A Local Education Authority could not properly refuse to provide free transport on the basis that there was a nearer school unless that nearer school was in its view suitable. In regard to Re S: ‘A little later, in relation to ‘the alternative issue [of whether] the LEA [were] Wednesbury unreasonable and perverse in their decision not to continue to provide free transport’, Butler-Sloss LJ said (pp132-134) that she entirely agreed with May J’s approach and had nothing more to say about it. I have not found it easy to know what is the effect of this judgment and in particular to know what meaning the Court of Appeal was saying should be given to the words ‘suitable arrangements . . for enabling him to become a registered pupil at a school nearer his home’. Despite the court’s express disagreement with what Staughton LJ had said, I can hardly think that the court meant that the decision of a LEA that a school was suitable when it was obviously not would be beyond challenge. Suppose, to take an extreme and improbable example for the purpose of testing the point, that the nearer school which the LEA regarded as suitable was a boy’s school and the child in question was a girl, or it was a special school and the child was of normal intelligence. I infer, therefore, that all the court was saying was that, whether in criminal proceedings in the magistrates’ court or on an application for judicial review in the High Court, the objective suitability of a nearer school was not a material consideration and that the ‘other arguments’ which it was ‘not strictly necessary to consider’ were the further points advanced by counsel for the children in relation to his first submission. In the second section of the judgment, in which May J’s consideration of the second submission was approved, there is nothing which suggests that the court regarded the Wednesbury exercise as superfluous. As the judgment said, counsel for the children was making alternative submissions. In these circumstances I think it right to follow R v Dyfed County Council ex parte S only so far as the decision binds this court. I take the case to have decided that the objective suitability of the nearer school was not a matter for the court to determine. Either that was all it decided, or, additionally, which I think more likely, it decided that the relevant question was whether the authority’s view that the nearer school was suitable had been shown to have been reached unlawfully. I do not think that the court’s disagreement with Staughton LJ’s opinion was necessary to its decision since Staughton LJ was not saying that the court should consider the objective suitability of the nearer school. In my judgment: (1) a LEA cannot properly refuse to provide free transport on the basis that there is a nearer school which a child could attend unless it is of the view that the nearer school would be a suitable school for the child to attend, and (2) when considering a challenge to a local authority’s refusal to provide free transport, if the refusal was based on the authority’s view that there was a nearer suitable school, the function of the court is to see whether it has been shown that the authority’s view about that school’s suitability was lawfully reached, which in most cases will require no more than a consideration of the rationality of its conclusion. This accords with the approach of Staughton LJ, Roch J and May J, and I infer that Steyn LJ agreed with it. It agrees with the view of the Secretary of State as expressed in the circular, which, I note, he has not modified despite the decision of R v Dyfed County Council ex parte S. This is Circular No 1 of 1994, headed ‘School Transport”.
Judges:
McCullough J
Citations:
[1998] ELR 108
Citing:
Distinguished – In Re S CA 1995
Parents wanted their children to attend English middle schools in Wales. The Court dealt with the argument that the objective suitability of the nearer school had to be considered by the court on judicial review. Alternatively, it was argued that it . .
Lists of cited by and citing cases may be incomplete.
Education
Updated: 13 May 2022; Ref: scu.199250
