article 8 is neither engaged nor infringed in the present case. The Claimants are attending the school of their choice the only issue is as to who should fund their transport.[36]In my judgment the Defendant is correct in this contention. The decision in respect of the school transport does not engage Article 8 at all.

Article 9

[37]Article 9 provides:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom …to manifest his religion or belief in worship, teaching, practice and observance. 2. Freedom to manifest ones religion or belief shall be subject any to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
[38]The Claimant says that the decision of the Defendant not to provide funding directly interferes with the Claimants freedom to manifest their religion. The right to attend a Jewish school is a manifestation of religion. The Claimants seek to argue that this right is analogous to the right to eat kosher food as a manifestation of religion (see DS and ES v UK (1990) 65 DR 245). Reliance is placed on the evidence that many of the parents of the claimants are struggling to provide the necessary funding and there is a significant likelihood that they will be unable to do so. If it is an interference with Article 9 rights, the claimants say that it cannot in this case be restricted by reference to any of the interests identified in Article 9(2).[39]The Defendant says that the critical point is that Article 9 protects the right to freedom of thought, conscience and religion. The Claimants are not being prevented or prohibited from attending Jewish schools. They are exercising their freedom to hold and manifest their religious convictions. Article 9 is therefore neither engaged nor infringed. The defendant relies on a passage in the ECHR decision in Leyla Sahin v Turkey (application 44774/98) as follows: “ Article 9 does not protect every act motivated or inspired by a religion or belief and does not in all cases guarantee the right to behave in the public sphere in a way which is dictated by a belief ” (paragraph 66). The Defendant relies on the evidence that, whilst attendance at a religious school is desirable, it is not an article of faith or required by Jewish law.[40]Further, the Defendant says that the ECHR requires that any alleged infringement of religious freedoms must be material. There must be a substantial infringement of the individual’s freedom of religion before Article 9(1) is engaged. Such an infringement is not established where the actions of the Defendant merely render the manifestation of religious belief less easy or convenient. The Defendant relies on the analysis in the Court of Appeal in R(Williamson) v Secretary of State for Education and Employment [2003] QB 1300 CA and [2005] 2AC 46HL. In particular, they rely on the following passage from the judgment of

Lord Justice Buxton:

“When faced with a claim asserting interference with the practice or manifestation of a religious belief, the court must look carefully at the terms and nature of that belief, in order to see whether it could be properly and effectively exercised by the claimant in some manner that would not conflict with national law.”
In the present case the Defendant contends that the facts do not even establish that the Claimants have been prevented from manifesting their religious beliefs. The position is that the Claimants are attending the relevant schools notwithstanding the Defendant’s decision to refuse funding for transport. Accordingly, it is contended by the Defendant there has been no material infringement of their freedom to manifest their religious beliefs.[41]In my judgment the Defendant’s contention is right. The Article 9 right of the Claimants have not been infringed.

Article 2 of Protocol 1

[42]This Article enshrines the right to education. It provides:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical aims.”
[43]The United Kingdom has entered a reservation in respect of this Article in the following terms:
“…in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only insofar as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.”
[44]In respect of this Article the Claimants seek to rely on their contention already referred to that the amount of expenditure involved is de minimis when compared with the Defendants’ total secondary school transport budget. It is contended by the Claimants, therefore, that it cannot be said that this represents unreasonable public expenditure.[45]The Defendant contends that this Article is neither engaged nor infringed. It contends that the provision is concerned with access to the educational institutions which the state makes available and places no greater obligation on the state than to acknowledge or take into account religious convictions. In the present case there is no suggestion that the Defendant has sought to deny the Claimants access to any of the educational institutions which are within its control. Nor has it failed to respect the right of the Claimants’ parents to ensure such education and teaching in conformity with their religious convictions. The right has been taken into account by the Defendant and the parents of the Claimants have exercised it in that they have sent their children to Jewish schools in Manchester. In my judgment the Defendant’s contention is correct. This Article is not engaged, but even if it were, for the reasons already set out in respect of the Wednesbury challenge, the decision in question falls within the terms of the explicit reservation entered by the UK to this particular Article and so the Claimant has no claim in this respect.

Article 14

[46]Article 14 provides:
“The enjoyment of the rights of freedom set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origins, association with a national minority, property, birth or other status.”
[47]The Claimant says that as the facts of this claim fall within the ambit of Articles8, 9 and Article 2 of Protocol 1 it is contended that Article 14 is engaged. In my judgment, for the reasons set out above, none of these provisions are engaged and accordingly Article 14 is not engaged either. Race Relations Act 1976 Section 17 and/or 18 as amended.[48]The Defendant contends that these various claims are misconceived. Such claims must be issued in the County Court pursuant to sections 53 and 57 of the 1976 Race Relations Act. Thus the Administrative Court does not have jurisdiction to hear such claims. In my judgment this is correct and, accordingly, this court does not have jurisdiction in respect of these claims.[49]In any event as far as Section 17 is concerned it prohibits racial discrimination by an LEA in relation to educational establishments over which it has control. There is no question of any refusal on the part of the Defendant to allow the Claimants to attend one of its schools. Nor has the Defendant discriminated against the Claimants in the terms on which it offered to admit them to one of its schools. Accordingly the Defendant contends that Section 17 does not apply. In my judgment that is a correct analysis. The decision about which the Claimants complain cannot in any view fall within Section 17 of the 1976 Act.[50]Accordingly, it follows that, for the reasons set out above the Claimants’ claim, on each of the bases upon which it has been argued whether on paper or orally at the hearing fails and this application for judicial review must be dismissed.

Cited in 2 later judgments