“A maintained school may be discontinued only in accordance with this Part.”
“A local authority may make proposals to discontinue—(a) a community … school.”
“(1) A proposer must publish proposals made under this Chapter in accordance with the Code. (2) Before publishing proposals made under this Chapter, a proposer must consult on its proposals in accordance with the Code. (5) The proposer must publish a report on the consultation it has carried out in accordance with the Code.” 8. Section 49 provides in part: “(1) Any person may object to proposals published under section 48. (2) Objections must be sent in writing to the proposer before the end of 28 days beginning with the day on which the proposals were published (‘the objection period’). (3) The proposer must publish a summary of all objections made in accordance with subsection (2) (and not withdrawn) and its response to those objections— (a) in the case of a local authority that is required to determine its own proposals under section 53, before the end of 7 days beginning with the day of its determination under section 53(1) …” (a) in the case of a local authority that is required to determine its own proposals under section 53, before the end of 7 days beginning with the day of its determination under section 53(1) …”
“Where any proposals published under section 48 do not require approval under section 50 [i.e. by Welsh Ministers] or 51 [i.e. by the local authority, where it is not itself the proposer], the proposer must determine whether the proposals should be implemented.”
“(1) The Welsh Ministers must issue, and may from time to time revise, a code on school organisation (‘the Code’). (2) The Code is to contain provision about the exercise of the functions of the following persons under this Part— … (b) local authorities; … (3) The Code may impose requirements, and may include guidelines setting out aims, objectives and other matters. (4) The persons referred to in subsection (2) must, when exercising functions under this Part— (a) act in accordance with any relevant requirements contained in the Code, and (b) have regard to any relevant guidelines contained in it.” … (b) local authorities; … (a) act in accordance with any relevant requirements contained in the Code, and (b) have regard to any relevant guidelines contained in it.”
“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. Where practices are prohibited, it is stated that the relevant bodies must not use this practice. 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.”
“Once the proposer decides to proceed with a proposal they must publish the proposal by way of statutory notice. … Furthermore, on the day that they are published, the following must receive either a hard copy of the proposals or be emailed a link to the relevant website: … • Assembly Members (AMs) and Members of Parliament (MPs) representing the area served by/intended to be served by any school which is the subject of the proposals; …” … • Assembly Members (AMs) and Members of Parliament (MPs) representing the area served by/intended to be served by any school which is the subject of the proposals; …”
“The Welsh Government takes the view that the requirement for assessments should not be overly burdensome and does not consider that it is necessary to commission such work from external consultants. Local authorities are already under a duty to carry out equality impact assessments which could provide the basis for the impact assessments specified in this guidance. Community Impact Impact assessments should ideally be included in consultation documents.”
“It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.” 20. At [69] Lord Hope of Craighead agreed that those to whom the Code of Practice was addressed “must give cogent reasons if in any respect they decide not to follow it.”
“These reasons must be spelled out clearly, logically and convincingly. I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see fit.”
“Although the guidance is provided for by statute and housing authorities are obliged by s.182 of the 1996 Act to have regard to it, it is not a source of law. However Mr Luba cited in his skeleton (paragraph 22) the decision of Dyson J as he then was in R v North Derbyshire Health Authority ex p. Fisher (1997) 10 Admin LR 27 to support the proposition that an authority is not entitled to depart from guidance given in a circular issued by central government, to which it is obliged by statute to have regard, merely because it disagrees with it. But this case, I think, goes no further than to underline what is conventional law, namely that respondents to such a circular must (a) take it into account and (b) if they decide to depart from it, give clear reasons for doing so. If the decision is thought to support a proposition which would bind public bodies more tightly to a duty of obedience to guidance to which by statute they are obliged (no more, no less) to have regard, then I would respectfully question its correctness.”
“Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. … First, the requirement ‘is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested’ …. Second, it avoids ‘the sense of injustice which the person who is the subject of the decision will otherwise feel’ …. Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not ‘Yes or no, should we close this particular care home, this particular school etc?’ It was ‘Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?’” 24. Lord Wilson’s judgment also contains, at [25], endorsement at the highest level of the basic requirements of a proper and meaningful consultation, as set out by Hodgson J in R v Brent London Borough Council, ex p. Gunning(1985) 84 LGR 168 at 169: “First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.”
