England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 June 2004

Mr Justice Collins:

1. This claim concerns the obligations of a local authority to provide transport for children who attend a school which is more than the statutory walking distance (3 miles in the case of a child aged 8 or over) from home. Permission was granted by Hooper J following an initial refusal on the papers by Harrison J. Hooper J directed that an agreed statement of facts should be prepared and that the issues to be decided should be set out.

2. A statement of facts and issues has been agreed between counsel. It is convenient to set it out in full since it defines the issues against an agreed factual background.

"The Facts.

1. This case arises from a dispute as to whether the Defendant is under a duty, arising under section 509 of the Education Act 1996, to provide the Claimants with free school transport to the school which they currently attend. The Defendant refused to do so, and the Claimants' appeal to a non-statutory Transport Appeal Panel established by the Defendant were unsuccessful. The Panel's decision letters in the cases of these Claimants are attached to this Statement of Facts and Issues.

2. The Claimants attend Ysgol Preseli (Preseli), a secondary school situated in the area of, and maintained by, Pembrokeshire County Council. The Claimants Byron Rees and Aled James are in their 1^st year of secondary education, the Claimant Matthew Jones is in his second year of secondary education. They each live in the Defendant's area. It is therefore the Defendant which is the public authority responsible for any relevant transport obligations which may exist.

3. The Claimants attend Preseli as the result of a preference expressed by their parents under section 86 of the Schools Standards and Framework Act 1998.

4. There had been until July 2003 a practice whereby Pembrokeshire County Council had allowed the Claimants to travel to Preseli School on transport arranged and funded by Pembrokeshire.

5. However Pembrokeshire changed their policy in July 2003 to one where any spare seats on their transport could be occupied by Ceredigon children only if the Defendant were prepared to fund the cost.

6. The Claimants could in principle take up places at either of two secondary schools in the Defendant's area and maintained by it, namely Dyffryn Teifi School ("Dyffryn Teifi"), and Cardigan Secondary School ("Cardigan"). Subject to the Claimant's points concerning the unsuitability of the school itself (see paragraph 9 below), there is no issue as to the suitability of the arrangements made for the Claimants to attend Cardigan, permission for a challenge on that ground having been refused.

7. Dyffryn Teifi and Preseli are both Welsh medium schools, Cardigan is an English medium school.

8. Cardigan is the nearest secondary school to the Claimants' homes, and is within the "statutory walking distance" of 3 miles. Preseli is approximately 8 miles from the Claimants' homes. Dyffryn Teifi is approximately 18 miles from the Claimants' homes. If the Claimants attended Dyffryn Teifi, free transport would be provided by the Defendant, which already operates a bus service to that school.

9. It is common ground that both Dyffryn Teifi and Preseli are suitable schools which can meet the Claimants' educational needs. However, the Defendant accepts (because its Transport Appeal Panel has so decided) that Cardigan is not a suitable school for the Claimants to attend as it is not a Welsh medium school.

10. It is therefore common ground that the nearest suitable school to the Claimants' homes is Preseli.

11. The Transport Appeal Panel decided that there was no duty upon the Defendant to provide free transport to Preseli for the Claimants pursuant to section 509(1) of the 1996 Act, because it was unnecessary for the Defendant to do so. The judgment of the Panel was that the Claimants could reasonably be expected to take up places at Dyffryn Teifi, and to travel to that school. The Claimants do not challenge that factual judgment by the Panel.

12. The Panel further decided that the Defendant should not provide free transport for the Claimants to Preseli by way of an exercise of discretion under section 509(3) of the 1996 Act. The Claimants do not challenge that exercise of discretion.

13. The Claimants seek to quash the Panel's decisions on the sole basis that:

(i) As a matter of law, a local education authority is always bound to conclude that it is necessary to provide free transport to a pupil under section 509(1) of the 1996 Act, if that pupil's parents would otherwise have a defence under section 444(4) of the 1996 Act to a prosecution under section 444, in the event of the pupil failing to attend regularly at school; and

(ii) The Claimants' parents would have such a defence in this case, because Preseli is the nearest suitable school, and accordingly the Defendant has not made suitable arrangements for enabling the Claimants to become registered pupils at a school nearer to their homes than Preseli, and so the relevant provision, namely section 444(4)(b)(iii), would not be satisfied.

