England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE ELIAS

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 27th April 2001

LORD JUSTICE SCHIEMANN :

Introduction

1. J is a pupil at F secondary school. That school is not within walking distance of his home. His parents wish the LEA to make arrangements for his transport to and from school. The LEA have refused to do so. This refusal was challenged by J by way of Judicial Review. Elias J refused to quash the decision of the LEA. J appeals to us.
2. A LEA is obliged to provide free transport to and from the school which the pupil is attending if it is not within walking distance from his home unless it has lawfully arrived at the view that the child could attend a suitable school which is within walking distance – see R v Kent County Council, ex parte C [1998] ELR 109 and the Education Act 1996 sections 411, 444 and 509. The LEA takes the view that there is such a suitable school, namely S school. The applicant submits that S school is not suitable.
3. That is the essence of this dispute as it now stands. However, matters have been complicated by the fact that J has moved from primary school to secondary school in the middle of this litigation with the result that, whereas the original challenge was to the lawfulness of a refusal to pay for transport to a primary school, the challenge now is to a refusal to pay for transport to a secondary school.
4. The factual background

The change of primary school

J was born in 1988 and in due course went to A Primary School. That was a feeder school for S secondary school. In September or October 1999 J's parents applied for him to go to S the following September. It seems he was bullied at A school. The Judge said this:

"From early 1999 his parents became concerned about the fact that he was being bullied at school and they attributed this to victimisation because of his racial background. The evidence lends support to this view. There may be some question about how far the incidents were motivated by racial antagonism. The evidence suggests that the applicant was not altogether an easy child, and, no doubt, some of the problems were of a kind generated amongst any community of children, but, in my view, the evidence clearly shows that race was a material factor in some of the treatment meted out to the applicant."

5. At the end of 1999 or the beginning of 2000 the mother withdrew J from A School. The following term he went to N Primary School.
6. On 25th January 2000 the applicant's solicitors wrote to the Council:

"We enclose for the Authority's kind attention a copy of a letter that our client received from Mr. Eddie Street, consultant Clinical Psychologist confirming the problems that J has experienced. We also enclose for your attention a copy of a report prepared by Sarah Corkhill, the Community Support Worker dated 12th March 1999 that again supports the problems experienced by J. We understand the decision to remove J from A primary School is a view that was supported by J's General Practitioner also.

May we ask therefore that the Authority confirm that it is prepared to consent to the transfer to N Primary School and can we also please receive the Authority's confirmation that it will meet the transportation costs in respect of the same. Of course N is the feeder school to F School which would be the Comprehensive school that our client would prefer her son to attend for the same reasons stated above."

7. The letter from Mr. Street is dated 29th June 1999 and addressed to the parents. It contains the following paragraphs of relevance:

"It is very evident that J is aware of his racial difference to the majority of children in his school. His background as a child from a mixed race family is a very important part of his developing self-identity. He is naturally sensitive to any taunts of a racial nature.

3. J has a number of difficulties in relating to children of his own age. These difficulties are linked to his underlying lack of self-confidence in his own abilities and his need to be dominant in any group. These problems are long-standing and primarily need to be addressed in situations where J is regularly in contact with other children."

8. Ms Corkhill's letter refers to J's complaints about bullying and racial taunting. It makes no mention of moving schools.
9. On 3rd February the Council wrote to the applicant's solicitors to the effect that no permission was needed from the Authority to move J to N School but that the Authority was not satisfied that A primary school was unsuitable for J and that therefore it would not pay for transportation costs to N school.
10. On 7 February Dr. Edwards wrote:

"To whom it may concern,

J is very distressed and disturbed as a result of racial abuse at his school. He is not sleeping and refusing to go out. He is under the care of psychologist. He has been spat at and some of the boys have urinated over him. He cannot cope with this kind of attack any longer.

He needs to be in a multi-racial school where he will not stand out from other children. If he is not given this opportunity his health and mental state will suffer.

I hope you will support his application to a multi-racial school".

11. [On 26th September 2000 Dr. Edwards, in reply to an inquiry from the applicant's solicitors, said:

"My recommendation was based on information provided by J's mother over a period of time and also on the report of the Community Child Health Physician".

We have not seen that report.]