“36. This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another: “the nature and the object of consultation must be related to the circumstances which call for it” (Port Louis Corporation v Attorney-General of Mauritius[1965] AC 1111 , 1124). A mechanistic approach to the requirements of consultation should therefore be avoided.” 27. At [37] and [38] Lord Reed noted that the consultation in that case related to the local authority’s discharge of an important function in relation to local government finance, which affected its residents generally, and concluded that the purpose of the particular statutory duty was “to ensure public participation in the local authority’s decision-making process”
“39. In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know “what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response”: R v North and East Devon Health Authority, Ex p Coughlan[2001] QB 213 , para 112, per Lord Woolf MR. 40. That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected. The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions … To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal. The case of Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice[2011] EWHC 1532 (Admin) is an example of a case where such information was not considered necessary, having regard to the nature and purpose of that particular consultation exercise, which concerned the proposed closure of a specific court. In the present case, on the other hand, it is difficult to see how ordinary members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision-making process, unless they had an idea of how the loss of income by the local authority might otherwise be replaced or absorbed. 41. Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection. The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy. Nevertheless, enough must be said about realistic alternatives, and the reasons for the local authority’s preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought.”
“Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision.”
“Schools with a good learning environment, including high standards of buildings, make a positive impact on learning.” 34. Under the same heading, there were listed a number of goals or “outcomes”, including this: “All school buildings to be fit for purpose on the basis of target dates agreed with individual local authorities.”
“In this type of organisation, two or more schools may be closed and replaced by a single larger school. This may be located on a new site, or on one of the old sites with refurbished buildings. Such developments require statutory reorganisation proposals.”
“Deficiencies in the buildings remain—no additional investment is possible because there has been little saving.”
“There may be opposition to the formation of the Area school from parents and the local communities.”
“To achieve our vision of 21st century schools and achieve the best use of our resources, we need to modernise our school accommodation …”
“It has already been recognised by the Council that there is an urgent need to continue to modernise our school buildings and to take some important decisions about their future and the role they play in our local communities. To enable this to happen, there is a need to secure the necessary funding to ensure school buildings and grounds are safe, in good condition and fit for purpose in the 21st century. A failure to address the serious need to modernise our school buildings, remove surplus places and improve the general level of funding of our schools has been identified as one of the five major areas of risk facing the Council.”
“The Garw Valley was in 2006, and still is in 2014, considered to be a priority project and a number of issues were noted in 2006 that still exist today, namely overall conditions of the schools were considered poor with major defects and a large estimated spend was and still is required to address suitability and ‘fit for purpose’ considerations. Schools in the Garw Valley were considered to be priority status due to their age, condition, lack of DDA compliance, access to outdoor space and community use of the buildings, and the urgent need to move forward with school modernisation proposals for the Garw valley was driven by the Strategy, Principles, Policy and Planning Framework, identifying these as urgent, priority projects.”
“Further condition surveys in subsequent years place the current backlog at the value of£393,000 despite the council spending in the region of£71,801 on urgent repairs to the school.” 2) A Fire Risk Assessment in 2011 noted that risk reduction measures were considered essential. Ms McMillan states that a fire safety check the following year put the cost of risk reduction measures at£10,834 . 3) A disability access audit was carried out by council officers in 2012. It gave the School the lowest grading, Grade D, indicating that it was totally inaccessible to disabled pupils and visitors and could not be rendered compliant with the requirements of theDisability Discrimination Act 1996 without major expenditure, which was assessed at£54,500 . 4) The evidence of Ms McMillan is that the School currently has 69 pupils as against a capacity of 73 pupils; this represents a “surplus capacity” of 5.48%. She states: “Whilst on its own this is not a significant issue, there was nevertheless a target to reduce surplus places across the county borough. Surplus places in a school are in effect a tax on the other pupils within the education system and is (sic) not value for money. … [T]he Government’s expectation was to reduce excess capacity, and address the issue of small schools, to produce educational benefits and efficiency savings.”
“Having regard to the available sites for the location of a new build primary school, a number of school sites were immediately discounted as being unsuitable due to the size of the site or significant access issues. These sites were [all of the existing schools, except for Betws Primary School].”
“As part of Phase 3 of the programme, a high level ‘options appraisal’ exercise was undertaken in 2010, which reviewed the primary school provision in the Garw Valley Local Forum Area and explored options for the rationalisation of places. … The exercise, having investigated and subsequently discounted a number of unsuitable sites (due to size or significant access issues), identified two potentially suitable sites available for development of a new build primary school: land owned by [the defendant] at David Street, Blaengarw; Betws Primary School site. The exercise also identified a number of options in respect of Primary provision organisation in the Garw Valley worthy of further detailed investigation.” 46. Section 2.2 went on to describe the condition of each of the schools under consideration. Betws Primary School was “considered to be poor, graded C, (exhibiting major defects and/or not operating as intended), with an estimated£759k spend identified” and to have “reached the end of its financial economic lifespan”
“The school site is accessed out of hours only on an occasional basis, by Teachers/Parents/Friends of the school. The school provides a number of ‘Out of School Hours’ clubs for it’s (sic) pupils such as Computer Club, Environmental club and Music club.”
“Those [principles] which are particularly relevant in the context of this proposal concern the size of primary schools (to ensure that ‘all Bridgend’s primary schools are large enough to make the full range of necessary provision’) and value for money, efficiency and effectiveness (‘narrowing the gap between the most and the least expensive provision currently’).” 50. (This might be thought a loaded way of putting the matter. The two principles identified were those specifically thought to justify the proposal. That does not make them any more “relevant in the context of” the proposal than, for example, the value of “community focused schools”; it is simply that the latter principle did not clearly support the proposal.) Problems regarding the suitability, size, condition and accessibility of the School site were then summarised. The passage relating specifically to the School said: “[The School] has a capacity of 74 and the number on roll in September 2013 is 69 (4-11), which is projected to rise to 85 by 2021. The school cannot be expanded on the current site to meet the demand for school places in the area, as the site is not large enough. Also, the school is not suitable for delivery of today’s curriculum, has no playing fields, limited outdoor space, and is totally inaccessible to disabled pupils and visitors. The condition of the school is graded ‘Poor’ (exhibiting major defects and/or not operating as intended) with an estimated£390,000 backlog of repair and maintenance.” 51. The document said: “As an alternative to the proposal, the Council could elect to ‘do nothing’ and not amalgamate the two provisions. However, the advantages detailed in the ‘What are the advantages if the proposal goes ahead?’ section below would then clearly not be realised. Also, the issues with the current accommodation could not be addressed.” 52. The document set out a number of perceived advantages if the proposal were to go ahead. As regards educational standards and outcomes, it said: “When Betws Primary School was last inspected in July 2011, standards were judged as good; relative to other schools, standards in many areas remain below the average for the local authority (LA), consortium and Wales. The school predicts that outcomes for pupils will fall this year and the school describes its performance in a number of key areas as adequate. Tynyrheol Primary School was judged to be good overall in its last inspection in November 2010. Standards have improved and compare well with outcomes in similar schools. The reliability of performance data across a larger setting would be strengthened overall as a result of the new school. The key areas for improvement for both schools are similar as the socio-economic context is the same. Both schools have a similar focus on improving various aspects of literacy, numeracy and well-being, including attendance, which should be strengthened in a larger community setting.” 53. As regards finance, it was noted that the salary of one headteacher would be saved and that other savings might follow. General advantages flowing from the modernisation of the accommodation were noted. Under the heading, “What are the potential disadvantages if the proposal goes ahead?” the document said this: “Some parents may prefer to have their children educated at the existing school sites for various reasons. Children from Llangeinor would need to travel to the Betws site using the transport provided and this may increase their travel to school time. Children from Llangeinor would also not have the opportunity to walk or cycle to school. Some believe that a small school is better to meet the particular needs of their children and that a larger school will not offer the same level of personal attention. Parents have been used to dealing with two headteachers and this would obviously change if the proposal went ahead. A primary school is often viewed as being at the heart of the local community, especially where there are no other public buildings. The change to the social side of school life in Llangeinor could be seen as being detrimental to the community.” 54. Under the heading, “Impact Assessment: Community” the document said this: “The school would continue to operate on its current sites until such time as the new premises become ready for occupation on the Betws site in September 2016, so no immediate effect on the community is anticipated. Upon occupation of the new build school on the current Betws site in September 2016, the provision of modern and accessible community facilities will enhance provision in Betws. While the Richard Price Centre opposite Tynyrheol Primary School provides community facilities, there may be those in Llangeinor who believe that not having a school in the village will be a significant loss to the community. The consultation will allow interested parties to state what they see as the likely effects on the respective communities.”
