Driver, R (On the Application Of) v Rhondda Cynon Taf County Borough Council

Proposals which remove sixth-form education require approval by the Welsh Ministers under section 50 of the School Standards and Organisation (Wales) Act 2013. The statutory examples in section 50(2) are not exhaustive. Where the English and Welsh texts of Welsh legislation have equal standing, both must be construed and given consistent effect.

A statutory school organisation code distinguishes mandatory requirements from directory guidance. A local authority must comply with mandatory requirements and may depart from guidance only for good reason. In assessing Welsh-medium education proposals, it must consider their effect on existing provision and on related secondary and post-16 provision. Failure to do so may invalidate the decision.

The claimant challenged the defendant Council’s decision to implement a comprehensive reorganisation of education in the Pontypridd area. The proposals included closing or replacing schools, ending three sixth-form provisions, and reorganising Welsh-medium primary education.

She alleged that the Council had failed to refer two sixth-form proposals to the Welsh Ministers, had failed to comply with the School Organisation Code 2013 in relation to Welsh-medium education, Estyn’s consultation response and alternative proposals, and should be denied relief because of delay or because the outcome would have been unchanged.

1. Ground 1 succeeded. Section 50 of the School Standards and Organisation (Wales) Act 2013 had to be read as a whole. Section 50(2) identified ways in which proposals affected sixth-form education, but did not create an exhaustive list. In any event, the word “only” in section 50(2)(a) qualified the education provided, not the school. The Welsh text supported that construction and could not be disregarded because the Welsh and English texts had equal standing.
2. Replacing schools educating pupils aged 11 to 19 with new schools educating pupils aged 3 to 16 affected sixth-form education. The proposals therefore required approval by the Welsh Ministers under section 50. The Council’s failure to refer the Pontypridd High and Hawthorn High proposals was unlawful.
3. The Code distinguished mandatory requirements from directory guidance. The Council had to comply with provisions using mandatory language such as “must”; provisions using “should” could be departed from only for good reason.
4. The Welsh Language Ground succeeded. Paragraph 1.4 of the Code required existing pupils to receive at least equivalent standards and progression opportunities in their current language medium. Paragraph 1.9 required consideration of the effect of proposals on the sustainability or enhancement of Welsh-medium provision in the 14–19 network and wider area and on access to Welsh-medium post-16 courses. The Council failed meaningfully to assess the effect of changing Welsh-medium primary education on Welsh-medium secondary education, and failed to provide an adequate explanation for departing from paragraph 1.9.
5. The Estyn Ground and Alternative Proposals Ground failed. Estyn’s responses had been included and the material objections had received responses, although the claimant disputed their quality. The Council had considered the alternative proposals. Judicial review did not permit the court to substitute its view on the merits.
6. The claim had been brought promptly. Relief was not barred by delay. The statutory test under section 31(2A) of the Senior Courts Act 1981 was not satisfied because it was not highly likely that the outcome would have been substantially the same if the Welsh-language failure had not occurred.
7. The decision of 18 July 2019 was quashed. The proposals concerning the sixth forms at Pontypridd High and Hawthorn High had to be referred to the Welsh Ministers.