14. The defendant disputes the proposition of law set out in paragraph 13(i) above. Even if that proposition of law is correct, the Defendant disputes the correctness of the proposition set out in paragraph 13(ii) above, on the basis that section 444(4)(b)(iii) of the 1996 Act may be satisfied regardless of the suitability of the nearer school. Accordingly, it suffices that suitable arrangements have been made for the Claimants to attend Cardigan, should they choose to do so.

The Issues

15. Issue 1: Is a local education authority always bound to conclude that it is necessary to provide free transport to a pupil under section 509(1) of the Education Act 1996, if that pupil's parents would otherwise have a defence under section 444(4) of the 1996 Act to a prosecution under section 444, in the event of the pupil failing to attend regularly at school?

16. Issue 2: On the proper construction of section 444(4)(b)(iii) of the Education Act 1996, is it possible for a local education authority to have made suitable arrangements for a child to become a registered pupil at a school, if that school would not be educationally suitable for the child concerned?

17. Issue 3: If the answer to Issue 2 is "no", then is the test of the school's suitability for the purposes of section 444(4)(b)(iii): -

(a) Whether (as the Claimants submit) it is suitable in the ordinary sense of the word; or

(b) Whether (as the Defendant submits) it is suitable in the specific sense provided for by section 7 of the Education Act 1996, namely that it is efficient full-time education suitable to the child's age, ability and aptitude and to any special educational needs he may have.

If the answer to Issue 1 is "no", or if the answer to Issue 2 is "yes", then the Claimants' application for judicial review falls to be dismissed. If the answers to Issues 1 and 1 and "yes" and "no\" respectively, then the Claimants' application for judicial review succeeds, and the Defendant's refusal to provide transport will be quashed. In that event, if the answer to Issue 3 is "(a)", then the Claimants are entitled to be provided with free transport to Preseli School; if the answer to Issue 3 is "(b)", then the Defendant submits that the matter must be remitted to the Defendant to apply the appropriate test".

1. Annexed to the statement is the determination of the Home to School Appeal Panel of the defendant of 24 September 2003. I do not think it is necessary to set it out since its material findings are summarised in the agreed statement. The significant facts are that Preseli, albeit in Pembrokeshire, is considerably nearer to the claimants' home than Dyffryn Teifi, the other Welsh medium school. The panel concluded that the nearest school, Cardigan, was not suitable for the claimant because it was an English rather than a Welsh school.
2. An affirmative answer to the question raised in the first issue has been given by judges from first instance to the House of Lords in the course of the last 50 years. Despite this, Mr. Giffin Q.C. has submitted that in none of the cases has the point been argued. It was conceded in the first case, Surrey County Council v Ministry of Education [1953] 1 W.L.R. 516, a decision of Lynskey J, and thereafter was assumed without argument to represent the true construction of the relevant statutory provisions. This means, submits Mr Giffin, that none of the cases can be said to amount to a binding authority. He relies in support of this submission on Re Hetherington [1990] Ch 1 in which Browne-Wilkinson, V.C. said this (at p.10G): -

"In my judgment the authorities clearly establish that even where a decision of a point of law in a particular sense was essential to an earlier decision of a superior court, but that superior court merely assumed the correctness of the law on a particular issue, a judge in a later case is not bound to hold that the law is decided in that sense".

Mr. Giffin further submits that neither the length of time over which the assumption has been made nor the number of cases which have applied it can prevent the issue being reconsidered and should not deter a judge from reaching a different conclusion if persuaded after hearing full argument that that conclusion is correct. Here, Mr Giffin prays in aid the recent decision of the Court of Appeal in Dunnachie v Kingston upon Hull CC [2004] IRLR 287 in which the majority overturned an assumption which had been acted on for some 32 years and approved both in the Court of Appeal and the House of Lords.

