England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LIVERPOOL DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 July 2009

The Honourable Mr. Justice Silber:-

I Introduction

1. Liverpool City Council ("the Council") found that in one area of Central Liverpool there was a vast surplus of places in its secondary schools. It decided to reduce the number of schools in this area from four to three. After extensive consultation (which is not the subject of criticism), it selected one school for closure which had by far the worst academic results and the highest predicted number of vacancies of the four schools. The Council agreed to provide free bus travel for the displaced pupils and their siblings to and from the most similar comparable school, which was also a co-educational and non-faith school. The issue on this application was whether when selecting for closure the school which had by far the worst academic results and the highest predicted number of vacancies of the four schools, the Council failed to comply with its public law obligations by failing to consider properly other relevant matters. Another issue is whether the closure of the school would infringe the claimant's rights under the European Convention of Human Rights ("ECHR").

2. Ms Katrina McDougal ("the claimant") is challenging the legality of the Council's decision made on 13 February 2009 to close Croxteth Community Comprehensive School ("the School") with effect from 31 August 2010. The claimant is a former pupil at the School and a parent of an actual and a potential pupil at the School. She is concerned at the loss of the only mixed non-faith school in the Croxteth and Norris Green areas of Liverpool, which are deprived areas.

3. The Council rejects the claimant's contentions that it failed to comply with its public law obligations and its duties under the ECHR. His Honour Judge Waksman QC ordered a rolled-up permission and substantive hearing. I gave permission and I then proceeded to hear the substantive application.

4. I heard this case in Liverpool and a large number of people connected with the School came to listen to the case. Their presence in such large numbers and the dignified way in which they all listened to the legal submissions was very impressive. I was left in no doubt that many people in the Croxteth area were very troubled by the plans of the Council to close the School. As I hope that they appreciate, my duty is to apply the recognised legal principles which mean that the present hearing cannot be used to appeal the decision of the Council because judicial review is only available in limited circumstances.

5. Indeed Richards J (as he then was) explained in Bradley v The Jockey Club [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips MR. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal:-

"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ."

II The Background

6. The background to this application is that there are four maintained secondary schools serving the area in Liverpool in which the School is situated. Apart from the School, there is in that area Fazakerley High School (which like the School is a co-educational community school), St John Bosco School and De La Salle School, which are respectively girls and boys Catholic Voluntary-aided schools. In common with many other local education authorities, the Council has had to deal with a surplus of school places including in Croxteth.

7. The table below shows the surplus places for each of the four schools for 2003 and 2008 as well as predictions for the future:-

	Surplus places 2003 as number and as % of capacity	Surplus places 2008 as number and as % of capacity	Surplus places 2010 as number and as % of capacity	Surplus places 2018 as number and as % of capacity
The School	250 / 27%	413 / 47%	471 / 54%	612 / 70%
Fazakerley	158 / 17%	246 / 25%	334 / 34%	500 / 51%
St John Bosco	166 / 13%	23 / 2%	45 / 4%	271 / 25%
De La Salle	177 / 18%	479 / 48%	518 / 52%	609 / 61%

8. The academic performance of the four schools is shown in the table below :-

	5A* - Cs % pupils	5A* - Cs including English and Maths % pupils
The School	34	21
Fazakerley	80	35
St John Bosco	67	45
De La Salle	67	46

9. These tables show that of the four schools in the area, the School had the misfortune first to be the worst performing school by a substantial margin and second that it had, has and is likely to have for the foreseeable future also by a substantial margin the largest number of surplus places save that De La Salle School had more vacant places than the School but only in 2008. The claimant has only daughters and so De La Salle School was not an alternative school for her. I add that Fazakerley High School, which is the most successful school academically was described by the Minister of Sport as "improving strongly". It is about a mile away from the School and there is apparently no direct bus route. As I will explain in paragraph 15 more than 70% of the pupils in Year 9 at the School have opted for Fazakerley High School.

