WC (R on the application of) v Somerset County Council

The claimants sought judicial review of Somerset County Council's decision of 17 March 2021 to approve statutory proposals reorganising schools in the Crewkerne and Ilminster area (moving from a three-tier to a two-tier system). The challenges alleged failures of consultation, predetermination, inadequate regard to the presumption against closure of rural schools, breach of the public sector equality duty (Equality Act 2010 s.149) and indirect discrimination (s.19), incompatibility with Convention rights (Article 14 ECHR, read with Articles 8, 9 or Article 2 of Protocol 1), and irrationality including a failure of inquiry (Tameside duty).

The court applied the familiar Sedley/Gunning principles on consultation and relevant statutory guidance on school discontinuance and prescribed alterations, the Equality Act 2010 duties, and HRA/ECHR principles. It held that (i) the defendant lawfully conducted consultations (Stage 0, Stage 1 pre-publication and Stage 2 representation period), including a lawful decision to consult on a single, detailed preferred model at Stage 1; (ii) there was no actual or apparent predetermination; (iii) the presumption against rural school closure and the statutory factors in s.15(4) Education and Inspections Act 2006 were considered and evidenced in the statutory proposal; (iv) the public sector equality duty was discharged in substance and with due regard to disability and religion/belief issues; (v) indirect discrimination and Article 14 claims were not made out (any disadvantage to non-religious parents in Ilminster was modest and proportionate to legitimate aims); and (vi) irrationality and alleged breach of the Tameside duty failed because the authority had taken reasonably available, proportionate steps and had rational grounds (including specific financial and capacity considerations) for its decision. The claim was dismissed in its entirety.

Background and parties:

• The claimants are two children (represented by their mothers) attending first schools in the Crewkerne and Ilminster area; the defendant is Somerset County Council. The Council approved statutory proposals to close or convert a number of first and middle schools, to amalgamate Greenfylde and Swanmead into a split-site Church of England primary, to discontinue Misterton Church of England First School, and to change the upper school (Wadham) into a secondary school, thereby moving from a three-tier to a two-tier structure. The Futures for Somerset review and three rounds of consultation (Stage 0 informal, Stage 1 pre-publication, Stage 2 statutory representation) preceded the 27 January 2021 statutory proposal and the 17 March 2021 Cabinet decision to approve the proposals.

Nature of the application:

• The claimants applied for judicial review seeking to quash the Council’s decision (relief implicit in judicial review) on seven grounds: (1) unlawful consultation; (2) predetermination; (3) failure to have proper regard to the presumption against rural school closure (first claimant only); (4) breach of the public sector equality duty (second claimant only); (5) indirect discrimination contrary to s.19 EA 2010 (second claimant only); (6) incompatibility with Article 14 ECHR read with Articles 8, 9 or Article 2 of Protocol 1 (second claimant only); and (7) irrationality including a Tameside duty challenge.

Issues framed and legal framework:

• The court framed issues around (a) the lawfulness and fairness of the multi-stage consultation assessed against the Sedley/Gunning principles and the Secretary of State's Closure and Changes Guidance; (b) predetermination (actual and apparent); (c) statutory duty to have regard to s.15(4) EIA 2006 matters when formulating discontinuance proposals and the presumption against rural school closure; (d) compliance with the PSED (s.149 EA 2010); (e) indirect discrimination (s.19 EA 2010); (f) ECHR Article 14 complaint; and (g) irrationality and adequacy of inquiry (Tameside).

Court’s reasoning (concise):

• Consultation: the court found Stage 0 had canvassed a range of options and identified principles. The authority rationally and lawfully decided to consult on a single detailed preferred model at Stage 1 to obtain focused, implementable feedback; the Sedley/Gunning requirements were satisfied (formative stage, adequate reasons, adequate time, and conscientious consideration of responses). The court concluded that reasonable consultees were sufficiently informed of alternatives and the process as a whole, and that later, more detailed material was properly provided in the statutory proposal prior to the Stage 2 representation period.
• Predetermination: no actual predetermination; the authority had a lawful pre-disposition but retained an open mind and would have changed course if a viable alternative had emerged; no appearance of predetermination for the fair-minded observer.
• Rural presumption / s.15(4): the Closure Guidance presumption applies throughout. The statutory duty to have regard to s.15(4) is engaged when formulating a statutory proposal; the Council complied with s.15(4) and evidentially addressed the mandatory factors in the statutory proposal and accompanying impact assessments.
• PSED and indirect discrimination: the decision-maker took substantive, recorded steps (EqIAs, mitigation measures, project implementation plans) to assess impacts on disability/SEND and religion/belief. The authority reasonably concluded that reducing transition points is likely to benefit pupils with vulnerabilities and that any disadvantage to non-religious families was modest and justified as proportionate to legitimate aims (educational sustainability, efficient delivery, safeguarding choice of faith provision).
• Article 14: because the indirect discrimination and justification analysis failed to show illegitimate discrimination, the Article 14 claim likewise failed.
• Irrationality / Tameside: the court accepted the Council's rational basis for not undertaking every conceivable further cost/benefit exercise once material savings and deliverability considerations emerged; no Wednesbury-unreasonable conclusion and no failure of inquiry of the kind that would make the decision unlawful.

Result: the High Court dismissed the judicial review claims in full.

The claim is dismissed. The court held that Somerset County Council lawfully conducted the multi-stage consultation, had not predetermined the outcome, gave proper and continuing regard to the presumption against closure of rural schools and to the mandatory s.15(4) considerations in formulating the statutory proposal, complied with the public sector equality duty in substance in relation to disability and religion or belief, did not indirectly discriminate unlawfully or breach Article 14 ECHR, and did not act irrationally or fail in its Tameside duty. The Cabinet’s approval of the statutory proposal on 17 March 2021 was therefore lawful.