A, R (on the application of) v B Council

A local authority’s decision about whether a person may provide services through its education transport contractors can contain a sufficient public law element to be amenable to judicial review, even where the authority relies on contractual powers. Where the decision has a profound effect on livelihood, reputation and professional relationships, Article 8 may be engaged. The appropriate domestic and Convention test is whether there is a pressing need for the decision. That requires a balance between the individual’s interests and the protection of vulnerable children, with particular weight given to the seriousness of the past conduct, the consequences of recurrence, the passage of time, and any available reassurance. The authority may refuse approval where a real residual risk remains and no practicable lesser measure would adequately protect the children.

The claimant sought permission to challenge the Council’s decision that she should not be used as a driver on education transport contracts. She had committed very serious weapons, violence and false-imprisonment offences as a juvenile and young adult, but had led a blameless life for almost 30 years and had driven children with special educational needs for approximately six years without incident. The Council relied on the seriousness and circumstances of the offences, the absence of current medical evidence eliminating the possibility of recurrence, and its duty to protect vulnerable children.

The issues included amenability to judicial review, engagement of Article 8, proportionality and irrationality, the effect of an escort accompanying the driver, and the Council’s entitlement to consider spent convictions under the Rehabilitation of Offenders Act 1974.

1. Judicial review. The decision was amenable to judicial review. It was not merely a commercial exercise of a contractual power. The Council was applying a policy, through an established suitability procedure, in pursuit of its public duties as an education authority. The reasoning in R v Enfield London Borough ex parte Unwin Ltd and R v Bristol City Council ex parte Barrett applied. Hampshire County Council v Supportways Community Services Ltd was materially different because the only duty there was contractual.
2. Article 8 and proportionality. Although Article 8 does not generally confer a right to work in a chosen profession, it was engaged on these facts because the decision carried stigma and profoundly interfered with the claimant’s professional and personal relationships. Following R (Dr D) v Secretary of State for Health, the domestic and Convention test was whether there was a pressing need for the decision.
3. Risk and pressing need. Risk assessment involved evaluating the likelihood of an occurrence and applying that probability to the decision-maker’s aversion to it. The Council was entitled to assess the risk of physical harm without predicting the precise form of future misconduct. The extreme nature of the offences, their connection with a school and children, and the potentially grave consequences justified seeking a high degree of reassurance. The passage of time reduced the risk but did not eliminate it. The claimant had supplied no medical evidence demonstrating that recurrence was no longer possible.
4. The Council had considered supervision as a less intrusive alternative and was entitled to conclude that it would not provide sufficient protection. The presence of an escort, whose role was to care for the children rather than supervise the driver, did not materially alter the risk. The decision therefore met the pressing-need and proportionality tests.
5. Spent convictions. The statutory scheme potentially permitted the Council to consider the spent convictions because the driver would have contact with children in the absence of the escort, who was a carer for the relevant statutory purpose. In any event, even if the spent convictions had been excluded, the Council would inevitably have reached the same conclusion because the unspent school firearms offences and the remaining evidence independently established a serious risk.
6. Permission to apply for judicial review was granted, but the substantive application was dismissed. Anonymity was ordered for the claimant and the Council, together with protection of the route destination. Permission to appeal was refused.

Not an appeal. The court granted permission for judicial review and dismissed the substantive application.