3. Nonetheless, the submission is a bold one, particularly as Parliament has passed a considerable number of Education Acts since 1953 in the knowledge that the assumption exists but has not made any material changes to the relevant statutory language. While Parliamentary inactivity is not determinative, it is clearly relevant. Furthermore, I should not go against the accepted construction unless persuaded that it is wrong.
4. The starting point is the statutory provisions. Section 509 of the Education Act 1996 (the 1996 Act), the side note to which reads 'Provision of transport etc'; provides, so far as material: -

"(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 of facilitating the attendance of persons … receiving education –

(a) at schools …

(2) Any transport provided in pursuance of arrangements under subsection (1) … shall be provided free of charge.

(3) A local education authority may pay the whole or any part, as they think fit, of the reasonable travelling expenses of any person … receiving education … at a school … for whose transport no arrangements are made under [subsection (1)].

(4) In considering whether or not they are required by subsection (1) … to make arrangements in relation to a particular person, a local education authority shall have regard (amongst other things) –

(a) to the age of the person and the nature of the route, or alternative routes, which he could reasonably be expected to take; and

(b) to any wish of his parents for him to be provided with education at a school at which the religious education … provided is that of the religion or denomination to which his parent adheres".

Section 444, which imposes penalties on parents whose children fail to attend school regularly, is also relevant. Apart from the obvious defences (absence with leave or due to illness or for religious reasons), s.444 (4) provides: -

"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 registered 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) boarding arrangements for him at or near the school, or

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

This subsection (or its predecessor in the Education Act 1944) is what has led to the linkage between the obligation to provide school transport and what may be called the truancy provisions.

5. Surrey CC v Ministry of Education (supra) concerned a scheme by Surrey whereby for those who lived more than the walking distance from a school, only transport from their homes to the walking distance would be free. The scheme failed because transport has to be to and from school. At [1953] 1 W.L.R. 521, Lynskey J said this: -

"The case put forward on behalf of the minister is that, if section 55 [the predecessor of s.509] stood alone, and apart from anything else in the Act, that [i.e. the council's case] is a possible construction and a possible view; but it is argued that if that view is adopted it will result in a scheme which will not prevent the parent from taking advantage of the provisions of s.39(2)(c) [now s.444(4)(b)] if proceedings are taken against him for truancy; and it is said that a scheme with such results is obviously not a suitable arrangement within the words of s.55. Mr. Williams [counsel for Surrey] agreed that if the scheme would leave it open to the parent of a child residing outside the three-mile radius to take advantage of that excuse, it would not be considered a proper scheme within the meaning of section 55".

6. The argument which Mr. Williams conceded to be correct was raised by his opponent. It is obvious from the judgment that Lynsley J considered it to be correct and there can be no doubt that he would have so decided if it had been challenged. We do not know how the argument developed or whether Mr. Williams' concession was wrung from him. A concession following argument cannot in my view be regarded as rendering the conclusion of no weight. I do not think it is right to regard the Surrey case as having been decided without argument and on the basis of a concession alone.
7. In George v Devon CC [1987] A.C. 573, Lord Keith, in observations which were not part of the ratio decidendi, but which cannot in my view be simply brushed aside on that ground, made it clear that he accepted and approved of the decision in the Surrey case (see p.601E-G). At p.604B he said:-

"It is section 55(1) under which a local education authority provides free transport to and from school for pupils who reside outside the statutory 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 providing 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".

8. It is true that counsel for the local authority accepted an argument that 'the provisions of s.39(2)(c) conclusively determine the necessity for making arrangements under s.55(1) in an outside-walking-distance case'. That concession followed previous decisions of the Court of Appeal and accepted the correctness of the Surrey approach. And its correctness was accepted by the House of Lords. More recently, in R v Vale of Glamorgan CC ex p J [2001] ELR 758 (a case to which I shall have to return in considering the second issue) Schiemann LJ said this (Paragraph 57 on p.770): -

"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".

