Roberts, R (on the application of) v The Welsh Ministers & Anor

A ministerial policy must be interpreted by asking what a reasonable and literate person would understand it to mean. The court must determine that meaning before reviewing the decision-maker’s application of the policy.

Under Circular 21/2009, a “popular school” ordinarily means one which is very well attended. A sustained surplus of no more than 10% is a strong indicator, but other relevant characteristics may be considered. A single unrepresentative snapshot is insufficient.

A Tameside duty requires reasonable inquiry into basic facts material to the decision. Where the decision-maker’s reasoning is flawed but the result is inevitable under the correct test, the court may refuse relief.

The claimant challenged the Welsh Minister’s approval of proposals to close two English-medium primary schools in Cardiff, replace them with one school, and expand a Welsh-medium school. Permission was granted on five grounds, including misinterpretation of Circular 21/2009, inadequate inquiry into educational and financial matters, unlawfulness of a “local schools for local children” policy, discrimination, and Convention rights.

The central issues were whether the Minister lawfully assessed the popularity of one school, whether he had sufficient evidence concerning educational equivalence and total cost, whether the local-authority policy was lawful, and whether any established error required relief.

1. Interpretation of policy. The court followed the approach in R (Raissi) v Secretary of State for the Home Department [2008] QB 836. The meaning of ministerial policy is a question for the court, assessed by asking what a reasonable and literate person would understand the words to mean. The issue is not merely whether the Minister’s interpretation was rational.
2. Meaning of “popular school”. In the context and purpose of Circular 21/2009, the phrase describes a school which is very well attended. A school with surplus places of 10% or less should ordinarily be regarded as popular if that position has persisted over a period of years. A single point-in-time figure is not enough. A school with a longer-term surplus exceeding 10% may nevertheless be popular where its other relevant characteristics, considered cumulatively, justify that conclusion. Catchment-area attendance is not an essential additional criterion.
3. Ground 1. The Minister acted irrationally or unreasonably by relying on January 2010 pupil numbers which were not representative because closure proposals had recently been published. His use of the percentage of eligible catchment children attending the school was, however, rational and reasonable.
4. Ground 2. The Minister had considered educational equivalence and was entitled to rely substantially on impartial specialist advice from Estyn. The duty of inquiry did not require further investigation on the evidence before him.
5. Ground 3. Circular 21/2009 required evidence and a reasonably detailed analysis of capital costs compared with retaining the existing schools, together with predicted revenue expenditure. The Minister had not satisfied himself on those basic facts. Applying Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] A.C 1014, he had failed to discharge his duty of reasonable inquiry.
6. Grounds 4 and 5. The local-authority policy of seeking a reasonable match between school capacity and catchment demand, and encouraging attendance at the local school, was not incompatible with parental preference. The alleged discrimination claim was insufficiently particularised and lacked an identified legal foundation.
7. Relief. Applying the principles discussed in R (Edwards) v Environment Agency [2008] ENV.L.R. 34, the court refused to quash the decision. Although the reasoning was flawed, the correct application of the popularity test could lead only to the conclusion that the school was not popular. No useful purpose would be served by remittal, and the cost issue would then fall away. The claim was dismissed and no relief was granted.

The judgment is a first-instance decision of the High Court (Administrative Court). No appeal stage is stated in the judgment.