10. Governmental guidance means that those factors in themselves did not mean that the School had to be selected for closure. The governmental guidance to which a council was obliged to have regard before closing any particular school has its origins in paragraph (8)(6) of Schedule 2 to the Education & Inspections Act 2006 ("the Act"), which empowers the Secretary of State for Children, Schools and Families to issue guidance. This is contained in a document entitled "Closing a Maintained Mainstream School" ("The Guidance") and it contains both statutory and non-statutory guidance but the factors relevant to this case are all in the statutory guidance.

11. The salient and relevant factors in the Guidance are that:-

(a) Weak schools that need to be closed should be closed quickly and the best schools should be able to expand (paragraph 4.17);

(b) School closures should contribute to raising standards of education (paragraph 4.20);

(c) Action should be taken to remove empty places at unpopular schools where this supports raising standards (paragraph 4.34);

(d) A proposal to close a school should normally be approved where the school has a quarter or more places unfilled and at least 30 surplus places and where standards are low compared to schools in the local authority's area (paragraph 4.35);

(e) Where the basis for the closure of a school is based on the removal of surplus school places, "standards at the school in question should be taken into account, as well as geographical and social factors… and the effect on any community use of the premises" (paragraph 4.35);

(f) In considering proposals for the closure of schools which are a focal point for family and community activity and providing extended services for a range of users, the effect on families in the community should be considered (paragraph 4.36); and that

(g) In deciding whether to close a particular School, the decision-maker "should bear in mind that proposals should not have the effect of unreasonably extending journey times or increasing travel costs, or result in too many children being prevented from travelling sustainably due to unsuitable routes e.g. for walking, cycling etc"(paragraph 4.40).

12. The decision of the Council to close the School was based upon:-

(a) the fact that the School had the highest projected surpluses of school places as well as the worst educational attainment levels of the local schools group;

(b) the application of the terms of the Guidance; and

(c) the duty of the Council under section 13A of the Act to "ensure that there are functions relating to the provisions of education… are… exercised… with a view to – (a) promoting high standards.."

13. It is proposed that staggered transfer of children from the School over 2009 and 2010 should take place so as to permit the undisturbed completion of Key Stages 3 and 4 at the School and to allow sixth formers to remain at the school. This aspect of the Council's decision to close the School is not now being challenged.

14. The claimant attaches significance to the fact that she is not a Catholic and so it is appropriate to mention the attitudes to the religious affiliations of prospective pupils of the other schools. Both De La Salle and St John Bosco as Catholic schools currently give priority when considering admission to Catholics, but as from 2010-2011 they intend to accommodate non-Catholics from Croxteth. St John Bosco has changed its admission criteria to provide "30 places for girls other than Catholics who live in the admission area that was served by [the School]". De La Salle already accepts non-Catholic boys and because it is not, and is unlikely to become, over-subscribed, it cannot lawfully refuse admission to non-Catholics. The Council accepts first that those schools will not appeal to many who now attend the School but that they might appeal to some but that displaced pupils might be attracted to Fazakerley High School, which, like the School, is a co-educational community school but it has a substantially higher rate of academic success as is shown in the table, which I have set out in paragraph 8 above. Of course, the Council appreciates that parents of children at the School are free to apply to other schools in the region, irrespective of whether they are maintained by the Council or by neighbouring authorities.

15. There is evidence that as at the date of the hearing of the judicial review claim, 56 of the pupils, who are currently in Year 9 at the School, 41 had been allocated places at Fazakerley High School and that is more than 70%. The following applications and allocations had been made as at the date of the hearing of the judicial review application:-

School	Numbers of applicants
Archbishop Beck	5 (allocated)
Broadgreen	1
Brookfield (Knowsley)	1 (allocated)
De La Salle	6 (allocated)
Fazakerley	41 (allocated)
Hillside (Sefton)	1 (allocated)
Holly Lodge	1 (allocated)

16. The claimant is the mother of two girls, one of whom is aged 12 and who attends the School while her other daughter is aged 10 and who wants to attend the School shortly. The claimant does not have any religious beliefs and she does not want them to attend a faith school let alone a single sex school. She believes that families in the Croxteth area have benefited from "the school's stabilising influence". The claimant attaches great importance to the murder of Rhys Jones and she is concerned that if her daughters have to be educated in another area, they are "likely to be met by with intimidation and threats from other pupils".

17. Another witness statement was made by Ms Kelly Welsh, who has four children two of whom are already at the School and two of whom hope to go there. All the children are active members of the local Protestant community and they would be opposed to attending a Catholic school.

18. The consequence of attending Fazakerley High School would mean in the words of Ms Welsh "travelling to a completely alien and hostile environment, where they feel they are unwelcome and will be unsafe". She explains that their concerns are "based upon deep rooted divisions and gang rivalry within this area of Liverpool, and that our children will not be safe if they attend these schools".

19. Christine Seddon, who also made a witness statement, has three children living at her home and one of whom is in the first year at the School. Her younger child wishes to go there but they too are concerned about bullying at Fazakerley and "the very real issue of gang rivalry in this area". I have no doubt about the importance of the School to the Croxteth community and the strength of their opposition to the decision to close the School. This opposition is shared by the Head Teacher of the School who has played a prominent part in the campaign to prevent the closure of the School. I have great sympathy for them but, as I have explained, my task is to apply the established legal principles.

III The issues

20. It is important to explain that the claimant does not criticise the rationality of the decision of the Council to reduce the number of school places in Liverpool or the consultation process adopted by the Council. Nor is it suggested that the Council was biased when it decided to close the School but the claimant's case is that the Council failed to consider properly or at all material factors. I have not attached any significance to a decision by the Local Government Ombudsman of 19 December 2008 dismissing a complaint about the way that the Council was handling the procedure for closing the School but this decision preceded the final decision to close the School.

21. So the position was that the School not only had in the long term the greatest potential long-term decline in the percentage of those on the roll but its attainment level was much lower than that of the other three schools. The Council accepted correctly in my opinion that these factors were not determinative and that it had to take other factors into account.

22. Mr David Wolfe counsel for the claimant has abandoned one of his grounds and he now contends that there are five reasons why the decision to close the School should be quashed. In response, Mr Peter Oldham counsel for the Council submits that each of these claims should be rejected and that in any event, even if the complaints of the claimant are justified, this should not lead to the quashing of his decision. Mr. Oldham also submits that the present claim should be rejected not only on grounds of delay by the claimant. I must consider if claimant's complaints are justified whether it would not be appropriate to quash the decision to close the School. Mr. Wolfe disputes these contentions.

23. The issues to be considered on this application are:-

(a) Whether the Council misdirected itself by making its decision to close the School on the incorrect basis that Building Schools for the Future funding would not be available if the School remained open (see paragraphs 24 to 37 below);

(b) Whether the Council failed to have regard to the Guidance and the legitimate expectation of the claimant on community cohesion issues and to undertake a broadly based community strategy and to take a decision in the light of it (see paragraphs 38 to 60 below);

(c) Whether the Council failed to have regard to the ECHR rights of the claimant under article 14 and article 2 of Protocol 1 of the ECHR (see paragraphs 61 to 72 below);

(d) Whether the Council omitted to consider the potential for the School as part of a National Challenge Trust Partnership proposal(see paragraphs 73 to 77below);

(e) Whether the Council failed to give effect to statutory guidance on journeys to school(see paragraphs 78 to 97 below);

(f) Whether the claim should be rejected because of the claimant's delay in instituting the present judicial review application (see paragraph 98below);and

(g) Whether even if some or all of the claimant's complaints are justified, it would be inappropriate to grant relief (see paragraphs 99 to 100 below).

IV Ground 1 of Challenge – Fundamental Error as to BSF Funding

24. BSF, as its full name Building Schools for the Future suggests, is a national programme for renewing school buildings and facilities. The Department of Children Schools and Families (which I will refer to in its different entities as "the Department") acting through its agency, Partnership for Schools, provides BSF grants upon approval of an outline business case from a local education authority.

25. The case for the claimant is that the Council should have gone forward with the business case for BSF funding with the School staying open but that instead its officers told the councillors, who made the decision to close the School, that there was no point in considering anything other than the closure of the school because it would not be supported by the appropriate government agencies. Mr Wolfe points out that in a report to councillors dated 23 September 2008, the officers of the Council stated that "Government Agencies will not accept BSF proposals which include [the School]". This comment was repeated in a further report to councillors in the report of 13 February 2009. Mr. Wolfe contends that this constituted an error because this was not the true position and so the decision to close the School was made on a false basis.

26. The case for the Council is that it had been told by reliable sources that BSF would not be available for the School. In response, Mr Tim Warren, who is a local government official and who is and was involved in formulating the Council's strategy in relation to the BSF programme, has explained the very detailed approval process to obtain assistance from the BSF programme; it required local authorities to demonstrate at every stage of the process that their strategic city-wide proposals for provision of schools took account of :-

(a) The estimated pupil numbers for the schools in question for the next ten years;

(b) The standards of achievement for the schools in question including reference to central government initiatives such as the National Challenge; and

(c) Relevant legislation including the Act.

27. These processes are included in what is known as "estate realisation", which is the process by which a local authority is required to look at all of its secondary schools and then to conclude whether it has the correct number, too few or too many. To meet the overall criteria set by the Partnership for Schools scheme, it was clear that the number of schools serving the area in Liverpool with which this application is concerned had to be reduced by at least one school or possibly two schools. The decision to reduce the number of schools in the area covered by the School is not challenged. In June 2008, the Government launched its National Challenge stating that by 2011, no school would be allowed to remain open if less than 30% of its pupils obtained less than 5 GCSE results in subjects including English and Maths at A* to C grade. Deputations of Government officers were sent to meet local authorities to decide how they would meet this challenge.

28. A meeting took place in Liverpool between Mr Warren and Mr Stuart Smith, who was the Executive Director for Children's Services for the Council, with Government officers and the Council officers then asked the officers from the Office for Schools Commissioner (who oversees estate issues and checks all proposals for BSF support) what the response would be if after consultation the Council's BSF proposals included the School. According to Mr Warren, "his clear response was that he would recommend to the Minister non-approval of such a Liverpool BSF submission as [the School] had low standards and was not viable as a BSF School". No contrary evidence has been adduced to show that this was not said and it justifies the advice given to the Council that "Government Agencies will not accept BSF proposals which include [the School]".

29. Mr. Wolfe seeks to suggest in some way that matters changed because the School was later putting forward a "structural plan" in connection with the National Challenge but as I will explain in paragraphs 73 to 77 below there were very serious difficulties about the School becoming part of that scheme as it would have necessitated closing one of the other three schools in the area, all of whom had much better academic results than the School and who would have had fewer vacancies in the future than the School. That would have necessitated a fresh lengthy consultation process.

30. At another meeting on 12 September 2008 attended by officers from the Department, Mr Warren was told that the schools, which were beneficiaries under the BSF programme were expected to have at least six hundred pupils aged between 11 and 16 to be viable. In January 2009, the School had 409 pupils enrolled and its future projections were falling further. I agree with Mr Wolfe if that was the only reason given for not allowing the School to benefit from the BSF proposals, this factor would also have precluded De La Salle from benefiting.

31. It is significant that the official from the Department stated that if a school was a high risk National Challenge School, then it would "expect a structured solution to be adopted". The School was a high risk National Challenge School as 21% of its pupils received five marks at A* to C level at GCSE including English and Maths although I was told after the hearing that according to the latest OFSTED report (which I have not seen) that it is on target to have 30% of its pupils receiving five marks at A* to C level at GCSE including English and Maths by 2011. Even if that is the present position, it was not the situation when the decision was taken to close the School and so is not relevant. In any event those results are still significantly below those of the other three schools are now achieving. As I showed in paragraph [7] above, unfortunately these results contrast very unfavourably with the corresponding results for De la Salle, St John Bosco and Fazakerley and these showed that 46%, 45% and 35% of their pupils respectively obtained five marks at A* to C level at GCSE including English and Maths. A structural solution meant closure or amalgamation but it certainly indicated the BSF funding would not be forthcoming.

32. A. Therefore Mr Warren contends correctly that he was justified in stating in his report to Councillors that "government agencies will not accept BSF proposals which include Croxteth Community Comprehensive". The evidence to which I have referred concerning the information given to the Council supports this conclusion in the light of the position at the time of the decision to close the School.

B. A further fact which fortifies and which could independently justify this conclusion is that, as I explained in paragraph 26, in order to obtain assistance from the BSF programme, a local authority had to demonstrate at every stage that it took account of (i) the estimated pupil numbers for the schools in question for the next ten years; (ii) the standards of achievement for the schools in question including reference to central government initiatives such as the National Challenge; and (iii) Relevant legislation including the Act.

C. Applying those three criteria, the School was bound not to be a beneficiary of BSF as (i) it had the highest predicted number of vacant places as shown in the table in paragraph 7 above; (ii) the School's academic achievements were the weakest of the four schools; and (iii) relevant legislation included the statutory guidance which provided that action should be taken to remove empty places at unpopular schools where this supports raising standards (paragraph 4.34) and that a proposal to close a school should normally be approved where the school has a quarter or more places unfilled and at least 30 surplus places and where standards are low compared to schools in the local authority's area (paragraph 4.35).

D. As I will explain in paragraph 35 below, the Minister of State in the Department wrote on 24 March 2009 stating the governmental support for closing the School which was described as "a sensible proposal" and that indicates that the Department would not have been prepared to make BSF assistance available for scheme involving a school the closure of which it considered "sensible". This would suggest support for Mr. Warren's advice.

E. Even if this information did not justify the advice given by Mr. Warren to councillors, it was not Wednesbury [1948] 1 KB 223 unreasonable or irrational for him to give that advice in the light of what he had been told and the matters set out in this paragraph.

33. Another complaint of the claimant is that this advice to the Council was inconsistent with an email dated 24 March 2009 from Mr Jim Knight MP, who was then a Minister of State at the Department , in which it is stated that:-

"Neither the Department nor Partnership for Schools have told [the Council] specifically to close Croxteth School – and that their BSF funding would be dependent on this – as decisions upon school reorganisation are very much part of the local decision making process".

1. This email postdates the decision to close the School and in any event, it was not addressed to the Council. I agree with Mr Oldham that it is impossible to see how a Council's decision-making process can be impugned by reference to a document that post-dates the decision-making process and which in any event was not addressed to it. In any event, the Minister would have had no idea what his officials said to Mr. Warren at meetings to which I have referred in paragraphs 28 and 30 above.
2. Furthermore, the email goes no further than saying that the Department and Partnership for Schools did not tell the Council to close the School which is correct but its officials made clear what its attitude would have been to any application to give BSF support to the School. It is also noteworthy that the email is very supportive of the Council's decision to close the School because it states that:-

"..the [Council's] plan to retain and strengthen the two better performing schools and to close [the School].. appears to be a sensible proposal and the [Office of the Schools Commissioner] have indicated their support for this".

36. For all those reasons, I must dismiss this ground of challenge as I consider that the Council did contrary to Mr Wolfe's submission comply with its obligation to "ask [it]self the right question and take reasonable steps to acquaint [it]self with the relevant information to enable him to answer it correctly" (per Lord Diplock in Secretary of State for Education v Tameside MBC [1977] AC 1014, 1065).

37. After all, officers of the Council had made the proper inquiries of central government and they had received answers and the understanding of them was duly communicated to the members of the Council who were the decision-makers. In other words, this was not a case of "unfairness resulting from misunderstanding or ignorance of established and relevant fact" (per Carnwath LJ in E v Secretary of State for the Home Department [2004] QB 1044 at 1079[91]).