12. On 22 June permission was granted to move for Judicial Review in relation to the decision to refuse to pay transport costs to N school. It is now accepted that those proceedings were misconceived in that N school was within walking distance. In consequence there was no duty to pay for transport thither.
13. On 10^th July Mr. Ahmad Head of Schools within the Directorate of Learning and Development at the Council said in a statement in relation to Mr. Street's letter:

"Nowhere does Mr. Street conclude that J's psychological condition is such that he could not attend A Primary School. I have since been shown a copy of a letter from J's General Practitioner, Dr. Edwards, dated 7.2.00 which was provided to the respondent on 20.6.00. This letter had no bearing the respondent's decision, of course, but I would point out in any event that the recommendation made by Dr. Edwards in the second paragraph must be open to question since the Doctor appears to have no qualification to make such a remark and J is already under the care of a psychologist, as is recognised by Dr. Edwards in his first paragraph."

The secondary school : is it as such suitable?

14. On 28^th July the applicant's solicitors wrote to the Council:

"We note that J is now due in September to attend F Comprehensive School having been offered a place."

15. J's solicitors made it plain that they wished the Authority to pay for transport to F school which undoubtedly was outside walking distance from J's home.
16. On 1^st August the Council's solicitor wrote:

"I have now discussed with my client's department your longest letter of 28^th July. In the light of the contents of that letter, it would appear that the relevant question now is whether there is a suitable secondary school in the … area. The Local Authority would maintain that both S Comprehensive School and C Comprehensive School would both be suitable. I see no reason to consider either of these schools would be unsuitable, and, indeed, no suggestion has ever been made that they are not suitable. Under the circumstances, the Local Authority cannot agree to meeting the cost of providing transportation of J to F Comprehensive School."

17. It is this refusal which is under attack in the current litigation. On 1 August the applicant amended his form 86A so as to make this clear.
18. On 18^th August the Council were served by the applicant's solicitors with a statement by his mother Mrs. F. She said in the following:

"7. The local Authority were aware as far back as 25^th January 2000 that I was seeking their consent to transfer to N Primary School on the basis that it would be feeder school to F. N Primary School and F Comprehensive School are in an area … that is widely known to have a multi-racial population…. This was an extremely important factor when making the decision as to what was best for J as I felt that if he was in a school where there is a greater racial mix, then he would not feel different to other children and he would prosper there.

10. At N Primary School J really made good progress. He is a far happier child now than he was when he was at A Primary.

12. The Authority argue that C Comprehensive School and S Comprehensive Schools are appropriate schools for J, they clearly are not. A Primary School is the feeder school to S Comprehensive School. I believe that not only is S over-subscribed in J's particular year group, it is also clearly inappropriate for the reasons above given. S is a … School in an area predominantly white and therefore there are very few black or other children of mixed origins".

19. In a statement made on 25^th August a Mr. Michael Matthews, a Principal Officer in the School Services Section of the Council said this:

"2. On Friday 25^th August, I had a conversation with Ms Lesley Lee, the school's admissions tutor at S School. She confirmed that J was still on the list of pupils to be admitted to S School in September."

20. In a statement made on 29 August by the Head Teacher of A primary School she said:

"2. The applications by parents for places at secondary schools are made in September or October of the year prior to the year in which admission is required. This means that J's parents would have made application for a place for J for secondary school in September or October 1999.

3. In June of each year I meet with Ms Lesley Lee, the school admissions tutor for S school. I had this meeting in June of this year. Together we went through the pupils from A Primary School who were on her admission list, and I can confirm that J was on this list."

21. There then followed on 30 August the hearing in front of Elias J.. He gave leave to amend the Form 86A so as to permit a challenge to the Authority's decision not to pay for transport to F secondary school. The argument before him was primarily about the suitability or otherwise of S school for J. There was no suggestion at that point on the pleadings, even as proposed to be amended, that there was no room for J at S school. The two statements dated 25^th and 29^th August which touched on this point were therefore, in the event, not placed before the judge : they did not help on the question of suitability. We have admitted them because that was the main matter argued before us.
22. The judge decided that the Authority were entitled to come to the view that S school was a suitable school for J and that therefore the Authority were not obliged to pay for transport to F school. He said this.