“A critical factor in our campaign is for the discovery and publication of the facts. The consultation document presented to both Cabinet and stakeholders lacks accuracy, lacks transparency and does not provide the reader with the information that is required for true and considered consultation. … Subsequently it is impossible to understand why only the single option proposed for Tyn yr Heol Primary School (closing, merging and relocating in Bettws (sic)) has been presented and why refurbishment of the current site is not being considered. … No information has been provided to indicate that the child’s education or health will be improved. … Deliberate high cost of refurbishment, making it un-competitive with cost of new build.”
“Estyn will provide their opinion only on the overall merits of school organisation proposals.”
“Is the proposal likely to maintain or improve the standard of education provision in the area? The standard of education in both existing schools was identified as good in their last inspections. These inspections were in 2010 and 2011. However, the proposal does not have sufficient detail about current outcomes in either school and so Estyn is unable to come to a considered view as to whether the proposal is likely to maintain or improve the standard of provision in the proposed new school.” “Has the proposer … Managed any risks associated with the proposals? … The proposer believes that the Price Centre opposite Tynyrheol Primary School provides appropriate community facilities. The consultation will allow interested parties to state what they see as the likely effects of the school closure on the community. There is no evidence relating to this aspect in the current proposal that can be commented upon.” “[Has the proposer …] Considered suitable alternatives and given good reasons as to why these have been discounted? The local authority has only considered the alternative to ‘do nothing’. This has been discounted …” “Educational aspects of the proposal … The local authority has considered the impact of the proposal on the quality of outcomes, provision and leadership and management. They have also considered the effect of the proposals on the delivery and standards of the full curriculum at the Foundation Phase and at key stage two. However, the proposal does not analyse the schools’ current performance well enough. Also as there will be a substantial change to the leadership of the new school with the appointment of a new headteacher, Estyn is unable to validate the judgements in the proposal. … The local authority asserts that ‘this [change of management structure and provision of improved facilities] will result in the good standards currently achieved being raised even further as it is likely that the quality of teaching will improve through the sharing of good practice’. However, it is not possible to evaluate at this stage whether a new school and its governance will deliver this.” “This proposal involves the transfer of learners to alternative provision. The local authority has provided evidence that the alternative would appear to be able to deliver outcomes and offer provision at least equivalent to those currently available to those learners (including learners with SEN).”
“Q. This is one proposal. Are there any other options that might be considered? A. Before we reached this point we have considered a number of options. The process started a while ago. Betws as a primary school needs a new building as well as Tynyrheol and Cwm Garw. The work carried out shows there are only two sites in the Garw that will do the job of putting up a new primary school. One is in Blaengarw [i.e. in the north of the valley] and the only other site is this site and we can put two primary schools on the one site.” 45.3 In respect of the meeting at the School, the main concerns recorded in the consultation report were the move to a larger school, the impact of the closure of the School on the village community, and issues regarding travel and transport. The minutes of the meeting at the School contained the following passages. “Q. If you have£6m to build a super school, surely the repairs for the two schools would be cheaper? But Betws school caught on fire. This probably wouldn’t be happening if Betws hadn’t caught on fire. A. The fire did accelerate the process.” “Q. Our children are excelling, why should they go to other schools? … There won’t be anything to benefit us here. We will last until it [the school building] can last out. A. This school building isn’t going to last too much longer.” “A. What we are hearing will contribute to community impact assessment.”
