Council defeats High Court challenge to school closure plans

A council in Wales has successfully defended its decision to close two primary schools in its area and move pupils to larger establishments.

The claimants in Wiggins & Anor, R (on the application of) v Neath Port Talbot County Borough Council [2015] EWHC 2266 (Admin) challenged the closure decision in relation to Clun Primary School and Pontrhydyfen Prmary School.

The authority intends to provide primary education at the larger schools of Ynysfach Primary School (in the case of Clun) and Cwmafan Primary School (in the case of Pontrhydyfen).

The claimants, who wanted to see their children’s schools kept open through the establishment of a federation, advanced a number of grounds of challenge, arguing that Neath Port Talbot had failed to properly assess the impact of its decision. This included not taking into account the costs of closure, they said.

Mr Justice Gilbart, who heard the case at the Cardiff Civil Justice Centre, noted that:

• The closure of a school in a small community would often raise great concern, as one would expect. “Parents like those of the children at these two schools want the best for their children, and can form strong bonds with the school and its teachers. As this case shows with clarity the prospect of change and of their children having to go to another larger school has excited considerable concern. It is quite natural that a parent's view of what is best for his or her child may not coincide with the views of the education authority where the closure of a school is concerned.”
• Resources were not infinite, and the education authority must do what it could to achieve the appropriate educational standards within such resources as existed. “It had to grapple with the fact that these two schools are operating at well below capacity, and that there was evidence that the removal of pupils to larger schools could achieve better educational outcomes for them. In dealing with questions and objections, the council is a under a duty to provide the relevant information which has informed their proposals. But there are some limits. Thus, a description of the work which needs to be done as backlog maintenance is appropriate. The supply of detailed costings, as though one were drawing up a schedule of works, is not, and would place too great a burden on an authority.”
• The decision maker was the Neath Port Talbot County Borough Council, which was a democratically elected body. His task as judge was not to form any view of whether he agreed or disagreed with the decisions made, but to determine if they had been made within the law.

The High Court judge concluded that the only arguable point for both claimants was the issue of redundancy costs.

He noted that despite the council contending that such costs were irrelevant under the Schools Organisation Code 2013 issued by the Welsh Ministers, when the consultation and objection process were under way, it went to the trouble of identifying them repeatedly as a cost which could be incurred.

“I do not accept that that was an error, nor that they are irrelevant under the code,” the judge said. “As a matter of fact any redundancy payments made to an employee at a school to be closed is a cost incurred as a result of the closure, which must come out of the education budget.”

Mr Justice Gilbart said it was plain that when one was considering whether a proposal was cost effective and produced savings, the incidence of an element of cost must be material in any event.

The judge accepted that the actual turnout figure of redundancy entitlements could not be known in advance. “Some figures could be used as a worst case estimate. Here, beyond identifying that there were such costs, the council neither identified them, nor responded to the questions raised at both schools on this topic.”

However, Mr Justice Gilbart said he was required to consider whether, if the costs of redundancy had been taken into account, it was highly likely that the decision would not have been substantially different.

“While I accept that it would have been sensible to assume that some of the employees at the two schools would have been re-employed, the fact of the matter is that no assessment was made at the time,” he said.

“I therefore consider it appropriate to look at the worst case figures. Even if one assumed that everyone would be made redundant, and that the potential redundancy costs were of the same order as that which would be paid to the deputy head teacher, the figures produced at the hearing, which were not the subject of challenge, show that there would still have been savings as a result of the proposal, plus some but unspecified amount for the disposal of the buildings.”

The judge added: “One must not lose sight of the fact that the reasons for the proposals were not only based on costs. These are two schools operating at well below capacity, where there was quite a substantial amount of material, relied on by [the council], that the quality of educational provision would be improved as a result of the proposals.”

Mr Justice Gilbart said he therefore accepted the council’s argument in each case that it was highly likely that the outcome for the claimants would not have been substantially different. He refused leave in both cases accordingly.