Jones, R (on the application of) v Ceredigon County Council

A local education authority must provide free transport where, without it, a parent would have a defence under Education Act 1996, section 444(4), to a prosecution for non-attendance. The practical likelihood of prosecution is irrelevant; the theoretical availability of the defence is sufficient.

For section 444(4)(b)(iii), the nearer school must itself be suitable for the child. It is insufficient that the authority has made arrangements which are otherwise practical. Suitability includes the educational suitability required by section 7. A refusal of transport based on an unsuitable nearer school is unlawful.

The claimants attended a Welsh-medium secondary school outside the defendant authority’s area. Their nearest school was within the statutory walking distance but was English-medium and accepted by the authority to be unsuitable. A further Welsh-medium school was suitable, but substantially farther away, and transport to it would have been available.

The authority’s Transport Appeal Panel concluded that section 509(1) did not require transport to the school attended because the claimants could reasonably attend the other Welsh-medium school. The claimants sought judicial review, raising whether the section 509 duty was linked to the section 444(4) defence and whether an unsuitable nearer school could satisfy section 444(4)(b)(iii).

1. Claim allowed. The authority’s refusal to provide transport to the school attended was quashed.
2. Section 509(1) of the Education Act 1996 had to be construed in conjunction with section 444(4). The established construction was that transport was necessary where a child attended a school beyond walking distance and no suitable arrangements existed to enable attendance at a nearer suitable school. The court declined to reopen that construction. The original decision in Surrey County Council v Ministry of Education was not based on concession alone: the judge had considered the argument and would have decided it if necessary. That approach had been accepted in George v Devon CC and applied in R v Vale of Glamorgan CC ex p J.
3. The theoretical possibility of a prosecution under section 444 remained relevant, even though prosecutions were uncommon and education supervision orders might provide a more usual remedy. Parliament had retained the provision, and section 444(4)(b) recognised its connection with transport duties.
4. For section 444(4)(b)(iii), “suitable arrangements” included arrangements for a child to become registered at a school suitable for that child. It would be unlawful to register a child at a school known to be unable to provide education suitable to the child’s age, ability, aptitude or special educational needs. The contrary reasoning in Re S was not followed to the extent that it treated the school’s objective suitability as immaterial. The approach in Re C (a minor), R v Kent CC ex p C and R v Vale of Glamorgan CC ex p J was preferred.
5. Here, the authority accepted that the nearest school was unsuitable because it was not Welsh-medium. It could not rationally rely on that school to avoid the duty to provide transport to the nearest suitable school.

First-instance judicial review proceedings. Permission had initially been refused on the papers and was later granted. No appeal decision is stated.