Diocese of Menevia & Ors, R (on the application of) v City and County of Swansea Council

A local authority’s policy may constitute indirect discrimination where it places a protected group at a particular disadvantage compared with others. The comparison pool must be identified logically by reference to the provision and should generally include those with a genuine interest in the relevant advantage or disadvantage. Statistical evidence may establish particular disadvantage, although it is not essential where meaningful statistics are unavailable. Cost saving may form part of a legitimate aim when combined with another legitimate objective. The authority must nevertheless show that the discriminatory measure is reasonably necessary after considering less discriminatory alternatives. A material error of law in the report placed before the decision-maker vitiates the resulting decision.

The claimants challenged Swansea Council’s decision to withdraw discretionary free transport for pupils attending faith schools where a suitable non-faith school was nearer, while retaining transport arrangements for Welsh-medium schools. They alleged indirect race discrimination, discrimination contrary to articles 14 and 2 of the First Protocol to the European Convention on Human Rights, breach of the public sector equality duty, failure to obtain relevant information, and procedural unfairness.

The challenge concerned the lawfulness of the Council’s decision of 30 July 2014 to amend its Home to School Transport Policy. The central issues were whether the amended policy indirectly disadvantaged black and minority ethnic pupils, whether it was justified, and whether the Council had materially misunderstood its statutory duty concerning Welsh-medium education.

1. Ground 1 allowed. The amended policy was a provision for the purposes of section 19 of the Equality Act 2010. The appropriate comparison pool was substantially those pupils who genuinely aspired to attend faith or Welsh-medium schools and who had an interest in discretionary transport. That approach was logically aligned with the principles in Secretary of State for Trade and Industry v Rutherford [2006] 4 All ER 577 and related authorities.
2. On the evidence, the proportion of BME pupils disadvantaged by the policy was almost three times the proportion of White British pupils disadvantaged. That established a particular disadvantage under section 19(2)(b) and (c).
3. The Council’s objectives of saving costs and promoting access to Welsh-medium education were sufficiently important to constitute a legitimate aim. The policy was rationally connected to those objectives. However, the Council had not investigated alternatives such as means testing or charging arrangements applicable to both faith and Welsh-medium schools. It therefore failed to show that the policy was reasonably necessary or a proportionate means of achieving the legitimate aim.
4. The claim under articles 14 and 2 of the First Protocol failed. Following R (R and Others) v Leeds City Council [2006] E.L.R 25, article 2 did not require the State to subsidise or pay the cost of transport between home and school.
5. Ground 3 allowed. The report placed before Full Council materially misstated section 10 of the Learner Travel (Wales) Measure 2008 by advising that free Welsh-medium transport could not be withdrawn. The error was legally material and likely to have affected the Council’s deliberations.
6. The court did not need to determine conclusively the public sector equality duty issue. The alleged omissions from the report did not, by themselves, make it significantly misleading or establish a breach of the Tameside duty. The complaint concerning new assertions about school reserves was not finally determined because quashing relief was already required.
7. The Council’s decision of 30 July 2014 was quashed. Directions were given for agreement or written submissions concerning the precise order and costs.