Rhieni Dros Addysg Gymraeg, R (on the application of) v Neath Port Talbot County Borough Council & Ors

A school reorganisation proposal may affect schools beyond those directly closing or opening. A Welsh-medium school is affected where there is a real, more-than-fanciful possibility of material change resulting from the proposal, including possible loss of pupils or changes to its provision. Certainty, or a strong likelihood of change, is unnecessary.

Where an affected school provides teaching through Welsh, paragraph 3.4 of the mandatory School Organisation Code requires a Welsh language impact assessment to be included in the consultation document. Monitoring or mitigation measures do not show that a school is unaffected. A later assessment does not cure the failure to comply at the formative consultation stage.

The claimant challenged the council’s October 2021 decision to close three English-medium primary schools and establish one new English-medium primary school. It argued that the council should have included a Welsh language impact assessment in the prior consultation because nearby Welsh-medium schools might lose pupils or otherwise be materially affected.

The council argued that paragraph 3.4 of the School Organisation Code applied only where Welsh-medium schools were directly involved, or alternatively that no Welsh-medium school was affected. It also argued that the consultation need not be reopened after the assessment and that relief should be refused for delay or because the outcome would have been the same.

1. Claim allowed in part. The council’s decision was quashed. The claimant succeeded on the failure to include a Welsh language impact assessment in the consultation. The challenges based on reopening the consultation after the assessment or on the later Welsh Government report failed.
2. Paragraph 3.4 of the School Organisation Code distinguishes schools directly involved in a proposal from the wider class of schools affected by it. “Affected” is primarily an evaluative factual judgment for the local authority, subject to correction for legal error, irrationality or other established public law error.
3. In deciding whether a school is affected, the authority must consider matters including the effect on existing pupils, the availability of places for Welsh-medium primary education and the likelihood of parents choosing a closer English-medium school. A real possibility of material change is sufficient. The possibility need not be certain or highly likely.
4. The council applied an impermissibly high threshold. Its own initial assessment recognised that the new English-medium school could attract pupils from Welsh-medium schools. That real possibility meant that the relevant Welsh-medium schools were affected and that a Welsh language impact assessment was mandatory within the consultation document.
5. Monitoring future parental choice is not genuine mitigation for this purpose. Real mitigation, such as investment intended to retain pupils, points towards a school being affected because the school must address the practical consequences of the proposal.
6. The assessment was mandatory from the outset. If it had not been mandatory under the Code, obtaining it later would not have created a separate common law duty to reopen the consultation. Similarly, the late Welsh Government report did not generate a fresh duty to consult because it did not materially alter the proposals or the substance of the arguments.
7. For the purpose of Senior Courts Act 1981, section 31(2A), the outcome is not confined artificially to the challenged decision. The court could not conclude that the outcome would highly likely have been substantially the same without the omission, particularly since the eventual implementation remained uncertain.
8. The claim was brought promptly enough in the circumstances. Delay and prejudice are matters of fact and degree; there are no special rules for school reorganisation cases. The court declined to refuse relief on those grounds and made a quashing order rather than merely granting a declaration.

First-instance judicial review decision. The judgment records that permission was granted by Steyn J on 23 March 2022.