V. Ground II. Failure to undertake a broadly based community strategy and to take a decision in the light of it

38. Consideration of the reorganisation of schools in the Croxteth area had originally been deferred in September 2007 because it was recorded, with my underlining added, that :-

"the issues facing the community go much deeper than the reorganisation of schools in the area. However, the role of schools in supporting community cohesion is crucial and as such it is preferable that school organisation decisions be taken in the context of a broadly-based and agreed strategy for delivering community cohesion and community safety in the area as a whole".

39. It was then stated in the same document that: -

"In the light of this analysis, the Council intends to approach central government and its agencies with proposals to extend BSF deadlines for schools in this area, so that a review of school places can be undertaken in a time scale which is both consistent with the development of a broader community cohesion strategy and more sensitive to the current needs of the area".

40. The thrust of the claimant's complaint is that the Council failed to do what it said that it would do or to comply with the requirements in the Guidance relating to how the Council should deal with the social and community consequences of closing a school. As I have explained in paragraph 11 above, paragraph 4.35 of the Guidance requires the Council to take into account "geographical and social factors... and the effect on any community use of the premises" while paragraph 4.36 of the Guidance states that:-

"Some schools may already be a focal point for family and community activity, providing extended services for a range of users, and its closure may have wider social ramifications. In considering proposals for the closure of such schools, the effect on families and the community should be considered.."

41. Mr. Wolfe contends that the Council did not do what it said that it would do, which was to ensure that any decision in relation to the School would be taken in the context of a broadly based and agreed strategy. He also submits that in the words of his Reply "the Council was committing itself to a process involving a wider consideration leading to a 'strategy' in the context of which strategy school disclosure decisions would be taken". Mr Richard Baker, who was the Head Teacher at the School, has stated that no proper consideration was given to the issue of community cohesion before the decision was taken to close the School. This echoes a complaint of the claimant in her witness statement.

42. Set against that background, Mr Wolfe contends first that the Council failed to comply with this approach and second that this failure should lead to the impugning of the decision to close the School. He also relies on the principle that where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so.

43. The claimant's case has different strands and one of them is that the Council would only act on an "agreed strategy" but there was no promise that it would so. As I have explained in paragraph 36 above, in September 2007, it was said that it would be preferable that a decision should be taken in that context rather than it was mandatory for this to be done. In other words there was no promise and so the claimant cannot base her case on one. That leaves outstanding the important questions of whether the Council should have sought a "broadly- based and agreed strategy" and whether it did not have regard to the Guidance or the strategy for delivering community cohesion and community safety as whole. I am very conscious that the Head Teacher of the School, the claimant and some other parents feel very strongly about this as they are rightly deeply concerned about social and community issues.

44. I have given the matter very careful consideration but I am driven to the conclusion that I cannot accept the claimant's complaint on this issue. There was evidence of consideration of issues of social and community factors and the existence of a strategy for community cohesion in the Council's deliberations and in light of the feeling on the part of the claimant and the Head Teacher on this issue, I will deal with this matter in some detail.

45. First, on 23 September 2008 there was a submission by the Executive Member to the Council which dealt with the representation of the School that the proposals for its closure

"…fail completely to address the community cohesion issues prevalent in both areas and take account of the wealth of experience, local knowledge and expertise available in [the School]."

46. The Executive Member responded by pointing out that the proposals for the closure of the school offered the best means of addressing the community cohesion aims in the light of the BSF programme and the constraints of school organisation. The Executive Member stressed the significance of the continued existence of St John Bosco School, which was a "popular and successful school", and of De La Salle School, which was described as "a viable and improving school", and second of opening them to the wider community. It was said that those proposals would secure significant investment into educational provision in the area on sites well located for both the Croxteth and Norris Green communities. Accordingly by providing for sustainable schools in this community and opening them to the wider community, the proposals to close the School would thereby "help contribute to further strategies for community cohesion in the area".