"10. In some respects it might have been desirable if it had been possible to adjourn this matter for further evidence to be given as to precisely why the Council considered these schools to be appropriate, but both parties were understandably very reluctant to adjourn at this stage. That does mean, however, that it seems to me that insofar as Mr. Walters (Counsel for the applicant) occasionally floated arguments about the way in which the Council reached their decision, that S and [another school suggested by the LEA] were suitable schools, I am not really in a position to deal with those arguments, since I have no evidence of how the Council approached that matter.

22. … Mr Williams points out for the Council, that nowhere does Mr Street, the consultant psychologist state that it is desirable that the applicant should be educated at a school where there is a significant mix of races or a significant ethnic minority presence, nor do I think it fair to suggest that that is an inference that can be drawn from this report. There are many various and different ways in which, it seems to me, the difficulties of someone like the Applicant, with a lack of self confidence and with a strong perception of his own racial identity may be dealt with, without them necessarily having to be dealt with in the context of a multiracial school.

23. The GP is more specific in saying that it is his view that the child needs to be in a multi-racial school, but without any disrespect at all to the GP concerned, it is, I think, fair to say that this is not a matter in which GP's would have any special expertise, and there is no comment from the specialist clinical psychologist dealing with this observation of the GP. No doubt this observation of the GP is a matter that the Authority ought to bear in mind but, in my view, it would not of itself be sufficient to compel the conclusion that the only proper school would be one which is a multi-racial school.

24. Mr. Walters says that the applicant's experience at the A School shows that the only appropriate school is a multi-racial one. He says, indeed, on the respondent's own case, that they say there were proper procedures in place effectively enforced and, notwithstanding that, the applicant was miserable and bullying occurred. Accordingly, he says, even if [the other school suggested by the LEA] or S have similar procedures and enforcement, the problems will be bound to continue.

25. It seems to me that there are really two assumptions in the argument that the difficulties found at the A School will be replicated at the secondary school. The first is that the problems will remain the same [as] at the primary school. In my view, that is not a necessary or justifiable inference. It is true to say that they might, but there is every reason to suppose that the way in which the applicant relates to children at the new school may be quite different from the way in which he did at the A School.

26. It is true in relation to S, which takes children from the A School, that there will be a number of children from the A School who will attend S. As I have indicated, there will also be a significant influx of new pupils and relationships may well change very fundamentally in an entirely different environment; a fortiori that is the case at the [other] School where the intake is even greater and where fewer of the children from the A Primary School will attend.

27. The second assumption is that, even if there are problems arising, they could not be dealt with satisfactorily by either of the secondary schools. Again, I do not think this is an inference that is the only reasonable inference to draw. The environment will be different; there will be different personalities involved in dealing with difficulties that arise; there is no continuing history which can sometimes make it more difficult, even for effective procedures to operate satisfactory and which might prevent the parties dealing with difficulties in a constructive way.

28. Accordingly, I am not prepared to assume that the difficulties experienced at the A School would necessarily arise in the same way at all at either of the secondary schools which the Council considers to be suitable.

29. That leaves the question whether these schools are unsuitable purely by virtue of not being multi-racial. That is not to say that they have no pupils from ethnic minorities, but it is common ground that it is significantly fewer than would be the case at the F School.

30. In my view, I do not consider that the evidence is such as to lead an Authority inevitably to the conclusion that the only proper school is a multi-racial school."

23. So the judge dismissed the application for judicial review. It is however necessary that we record an exchange (as recorded by the transcript writer) between counsel for the Authority and the Judge.
24. Counsel said:

"There is in fact a place for J at S School, he not having been removed from the list at A Road Primary, which is the feeder school for S School. His name appears on the list. A place is available for him at this moment. How long that will remain the case after September, I do not know. Clearly that place would have to be filled."

25. A little later, counsel said:

"In the light of the evidence which has been made available, the Authority has had time to consider the application in relation to F School. Were, clearly, other evidence to be adduced, which it is not going to be , then that would change matters. But nothing is to be gained by, for instance, I would imagine, because J has not been to the school and is not apparently going to go to the school -- getting details of the precise racial mix of School and the policies which it has in place, and have effective evidence of how effective those policies are when implemented. I say S School, because that is the school at which he currently has a place."

The secondary school : is there a place for J

26. The applicant's solicitors then considered changing the focus of their attack. Previously, their case had been that, although there was a place at S school for J that school was unsuitable because it was not sufficiently multi-racial. Having lost on that point before the judge they investigated whether, the applicant having meanwhile been started term at F school he might have lost his place at S School. It is this change of focus which made relevant the two statements dated 25^th and 29^th of August to which I have referred.
27. On 5th September 2000 they wrote to the Deputy Head Teacher at S as follows:

"I understand that you were going to check your records in order to ascertain whether J had a place at your school for the current school term.

I have spoken with Mrs. F [J's mother] who tells me that she spoke with you yesterday. I understand that J was not on your register, and did not have a place. You invited however Mrs. F to attend your school, but could not, and I can quite understand this in the circumstances, guarantee a place for him.

.................. Could you please confirm as a matter of urgency, the following:-

1. Was J on the register at your school as an expected pupil?

2. Is your school currently over-subscribed in this year group?

Our client needs to know this as she is considering whether there is a place at S and if so whether to send her son there. The local Authority will not pay for transportation to F Comprehensive School who are prepared to admit this boy".

28. To this the Deputy Head Teacher replied by fax on the same day:

"I confirm that we were not expecting J to take up a place at our school as we understand that he had accepted a place at F. This expectation was reinforced by J's attendance at N. S is over-subscribed in J's year group.

In response to your enquiries about the racial mix of S School (statistics show) the school population to be 97.5% white and 0.1% black/Caribbean."

29. On 9. September the applicant filed draft grounds of appeal the first paragraph of which asserted, inter alia, that there was no place for the applicant at S school.
30. On 19th October 2000 Sedley L.J. adjourning the paper application for permission to appeal said:

"A school which is not available cannot be suitable. If so, J's need for transport to F needs to be considered afresh".

31. On 3rd November 2000 the Director of Learning and Development at the Council wrote to the Head Teacher at S School. A letter which included the following:

"The Department was clearly under the impression from conversations with Mrs. Lesley Lee on 29th August 200 [sic] that J was still on the entry list for S School, irrespective of whether that place was to be taken up by him or not.... The solicitors acting for J are claiming that the above information is incorrect and that the Courts have been misled when arriving at their decision. The Department has to respond as a matter of urgency on this matter and requires urgent clarification in writing from yourselves to the points referred to below.

(1) At the time of the hearing was J still on the entry list for S School. If not would you please indicate when he would have been taken off?

(2) If he was; that a place would have been available for him if his parents wished to take that place up.

(3) Is there a place available at present for J ?"

32. On 6. November the Head Teacher replied:

"With regards to the first and third questions, J was not on the entry list for S School at the time of the hearing and the relevant year group is oversubscribed. Consequently, if an application for admission is made, I believe that it would be unsuccessful. With regards to your second question, J was not on the list.

I reject the allegation that there were conversations on 29th August from which the school could have given your Department the clear impression that J was on the entry list for S School. J is not, has not been, and we did not expect him to be a pupil at S School."

33. On 10th November 2000 the Deputy head teacher of S School wrote to the applicant's solicitors:

"As far as I am aware the circumstances relating to this matter remain unchanged from my letter of 5th September 2000".

34. Thereafter the Authority wrote to the applicant's solicitors on 14 November 2000.

"The local Authority is keen to have as much information as possible to take the decision regarding transport. You will recall that there is some difference of opinion between your client's General Practitioner and Eddie Street with regard to J's needs. The local Authority would wish to approach Mr. Street to ask him to comment on your client's G.P.'s views. I would be grateful if you could confirm that you have no objection to me doing this".

35. On 14 December the adjourned application for permission to appeal came before Buxton LJ and myself and we granted permission on condition that the application for judicial review and the draft notice of appeal be re-amended so as to make clear that it was alleged that a basis of the application was that there was no place for J at the S school. This has now been done.
36. There then followed a long exchange of correspondence the upshot of which was that the applicant's solicitors imposed conditions upon the manner in which the Council could approach Mr. Street and the Council was not prepared to abide those conditions. So Mr. Street has not been approached.
37. The evidence is not crystal clear. This is in part the result of badly written letters, absence of clear statements and, we understand, general tension between the headteacher of S school and the Authority. No doubt the headteacher was thoroughly fed up with having all these problems in respect of the child flung at him right at the beginning of term.
38. It appears from the material which I have recited that J's parents applied in the autumn of 1999 for him to be given a place at S school the following September. At that time J was at A primary which was a feeder school for S school. He then left A primary and went to N primary. N primary was the feeder school for F school. The parents thereafter applied to F school for him to be admitted there. By July 2000 he had been offered a place at F school but there remained outstanding the question whether the Authority could be compelled to pay for transport to that school and what the parents attitude would be if the Authority could not be compelled to pay for transport. While that question remained unresolved the parents did not withdraw their application to S school that he should be admitted there. Indeed I have no reason to believe that they have ever done so. On 25 August he was still on that school's list of pupils to be admitted in September. So apparently on that date he was on two schools' lists for admission. By 30 August he was no longer on S school's list. Whether, had his parents applied on 31 August for his admission to S school that term he would (perhaps after an appeal process) have been accepted is not known. It seems that the parents at least since July 2000 have wished him to stay at F school whether or not the Authority pays for his transport. In any event he is still attending that school.

The relief sought

39. The applicant seeks an order of mandamus to compel the LEA to provide free school transport for him to F school alternatively an order of certiorari to quash the decision of 1 August to refuse to provide free transport.

The issues

40. At the forefront of his submissions Mr Friel placed submissions in relation to the availability of a place for J at S school. However, he also in effect repeated the submission that S the LEA did not lawfully come to the view that S school was appropriate for J. This submission was based on the contention which had been argued before the judge that S school was inappropriate for this child because of the racial mix of the school and because some of its pupils in the relevant year would come from A school and might well be the very ones who had bullied J in the past.
41. Mr Friel submitted that the LEA had never properly considered J's medical evidence. The argument had originally been about whether to pay for transport to N primary school. At the time of the decision to refuse to do that the letter from the GP had not been placed before the Authority. On the material which it then had before it, as it seems to me, the LEA was then amply entitled to form the view that A school was sufficiently suitable for J for the Authority not to be obliged to move him to another school.
42. By the time the decision was taken on 1 August 2000 that S school was suitable for J the LEA had been provided with the GPs letter which indicated that, as at 7 February 2000, J needed to be in a multi-racial school where he would not stand out from other children. Mr Ahmad's letter of 10 July was not addressed to the suitability of S school which at that stage was not the issue in these proceedings. He however suggests that the GP's comments are open to question. The Authority's solicitor on 1 August goes on to say that no suggestion had ever been made that S school was not suitable. While this is arguably strictly correct I can understand that J's mother feels that her objections in principle to a (practically) exclusively white school had perhaps not been understood and in any event had not been carefully weighed by the Authority.
43. It may be this aspect which led the judge to the comments which he made in paragraph 10 of his judgment which I have cited to the effect that it would have been desirable if it had been possible to adjourn the case for further evidence. However Mr Friel argues that there was sufficient material before the judge to enable him to form the view that the Authority had not approached the matter properly. The fact that the Authority might be able to lead evidence to rebut that prima facie case should not have led the judge to reject it. The Authority by choosing not to ask for an adjournment must be taken to be content to have the case judged on the basis of the material which was before the judge.
44. This submission is not without force. Although the judge says, in my view correctly, that it is not a necessary inference that the problems experienced at A school will be replicated at S school or that, if they did reoccur, they could not be dealt with, that comment is no response to a submission that these are possible inferences and that it was for the authority to consider whether to draw them.
45. However, there was pressure on the judge to reach a conclusion fast. Term was about to start. Further delay while further examinations of the child took place would clearly have disadvantages from the point of view of the child particularly if it involved the possibility of changing secondary schools shortly after the beginning of term. The judge went so far as to say in paragraph 25 of his judgment that the assumption that the problems would be the same at S as they had been at A was not a justifiable inference. It is perhaps a borderline case but the material which, perhaps, was not properly considered by the authority is so meagre and the points which the judge makes in the paragraphs of his judgment which I have quoted so telling that I consider that the judge was entitled to proceed as he did and to reach the conclusion that the LEA's decision that S school was suitable should not be quashed by the court.
46. That brings me to consider Mr Friel's main point in relation to the availability of places. So far as the decision dated 1 August is concerned it seems to me that there is ample evidence that, as at that date and indeed on 25 August, S school was prepared to take J in the autumn term. I would therefore not quash that decision.
47. That leaves outstanding the application for mandamus which was before the judge. He was told that there was a place available for J at S School for the next term. On that basis the judge's refusal to make the order sought was clearly justified.
48. Mr Friel submits that the judge was misled and that at the 30 August, the date of his judgment, there no longer was a place for J at S school. Certainly the letter of the 6^th November from the head teacher of S school indicates that J was not on the "entry list" for S school on 30 August. However, whether this fact would have necessarily prevented J from being accepted at S school had his parents wished this does not appear. The fact is that J's parents have not before us, the judge, or indeed at any time after July 2000 indicated any wish to have J placed at S school even if the Authority would not pay for his transport to F school. That is an understandable and responsible attitude for the parents to take. It has as its corollary that the LEA and S school felt free to give his place to another child. That is equally understandable and a responsible use of resources.
49. Yet Mr Friel submits that, although the applicant's family, in the knowledge that the LEA had a place for him at the suitable S school and was refusing to pay for his transport to F school, sent him to F school they can still obtain an order from the court that the LEA is obliged to pay for the child's transport to F school.
50. The powers of the LEA in relation to the payment for transport are now contained in Section 509 of the Education Act 1996:

(1) "A Local Education Authority shall make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct, for the purpose facilitating the attendance of persons receiving education -

(a) at schools

(2) any transport provided in pursuant of arrangements under subsection (1) shall be provided free of charge."

51. Although this provision appears to give the widest of discretions to the LEA the case law indicates that there are constraints.
52. Mr Friel relies on R v Devon County Council, ex parte George [1989] 1 A.C. 574. In that case the child lived 2.8 miles from his school. The LEA refused to provide the transport costs and their refusal was upheld by the House of Lords. Lord Keith of Kinkel, delivering the only reasoned speech, said obiter at page 604 in relation to pupils outside walking distance,

"In the case of such pupils a local education authority would be acting unreasonably if it decided that free transport was unnecessary for the purpose of promoting their attendance at school, because if it were not provided the parents of these pupils would be under no legal obligation to secure their attendance."

53. He said at page 605, again obiter

"The intention of Parliament clearly was that pupils living outside the statutory walking distance would in all cases be provided with free transport …"

54. In relation to the case in front of him, which concerned a child within what statute defined as walking distance, the House was faced with an submission by Mr Friel that "facilitating" in the earlier equivalent statutory provision meant "making easier" and therefore the LEA was obliged to do anything which made easier the attendance of pupils at their place of education. Lord Keith said:

"Obviously free transport will make the attendance of every such pupil easier, however close to school he or she happens to live. But that can not determine the matter. It is for the authority, and no one else, to decide whether free transport is really needed for the purpose of promoting the attendance at school of a particular pupil."

55. It was held that the Authority, having lawfully reached the decision that it was not satisfied that it would not be reasonably practical for a parent to accompany the child to school, was not obliged to pay for transport.
56. It has not been contended that the obiter dicta represent the law. Nor, I would respectfully think, could they, taken literally. Otherwise a parent who chose, perfectly lawfully, to send his child to a school 50 miles away would automatically be entitled to the child's free transport thither.
57. The importance of George's case is that it sets out the link between the section enabling the LEA to pay for transport and the section obliging parents to educate their children. The latter is now contained in section 444 of the Education Act 1996:

"(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(4) The child shall not be taken to have failed to attend regularly at the school if the parent proves -

(a) that the school at which the child is a registered pupil is not within walking distance of the child's home, and

(b) that no suitable arrangements have been made by the Local Education Authority ..... for any of the following -

(i) his transport to and from the school,

(ii)........, or

(iii) enabling him to become a registered pupil at a school nearer to his home.