“Q. If decided not to close the two schools will Betws still get the new school? A. Yes, it has to and the money is there. Q. Would the timescale still be the same? A. Yes. Q. On that scenario why don’t you just build a new school for Betws? A. I didn’t say when. The Strategic Outline Case has gone into Welsh Government and is based on the preferred option covering Tynyrheol catchment and YGG Cwm Garw coming on the same site.”
“Q. It says that the cost of the building repairs and maintenance is£390k . Where has that come from? Is there any evidence? A. There is. Reports are taken of school buildings.” 45.6 Section 6 of the consultation report dealt with Estyn’s response, which was exhibited as Appendix 10. The Report quoted the passage on educational standards, set out above, and provided the defendant’s response, as follows: “The proposal consultation document contained summaries of both schools most recent Estyn Report with links to the full inspection reports. An analysis of whether the proposal is likely to maintain or improve standards of provision and outcomes was provided by the Central South Regional Education Consortia and included in the consultation document on page 4 (‘Quality and standards in Education’). The Consortia expressed their view that, ‘The reliability of performance data across a larger setting would be strengthened overall as a result of the new school. The key areas for improvement for both schools are similar as the socio-economic context is the same. Both schools have a similar focus on improving various aspects of literacy, numeracy and well-being, including attendance, which should be strengthened in a larger community setting.’”
“There has not been a recent survey in relation to the stated estimate of£390,000 backlog of repair and maintenance. We are fully aware of the issue of disabled access and until this year had a child in the school with a parent who is a full-time wheelchair user, this parent never criticised the school’s access.” 49.2 On16 March 2014 the Action Group lodged a lengthy objection. Some of the main points of objection appear from the following passages. “Refurbishment does not seem to have been given any real consideration even though this could be funded by Schools Buildings Improvement Grant, this would also fund the improvements to disabled access to the school, which is a possibility as outlined in the survey commissioned by the Action Group.” “BCBC state that they considered other options but that this was the only option that was financially feasible—there has been no information in relation to what other options were considered or the reason for them not being taken forward, other than financial. • Had consideration been given to the possibility of building a school in Llangeinor on the site of the swimming pool? … • Had refurbishment of the current building been considered?” “Section 3.2 of the Code states the consultation document MUST contain ‘a description of any alternatives considered and the reasons why these have been discounted.’” “The officers who attended the consultation meetings with stakeholders stated that community impact assessments would be carried out[;] however this has not been the case. There has been no thought placed upon the devastating impact the closure of Tyn yr heol would have upon the wider community of Llangeinor, once again many of the negative effects are outlined in the HIA [Health Impact Assessment] report (appendix D).” “No alternatives have been considered i.e. clustering, collaboration or becoming a federation with other schools.” • Had consideration been given to the possibility of building a school in Llangeinor on the site of the swimming pool? … • Had refurbishment of the current building been considered?”
“Options for education provision to serve the catchment of Llangeinor were considered and tested at officer level.”
“As an alternative to the proposal, the Council could elect to ‘do nothing’ and not amalgamate the two provisions. However, the advantages detailed in the ‘What are the advantages if the proposal goes ahead?’ section below would then clearly not be realised. Also, the issues with the current accommodation could not be addressed.”
“The reliability of performance data across a larger setting would be strengthened overall as a result of the new school. The key areas for improvement for both schools are similar as the socio-economic context is the same. Both schools have a similar focus on improving various aspects of literacy, numeracy and well-being, including attendance, which should be strengthened in a larger community setting.”
“Deborah McMillan did say that a letter of objection had been received from Byron Davies AM that morning and even though it had been received after the end of the objection period her officers had assured her and were confident that the issues raised by Byron Davies had been addressed in the objection report. She did not read out the letter nor did she summarise its contents. Copies of the letter were not circulated at the meeting.”
“Estyn is unable to come to a considered view as to whether the proposal is likely to maintain or improve the standard of provision in the proposed new school.”