47. It was also said in response to the complaints of the School, that the arrangements planned by the Council would demonstrate its willingness to invest in the area and to provide sporting and extended school facilities well located for both the Croxteth and Norris Green communities. It was also pointed out that the provision of two sustainable schools in the community with the additional BSF investment would help contribute to future strategies for community cohesion.

48. Reference was also made in this document to the support for separate provision for boys and girls in line with the expressed wishes of the majority of parents and also by the choices made by parents in choosing secondary schools in the area. It was also pointed out that the rationale behind the proposal to close the School was "declining numbers and the authority's responsibility to ensure pupils attend schools with high attainment levels". This again is a strategy for community cohesion even though it was not what the claimant wanted.

49. A second occasion when the social cohesion issue was considered was after questions were put to the Education Skills Select Committee of the Council in January 2009. The committee was asked how the proposals for the school address the "community cohesion agenda" and if they had envisaged the impact of closing a community school on community stability.

50. In response, the Council explained that their proposals for closing the School offered the best means of addressing "community cohesion" given the parameters of legislation and the requirements of the BSF programme. The Committee emphasised that by ensuring the continuation of St John Bosco School, which was a successful and popular school, and De La Salle as a viable and approved school, there would be a significant investment in the educational provision in the area at sites, which would be well located for both the Croxteth and Norris Green communities.

51. It was also noted first that the School then met with the Extended Schools Core Offer and second that their programme at the School then included a number of facilities such as a Sports Co-ordinator of Activities for those aged between 4 and 18 years of age, the hiring out of facilities to a range of sporting clubs and organisations, a full physical education programme for all students including a range of after-school activities, the provision of a teacher assistant training course and an on-site youth club.

52. It was stated in this submission of 14 January 2009 that before the school was closed, the Council would establish a transition group to address the many operational issues associated with secondary school closure and to ensure the smooth transition of pupils to other schools. The Group would work closely with local schools and a range of local agencies to ensure that those extended services, which had been offered to pupils who were formally at the School and their families, would be maintained following its closure and would even be improved whenever this would be possible. This work would be supported by the appointment of an Extended School Support Officer and two Parent Support Advisors, who had been appointed to work in the area from December 2008. This seems to me to be again to constitute a broadly-based strategy for community cohesion.

53. It was also stated in the 14 January 2009 document that the plans of the Council would provide sporting and extended school services well located for both the Croxteth and Norris Green communities. The proposals which entailed the provision of two sustainable schools in the community and together with additional BSF investment would help to contribute to future strategy for community cohesion in the area.

54. There would also according to the response be continued separate provision for boys and girls in line with the express wishes of the majority of parents and they noted that the pupil numbers at each of the schools showed them to be popular. It was explained that falling pupil numbers and the complex demands of present curriculum meant that it was not possible to offer a diverse range for secondary provision in a small geographical area and that the Council's proposals made provision for alternative non-Catholic and mixed education at Fazakerley High School, which is just over a mile from Croxteth and within the three-mile statutory walking distance.

55. In another answer to a question, the benefits of the Council's proposals for children living in Croxteth were explained as being first that they would be improving quality and standards especially as the School was forecast to fall in size beyond the minimum required for educational viability and second that investing BSF funding into the sites of the two highest performing schools would significantly improve school accommodation. It was also said by the Council that the proposals for closing the School would also facilitate the improvements in education on sites well located for both the Croxteth and Norris Green communities.

56. It was also explained that the proposals which would lead to the closure of the School would support community regeneration by building on investing in the most successful schools which would be the key to neighbourhood sustainability and regeneration. Clearly one way in which community cohesion could be fostered was by providing better schools with more funding.