He then refers to s.444 and continues: -

"It appears from [George's case] that, if a parent would have a defence to a truancy charge then it will be unreasonable for an LEA to refuse to pay the transport costs to the school from which he is playing truant".

9. Mr. Giffin points out that s.444 is now very much a provision of last resort. It will not normally be used since education supervision orders, which were introduced by s.36 of and Schedule 3 to the Education Act 1989, provide a much more appropriate means of ensuring that a child does not truant. It is increasingly anomalous to have the answer to the question whether transport should be provided driven by an artificial consideration whether there may be a defence to a prosecution which is very unlikely to ensue. Mr. Giffin points to anomalies which will result if the link is maintained. I am unimpressed with the anomalies argument; they are bound to occur when an artificial line is drawn as it is with the statutory walking-distance.
10. Parliament has not repealed s.444. It remains a sanction which is still thought to be necessary. I see no reason to doubt the sense of requiring that transport be made available if otherwise a sanction against truancy would be unenforceable. Section 444(4)(b) clearly recognises that there is a link between that section and the provision of transport. The fact that prosecutions may not be brought is nothing to the point. It is the theoretical possibility rather than the actual probability that is relevant. I am accordingly not persuaded that the construction which has been accepted as correct for the last 50 years is wrong. The answer to the question posed in the first issue remains yes.
11. The second issue raises a question which is not so easily answered since conflicting views have been expressed in the Court of Appeal and at first instance. Mr. Giffin submits that there is only one Court of Appeal case in which the ratio decidendi establishes that the answer must be yes. This is because the adjective 'suitable' in s.444(4)(b)(iii) governs the arrangements and not the school and that is what the Court of Appeal said was the correct construction in Re S [1995] E.L.R. 98. That case was not decided per incuriam (the contrary has not been submitted by Mr. Bowen) and the conclusion was reached following full argument on the point. So, submits Mr. Giffin, I am bound by that decision and must apply it. Indeed, he points out that in an unreported case, R v Bedfordshire CC ex p DE (CO/3921/95 1 July 1996), I decided that the relevant conclusion in Re S was part of the ratio and was thus binding, although I went on to criticise the reasoning of the court in Re S and was myself no doubt properly criticised for doing so by the Court of Appeal.
12. By the time Re S came to be decided, there were conflicting first instance decisions. One of these had gone to the Court of Appeal: see Re C (a minor) [1994] E.L.R. 273. The issue in that case was whether a school which was not that of parental choice could be regarded as suitable or, to put it the other way round, whether free transport had to be provided where a parent had chosen a school which was not the nearest to the child's home and that choice had been accepted by the local education authority. At p.276D, Staughton LJ said: -

"The County Council have two alternative points … First they say that under s.39(2)(c) it is the arrangements that have to be suitable, not the school nearest home. Presumably they would say, in a case which involved either of the other two choices in that paragraph [i.e. what are now s.444(4)(b)(i) and (ii)] that the transport or the boarding accommodation does not have to be suitable, but only the arrangements.

That argument appealed to Rose J in R v East Sussex CC ex p D [1991] 15 March (unreported) and to Jowitt J in the present case, but not to Roch J R v Rochdale Metropolitan BC ex p Schemet [1994] E.L.R. 89. It does not appeal to me. Arrangements for unsuitable transport, or unsuitable boarding accommodation or an unsuitable school nearer home, are in my judgment unsuitable arrangements. I cannot elaborate the point further than that".

While Steyn LJ and Russell LJ did not expressly deal with that point, it is to be noted that at p.229D, Steyn LJ said: -

"… In my view s.39(2)(c) … contemplated that a local education authority is entitled to make arrangements for a child registered at one school to become a registered pupil at another suitable school nearer home … An acceptance of the appellants' argument would emasculate the local education authority's power under s.39(2)(c) to nominate an objectively suitable school nearer the child's home".

Russell LJ at p.280G said: -

"… I cannot believe that parliament intended that a parent could always demand free transport irrespective of the distance involved and irrespective of an equally suitable educational establishment nearer to the child's home".

