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

The claimants sought judicial review of the defendant local authority’s decision (30 July 2014) to amend its Home to School Transport Policy so that discretionary free transport to faith schools would be removed where a nearer suitable non-faith school exists, while Welsh-medium transport would be retained. The court identified the relevant provision, criterion or practice and applied the Equality Act 2010, in particular section 19 (indirect discrimination), together with the statutory guidance on indirect discrimination and the three-stage proportionality test. The court held that, properly construed, the pool for comparison comprised those pupils who would qualify for discretionary transport under the current policy, and on that comparison BME pupils would suffer a materially greater disadvantage than White British pupils. Although the court accepted that the defendant pursued legitimate aims (savings together with promotion of Welsh-medium education) it concluded the amended policy was not a proportionate means of achieving those aims and therefore indirectly discriminated on the ground of race under section 19 of the Equality Act 2010.

The court further found that the report to Full Council contained a material error of law concerning the effect of section 10 of the Learner Travel (Wales) Measure 2008 (promotion of Welsh-medium education) and the necessity of maintaining Welsh-medium transport, and that the error vitiated the decision. A claim under Article 2 of Protocol 1/Article 14 was rejected in accordance with authority. On those grounds the decision of 30 July 2014 was quashed.

Background and parties:

• The First Claimant is the diocesan authority for Catholic schools in Swansea; the Second Claimant is the governing body of a Catholic secondary school; the Third Claimant is a pupil at a Catholic primary school. The Defendant is the local education authority for the City and County of Swansea.
• The Defendant’s existing Home to School Transport Policy provided discretionary free transport to pupils attending faith schools or Welsh-medium schools subject to distance criteria. The Full Council approved an amended policy on 30 July 2014 removing discretionary transport for faith schools where a nearer suitable non-faith school exists, while retaining Welsh-medium transport.

Nature of the claim and relief sought:

• The claimants sought judicial review and quashing of the decision to amend the policy. Seven grounds were pleaded and permission was granted on all; six were pursued at the substantive hearing. Key grounds were (1) indirect race discrimination under section 19 Equality Act 2010; (2) discrimination under the European Convention (Article 14 and Article 2 Protocol 1); and (3) material legal error in the Full Council report concerning the Learner Travel (Wales) Measure 2008.

Issues framed:

1. Whether the amended policy amounted to indirect discrimination on racial grounds (Equality Act 2010 s19), including identification of the appropriate provision, the appropriate comparator pool and whether there was a "particular disadvantage" to BME pupils;
2. Whether the defendant could justify any discriminatory effect as a proportionate means of achieving a legitimate aim (including consideration of the "costs plus" principle and the Measure’s requirement to promote Welsh-medium education);
3. Whether Article 2 Protocol 1 / Article 14 of the Convention were engaged; and
4. Whether the Full Council had been misled by an error of law in the report (and, separately, whether equality duties and procedural duties such as Tameside were properly discharged).

Court’s reasoning and conclusions:

• The court applied the statutory definition of indirect discrimination and the Equality and Human Rights Commission guidance. It emphasised correct identification of the provision, and then the correct comparator pool. The leading authorities on pool selection (Rutherford and subsequent authorities) were applied: the appropriate pool was those pupils who would qualify for discretionary transport under the current policy (i.e. those with a genuine interest in the discretionary provision).
• On the parties’ statistical material, when that pool is used the proportion of BME pupils who would be disadvantaged by the amended policy was substantially higher than the proportion of White British pupils (claimants’ analysis: c. 86.23% BME disadvantaged v c. 29.17% White British disadvantaged), giving a clear particular disadvantage to BME pupils. The court accepted that a statistical comparison was appropriate and that the results established indirect race discrimination under s19.
• On justification, the court accepted that saving public expenditure together with the duty to promote Welsh-medium education could be legitimate aims (and that the "costs plus" principle applied), but held that the defendant had not established the amended policy was a proportionate means of achieving those aims. The authority had not adequately investigated or evidenced less discriminatory alternatives or mitigation (for example means testing or charging arrangements capable of reducing impact).
• On ground 3 the court found the Full Council report contained a material error of law: it incorrectly stated that travel assistance was required to meet section 10 of the Learner Travel (Wales) Measure 2008 and that Welsh-medium transport could not be withdrawn; that misstatement was material to members and vitiated the decision.
• On the Convention grounds the court followed authority (R (R and Others) v Leeds City Council) and held Article 2 Protocol 1 was not engaged in a way that required subsidised transport; consequently Article 14 did not provide a successful basis for the claim.
• Other grounds (public sector equality duty, alleged factual omissions in the report, and procedural unfairness at the Full Council meeting) were considered briefly: the court did not find those additional grounds sufficient to overturn the decision apart from the issues already decided under grounds 1 and 3.

Remedy: The court granted the claimants’ substantive relief and quashed the Full Council decision of 30 July 2014. Directions were given about the form of order and costs submissions.

This is a first-instance judgment: the claim succeeds. The court quashed the defendant’s Full Council decision of 30 July 2014. Rationale: the amended policy unlawfully indirectly discriminated against black and minority ethnic pupils under section 19 of the Equality Act 2010 because, on the correct comparator pool, BME pupils would suffer a particular disadvantage; the defendant failed to show the policy was a proportionate means of achieving legitimate aims. In addition the report to Full Council contained a material error of law concerning the Learner Travel (Wales) Measure 2008 (section 10) which vitiated the decision. The Convention-based challenge failed.