McCann, R (On the Application Of) v Bridgend County Borough Council

A public authority conducting statutory consultation must comply with mandatory consultation requirements and give proper reasons for material departures from non-mandatory guidance. Where a statutory school-closure procedure requires alternatives to be described, the consultation document must identify alternatives actually considered and explain why they were not pursued. Where pupils are transferred to alternative provision, the authority should ordinarily have evidence that outcomes and provision will be at least equivalent. Failure to provide required information is assessed by reference to the purpose of the duty and the inevitability test: the decision need not be quashed if the outcome would inevitably have been the same. Breaches which undermine meaningful public participation and reasoned decision-making may justify a quashing order.

The claimant sought judicial review of Bridgend County Borough Council’s decision to close Tyn yr Heol School and Betws Primary School and establish a new school on the Betws site. The decision was taken under Part 3 of the School Standards and Organisation (Wales) Act 2013 and the School Organisation Code.

She alleged failures to identify alternatives, provide evidence concerning educational outcomes and provision, assess and disclose community impact, and notify regional Assembly Members. The central issues were whether the statutory procedure had been followed and whether any breaches were material to the validity of the decision.

1. Permission and relief. Permission was granted and the claim succeeded. The decision to implement the school-closure and amalgamation proposal was quashed.
2. Alternatives. The Code required the consultation document to describe alternatives considered and explain why they had not been pursued. It did not require full particulars of every alternative, but it required sufficient information to enable consultees to understand the alternatives and the reasons for rejecting them. The authority had considered refurbishment, alternative sites and other organisational models at a general level, but disclosed only a “do nothing” option. That was a material breach.
3. Educational evidence. The Code required the authority to place learners’ interests first and give paramount importance to outcomes, provision, and leadership and management. Where learners were transferred, there should normally be evidence that the alternative provision would be at least equivalent. The material relied on by the authority was an unauthenticated assertion about data reliability and shared improvement priorities. It did not evidence that standards and provision would be maintained, and Estyn’s response, read as a whole, did not support that conclusion.
4. Community impact and information. The consultation document contained sufficient information about community impact, so there was no breach of the relevant consultation requirement on that point. However, failing to make the Community Impact Assessment available before the decision breached sections 100B and 100D of the Local Government Act 1972 and contributed to an unfair consultation, particularly because objections had specifically requested it.
5. Regional Assembly Members. The Code required information to be supplied to regional as well as constituency Assembly Members. The failure to notify regional Members was a clear breach. Although the relevant Member submitted a detailed letter and some cabinet members read it, the breach was not cured. The court was not satisfied that the outcome would inevitably have been the same if the required information had been supplied in time.
6. Delay. Delay did not justify withholding relief. The claimant and supporting bodies had acted with reasonable expedition and no material prejudice was shown.

First-instance judicial review decision. The defendant’s application for permission to appeal was adjourned for consideration on the papers.