13. Re S was to an extent the corollary to the present case since it involved children whose parents wanted them to go to English medium schools in Wales. The argument with which the Court was dealing was that the objective suitability of the nearer school had to be considered by the court on judicial review. Alternatively, it was argued that it was perverse of the LEA to decide that the Welsh school was suitable. Butler-Sloss LJ gave the only reasoned judgment. On p.104, having cited the passage from the judgment of Staughton LJ in Re C, she said that it was not a necessary part of the decision and it was unclear how far Steyn and Russell LJJ agreed with it. She went on: -

"In any event, I am clearly of the view that it was wrong and 'suitable' relates to the arrangements and not to the school. There is a distinction to be drawn between the objective suitability of the school which a child attends or may attend and the practical arrangements for the child's attendance which may include the provision of free transport, boarding accommodation or enabling the child to become a registered pupil at a school nearer to his home within walking distance. Therefore, to take Roch J's example (in ex p Schemet) it would be proper to question the suitability of the accommodation offered to the child".

After referring to parental preference, she continued (at p.104H): -

"It is inconceivable to my mind that Parliament intended the objective suitability of a school to be a defence in a subsection dealing with the lack of suitable arrangements for ensuring the attendance of a pupil. The requirement of considering objective suitability has to be inferred from the subsection and it is a construction which I do not consider it capable of bearing.

Since I do not agree with [counsel's] construction of suitable arrangements it is not strictly necessary to consider the other arguments …"

She concluded that there was no objective unsuitability and that it was not perverse of the LEA to have refused to provide free transport.

14. In R v Kent CC ex p C [1998] E.L.R. 108 McCullough J distinguished Re S and concluded that an LEA 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 his judgment, McCullough J noted the DFE Circular letter of 21 January 1994, which was not amended following the decision in Re S. Paragraphs 19 and 20 read: -

"19. In the light of the analysis in paragraphs 15-18, the Secretary of State considers that section 55(1), read with section 199(4) of the 1993 Act, will always oblige an authority to decide that free transport is necessary for a pupil of compulsory school age if:

a. the child has to travel beyond walking distance to reach the school where he is a registered pupil, and

b. they are unable to make arrangements for him to become a pupil at a 'suitable' school nearer to his home.

The table at Annex C illustrates the occasions when free transport is necessary in accordance with section 55(1) read together with section 199(4) of the 1993 Act.

20. What constitutes a 'suitable' school for these purposes will depend on the circumstances of each case. The Secretary of State considers that, in general, the nearest 'suitable' school for a 5 – 16 year old will be the maintained school closest to his home by the nearest available route which offers an efficient full-time education suitable to his age, ability, aptitude and any special educational needs he may have".

The relevant passage in McCullough J's judgment in which, after citing Butler-Sloss LJ's judgment, he deals with Re S is at pp113-114.

"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'".

15. Mr Giffin suggests that McCullough J has regarded the relevant part of Re S as obiter when in reality it was part of the ratio. I do not think this is correct. He has sought to understand the true ratio and has regarded the case as deciding no more than that the objective suitability of the nearer school was not a matter to be determined by the court, alternatively that the question was whether the local education authority's decision on the suitability of the nearer school was lawfully reached. If I may respectfully say so, it was a gallant attempt to understand a decision which is not altogether easy to follow. Mr. Giffin says that if a LEA were to refuse free transport where the only alternative was an unsuitable school that decision would be struck down on judicial review. How, then, can it sensibly be said that to make arrangements to provide transport to an unsuitable school would be suitable? The basic obligation, which is to be found in a number of sections in the 1996 Act, but which is spelt out in s.7 is that a child should receive: -

"efficient full-time education suitable –

(a) to his age, ability and aptitude, and

(c) to any special educational needs he may have".

It would be inconsistent with this to make arrangements to register a child at a school which was incapable of providing education suitable to his age, ability and aptitude. In particular, it would surely be wrong to register a child with special educational needs at a school which could not accommodate those needs and so avoid an obligation to provide free transport.

16. But the authorities do not stop at Ex p C. The point arose again in R v Vale of Glamorgan County Council ex p J. Elias J at first instance ([2001] E.L.R. 223) followed Ex p C and decided that the LEA could not properly refuse to provide free transport on the basis that there was a nearer school unless that school was suitable, but the LEA's conclusion in relation to suitability could only be challenged on grounds of irrationality. The LEA was to be the arbiter subject only to a Wednesbury challenge. The refusal by Elias J of relief led to an appeal: see [2001] ELR 758. In Paragraph 2 on p.759 of the leading judgment, which was reserved, Schiemann LJ said: -

"An 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 CC ex p C [1998] E.L.R. 108 and the Education Act 1996 ss.411, 444 and 509. The LEA takes the view that there is such a suitable school namely S school. This applicant submits that S school is not suitable".

Since the whole case turned on whether the nearer school could lawfully be regarded as suitable, it is quite impossible to say that suitability was not material. If the court had followed the Re S approach, the appeal would have received short shrift. The report of the case does not show that Re S was specifically referred to: it is certainly not mentioned in the judgment. But it was considered in detail in Ex p C and it is quite impossible to believe that, having taken time to consider their judgments, the court would not have been aware of and considered the decision in Re S. The only sensible conclusion is that the Court in J approved the approach of McCullough and Elias JJ. That is, as it seems to me, binding on me and I have no regret in following it.

17. It is in theory possible that Magistrates Court might have to decide whether a decision on suitability was irrational if a prosecution ensued. Where that was an issue, it is highly unlikely that there would be a prosecution and no doubt in the vast majority of cases judicial review would decide the issue. But Boddington v British Transport Police [1999] 2 AC143 shows that magistrates can decide such issues.
18. Mr Giffin prays the legislative history in aid in support of the construction he submits to be correct following Re S. Compulsory schooling was introduced by the Elementary Education Act 1870, which created School Boards. S.74 empowered the Boards to make bye laws requiring parents to cause children aged between 5 and 13 to attend school. A number of reasonable excuses for not complying included that there was no public elementary school open within 3 miles of the child's home. S.23 of the Education Act 1902 empowered LEAs (which superseded the Boards) to provide vehicles or reasonable travelling expenses. The link with a reasonable excuse for non-attendance was introduced by s.14 of the Education (Administrative Provisions) Act 1907 which provided that where a suitable means of conveyance between home and school was provided by an LEA, there would be no excuse for non-attendance. The 1944 Act introduced the provisions which are now in the 1996 Act. All those show, it is submitted, that suitability was directed not at the school but at the arrangements. But none of this gets over the fundamental point which is that it would not be lawful to seek to register a child at a school known to be unsuitable for him or her. Furthermore, the construction adopted by Staughton LJ and by the Court of Appeal in Ex p C is clearly one which is open on the language of s.444(4)(b)(iii).
19. It follows that the answer to the question posed in the second issue is no. Here, the nearer school (Cardigan) is accepted by the defendant to be unsuitable and so it would clearly not be rational to regard it as suitable. Mr Giffin submits that it is truly anomalous that simply because Dyffryn Teifi, which is clearly suitable, is further away than Preseli, free transport to Preseli must be provided when it would be available to Dyffryn Teifi. I recognise the force of the argument, but anomalies are bound to arise whatever construction is adopted when lines have to be drawn somewhere. It may also be regarded as anomalous that a school which is clearly unsuitable can be used to avoid the need to provide free transport.
20. In the light of the acceptance by the appeal panel that Cardigan is unsuitable, I do not need to decide whether suitability must be judged in educational terms. But it is clear that in this case it has been accepted that Cardigan is unsuitable in those terms and there is obvious sense in applying the test that the Act sets out to judge what is suitable for the child in question. In any event, as I have said, the defendant has accepted, as the agreed facts state, that 'Cardigan is not a suitable school for the claimant to attend as it is not a Welsh medium school'.
21. It follows that the defendant's refusal to provide transport to Preseli must be quashed.