School transport and indirect discrimination

Nicola Bennison, Trish D’Souza and Emma Cullen look at the lessons from a successful judicial review challenge against a council’s home to school transport policy.

In R (on the application of Diocese of Menevia and others) v Swansea City and County Council [1], the Administrative Court was required to consider whether a change in policy made by the council in respect of school transport for pupils attending faith schools was unlawful. In particular, the Court had to consider whether it resulted in indirect discrimination against black and minority ethnic (“BME”) children.

Facts

The council is a local education authority in Wales with six faith schools and twelve Welsh medium schools in its district. The council’s policy provided free transport to and from school for primary school age children who lived two or more miles away from their catchment area school, and secondary school children who lived three or more miles away from their catchment area school. The policy also applied to pupils attending Welsh medium schools and faith schools, even if there was an English medium or non-faith school within two or three miles of their home.

In early 2013, and like all local authorities in Wales, the council was required to make substantial cuts in its expenditure. To save costs, the council proposed to amend its school transport policy by providing that pupils attending faith schools would only be given free transport if there were no other alternative schools, including non-faith schools, located within two or three miles of their homes. No change was proposed for Welsh medium schools.

The council consulted on its proposal and concerns were raised about whether it would contravene discrimination law. An Equality Impact Assessment (“EIA”) was undertaken and whilst it was initially identified that the change in policy would have a negative impact in respect of religion, only a “neutral” impact was identified in respect of race. In the final EIA, which was included in a wider report provided to the council, the author determined that the change in policy was not relevant to race or the Welsh language. The council were also advised that no statute would be contravened.

On 30 July 2014, the council approved its policy change for pupils attending faith schools.

Judicial review challenge

Following the council’s decision on 30 July 2014, the claimants issued a challenge by way of judicial review. The claimants advanced several grounds of claim but for the purposes of this briefing, we are focusing on the claim of indirect race discrimination under the Equality Act 2010.

The Court’s ruling

The Court found in favour of the claimants on the above ground and held that whilst the council’s policy change may have achieved a legitimate aim, the effect of the policy was indirectly discriminatory against BME children and therefore not proportionate. The Court quashed the council’s decision of 30 July 2014.

In making its determination, the Court heard statistical evidence on whether BME children were disadvantaged by the council’s amended policy. Whilst there was some debate about the appropriate “pool for comparison” and which statistics would apply, the Court ultimately accepted the statistics put forward by the claimants that the percentage of white British children disadvantaged by the policy was 29.17%, whereas this figure was 86.23% in respect of BME children. This was based on a “pool” consisting of the children who qualified for free transport under the council’s previous, unamended policy.

The Judge noted that whilst these figures were not agreed by the council (who argued that the “pool” should be all children of compulsory school age in Swansea), even if the council’s figures were used, BME children were still three times more likely to be disadvantaged than a white British child under the council’s amended policy.

Following the determination that the council’s amended policy was indirectly discriminatory on the grounds of race, the council could only defend itself by showing that the amended policy was a proportionate means of achieving a legitimate aim. Both parties agreed that saving costs alone was not a legitimate aim. However, the council argued that it had two legitimate aims, namely the need to save cost and its obligation to promote access to Welsh-medium education. In the council’s view, this was a proportionate means of achieving that aim.

Whilst the Judge accepted that the two aims of the council were sufficiently important to justify limiting a fundamental right, and that the amended policy was connected to that objective, he was neither satisfied that the means chosen by the council were no more than was necessary to accomplish that objective, nor that the amended policy was “a proportionate means of achieving a legitimate aim”.

Comments

This case serves as a useful reminder of the need for public bodies to consider the impact of policy decisions against all of the “protected characteristics” [2] contained within the Equality Act even if it is not immediately obvious that a decision will impact on a particular group. Public bodies are still able to make policy decisions, where a negative impact has been identified, provided the policy is a proportionate means of achieving a legitimate aim and due consideration has been given to ways of eliminating or reducing that impact. Whether this test is satisfied will ultimately depend on the particular factual circumstances, but it is generally accepted that saving costs alone is not a legitimate aim and does not justify limiting a fundamental right of individuals not to be discriminated against.

Nicola Bennison is a partner, Trish D’Souza is a senior associate and Emma Cullen is an associate at Eversheds. Nicola can be contacted on 0115 931 7602 or This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] [2015] EWHC 1436 (Admin)

[2]  Being age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation