McDougal, R (on the application of) v Liverpool City Council

Judicial review of a school-closure decision examines legality, not the merits of the educational policy. A local authority must ask itself the right question, take reasonable steps to obtain relevant information, have regard to applicable statutory guidance, and consider material social, community, transport and human-rights consequences. Guidance requiring a decision-maker to bear relevant factors in mind does not make compliance with every factor a precondition to closure. Closing a non-faith school does not, without more, breach Convention rights where suitable education remains available, including at another non-faith school. A decision will stand where the authority considered the relevant matters and reached a conclusion within the range of lawful judgment.

The claimant, a former pupil and parent of pupils at Croxteth Community Comprehensive School, challenged Liverpool City Council’s decision of 13 February 2009 to close the School with effect from 31 August 2010. The Council had identified a substantial surplus of secondary-school places and selected the School because it had the weakest academic results and the highest projected surplus.

The claim alleged errors concerning Building Schools for the Future funding, community cohesion and legitimate expectation, Convention rights, a proposed National Challenge Trust Partnership, statutory guidance on school journeys, delay and the availability of relief. The central issue was whether the Council had acted unlawfully by failing to consider relevant matters or by infringing the claimant’s rights.

1. Claim dismissed. The Council’s decision was not an appeal on the merits. The court’s function was to determine whether the authority had acted within lawful limits, applied the correct legal principles and considered relevant information.
2. The Council did not proceed on a material error concerning Building Schools for the Future funding. It had made appropriate inquiries, received information that a proposal including the School would not be accepted, and communicated that information to the councillors. The later ministerial email could not impugn an earlier decision and was in any event consistent with support for closure (paras [24]–[37]).
3. The Council had considered community cohesion, community safety, social factors and community use. An earlier statement that a broadly based strategy was preferable did not amount to a binding promise that closure could occur only after an agreed strategy had been adopted. The Council was entitled to devise its own strategy, including investment in surviving schools, wider access to faith schools, transition arrangements, extended services and safe transport (paras [38]–[60]).
4. The closure did not breach articles 14 or 2 of Protocol 1 to the ECHR. Any difference in treatment pursued legitimate aims and was proportionate, having regard to surplus places, educational performance, proximity of alternative provision and free transport. There was no right to education at a particular school where suitable non-faith co-educational education remained available (paras [61]–[72]).
5. The National Challenge Trust Partnership proposal had been considered. Rejecting it was open to the Council because it would have required renewed consultation, possible closure of a more successful school, reconsideration of the BSF proposal and continuation of surplus capacity (paras [73]–[77]).
6. The Council had considered travel consequences and provided free return transport for displaced pupils and, following the hearing, their siblings. Paragraph 4.40 of the Guidance required the factors to be borne in mind; it did not make prior completion of a transport assessment a condition precedent to closure. The proposed arrangements were not irrational (paras [78]–[97]).
7. The delay point was unnecessary to decide. The judge’s preliminary view was that the claim, brought within the prescribed three-month period, was not defeated by delay. Even if a complaint had succeeded, the Guidance and the surrounding circumstances provided powerful reasons why relief might have been refused (paras [98]–[100]).