58. It appears from George's case that, if a parent would have a defence to a truancy charge then it will be unreasonable for a LEA to refuse to pay the transport costs to the school from which he is playing truant.
59. George's case however was not concerned with the present problem which has arisen because of a parent's rejection of a suitable school and their sending the child to a school outside walking distance. Looking at the position as it was up to 25 August at any rate, the Authority would properly conclude that it had made suitable arrangements for enabling J to become a registered pupil at a school nearer to his home, namely S school. There was no reason for the Authority to suppose that, should the child fail to attend either that school or, say, F school, then his parents would have a defence to a prosecution under s.144.
60. However, now and as at the time of judgment, submits Mr Friel, the position is different. If J had failed to attend regularly at F school in December 2000 the parents could not have been successfully prosecuted under s. 444 because they would have been able to run the defence that the Authority had not made suitable arrangements enabling him to become a registered pupil at S school.
61. This way of approaching the matter conceals the true question before the court. The LEA is only obliged by section 509 (1) of the Act to "make such arrangements .... as they consider necessary". I would accept that circumstances can arise in which it would be perverse of an Authority to come to the conclusion that it was not necessary to make such arrangements and the Court, or the Secretarty of State under section 496 of the Act, might order them to do so. It might be, for instance, that a parent was in a financial position to pay for the bus fares to a distant school at the time that the offer of a nearer school was turned down that thereafter his financial circumstances changed and he was no longer in such a position. Suppose he then went tot he LEA and explained his predicament yet the Authority, although it was not in a position to offer a place at a nearer suitable school, refused to pay relying on arrangements which it had made previously and which he had then rejected. In such circumstances, unless the Authority made arrangements for the child's transport the child would not be able to get to school. One must not forget that these provisions are primarily enacted for the benefit of children and in circumstances such as those which I have posited it might well be unreasonable for the Authority to refuse to make arrangements for transport to the distant school, at any rate until a place could be found at a suitable school nearer home. If the Authority did not make such arrangements and the child did not attend school but instead prosecuted the parent then the parent would in principle be able to rely on the defence in section 444 (4) (b).
62. However, in the present case it seems to me the Authority were fully entitled to reach the conclusion that it was not necessary to make arrangements for getting J to school and are entitled, as things stand, to adhere to that view. They had offered a place at a suitable school nearby but the parents had, perfectly reasonably, refused to take this place up. The result of the refusal of that offer has not been to deprive the child of his schooling or to lay the parents open to prosecution. On the contrary we understand the child is happy at the school and there is no reason to suppose that he does not attend regularly. In those circumstances it is far from perverse for the Authority to refuse to make transport arrangements.
63. I would dismiss this appeal.
64. SIR CHRISTOPHER STAUGHTON:

As to the first issue, whether the S school is suitable for J despite its very limited ethnic mix, I agree that it is. I reach that conclusion for the same reasons as those given by Elias J and Schiemann LJ, subject to one point. I do not regard it as self-evident that in any and all circumstances a doctor in general practice is less qualified than a consultant clinical psychologist to say which school a child should go to. Or at any rate I could not say that the doctor had no qualification to express a view on that point. Quite recently there was an appeal about whether a lady had the necessary capacity to sign an enduring power of attorney, and we preferred the doctor's evidence about his patient to that of an expert brought in for the purpose

Nevertheless I agree, as I have said, that the Council could properly regard the S school as suitable for J, on the grounds relied on by my colleagues.

Then there is the second issue, whether the S school was unsuitable because no place was available. Some points are clear. First the Council would almost certainly have made arrangements for J to go to the S school if his parents had supported that course consistently from September or October 1999 onwards.

Secondly, from as early as 25th January 2000 the local authority were aware that J's mother wished him to go to the F comprehensive school, and therefore not to the S school.

Thirdly, the availability of a place for J at the S school only became a matter of significance, in this litigation, at the earliest in August 2000. It would not surprise me if any place which was previously available for J had by then been allocated to another.

Fourthly, if a place had still been available in August 2000 it would not have been accepted by J's parents on his behalf. If the situation has changed since, no doubt it can be reconsidered.

65. I agree that this appeal must be dismissed.
66. LORD JUSTICE CHADWICK : I also agree
ORDER: Appeal dismissed; section II order against the Legal Services Commission; Community Legal Services Regulation assessment; permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)