57. Similar points were set out in section 13 of the information attached to the Statutory Notice published on 5 November 2008 relating to the proposal to discontinue the school and which stated that:-

"The Authority considers that the proposals for the area offer the best means of addressing the community cohesion agenda, within the constraints of school organisation legislation and the requirements of the Building Schools for the Future Programme. By ensuring the continuation of St John Bosco, a popular and successful school, and until 2012 De La Salle, a viable and improving school, and opening them to the wider community, the proposals will secure significant investment into educational provision in the area on sites that are well located for both the Croxteth and Norris Green Communities".

58. In my view, it is clear that the Council took into account material considerations namely "the broadly based .. strategy for delivering community cohesion and community safety to the area as a whole". Another aspect was the provision of a free bus service to Fazakerley High School for pupils displaced from the School and their siblings as I will explain in respectively paragraph 91 and 100 below and this would constitute a strategy for community safety especially as the witness statements supporting the claimant's case refer to dangers and difficulties for pupils at the School who would have to travel to Fazakerley High School.

59. I know that the claimant and the Head Teacher at the school disagree with these conclusions but, as I have explained in paragraphs 4 and 5 above, I cannot reconsider the merits of the case, which is what I suspect that their complaint is about. As I have explained, my task is as was explained in the Bradley case (supra) to ascertain if the Council "has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth".

60. In my view the answer the Council operated and reached a decision, which falls within the "legal limits". As I have explained, there was no need for the Council to reach a decision based on agreement but only because it was preferable to try to do so and that clearly was not possible. During the consultation process, the Council developed a strategy for "community cohesion and community safety" including opening the existing schools to a wider community, obtaining significant investment in the educational provision for the surviving schools, ensuring the smooth transition of displaced pupils from the School to other schools, providing new sporting and extended school services well located for the Croxteth and Norris Green communities, improving school accommodation at the surviving schools and providing for return transport to Fazakerley High School, which would make the journey safe for displaced pupils.

VI Ground III Article 14 and Article 2 Protocol 1

61. Mr Wolfe contends that the decision to close the School clearly discriminates contrary to Article 14 of the ECHR against parents and pupils who are not Catholics (irrespective of whether they are of some other faith or not religious) in the enjoyment of their rights under Article 2 Protocol 1.

62. Article 2 of the First Protocol to the ECHR provides that:-

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to religion and teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions".

63. Article 14 of the ECHR, insofar as is relevant, provides that:-

"The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour… religion".

64. The United Kingdom Government has made a reservation to article 2 of the First Protocol because Schedule 3 Part II of the Human Rights Act 1998 declared:-

"that, in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure".

65. It is also said by Mr Wolfe that the Council has not offered any justification for this discrimination because it merely states that there has been no discrimination and no breach of any rights. He points out that in the Belgian Linguistics (No) 2 case (1968) 1 EHRR 252, the Strasbourg Court said at paragraph 9 that:-

".. persons subject to the jurisdiction of a Contracting State cannot draw from Article 2 of the Protocol the right to obtain from the public authorities the creation of a particular kind of educational establishment; nevertheless, a State which has set up such an establishment, could not, in laying down entrance requirements, take discriminatory measures within the meaning of article 14".

66. He also stresses discrimination on the grounds of religious status is now one of the "most sensitive areas" calling for "fierce scrutiny", in relation to which he points out that Lord Walker of Gestingthorpe said in Carson v Work & Pensions Secretary [2006] 1 AC 173 that:-

"58. In its judgment the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds [which were race or sex or sexual orientation" ..since [1995] religion, nationality have it seems been added".

67. Mr Wolfe also notes that in Hoffmann v Austria (1994) 17 EHRR 293, the Strasbourg Court held that the decision of the Austrian Court to award parental rights to a father who was a Jehovah's witness, rather than to a Catholic father was a breach of article 14 in conjunction with article 8 explaining that "a distinction based essentially on a difference in religion alone is not acceptable".

68. Applying these facts to the present case, the case for the claimant is that parents and pupils in Croxteth, who are not Catholics are manifestly disadvantaged, compared to those who are Catholics and who have the benefit of two Catholic schools in the area.

69. I cannot accept this submission for two reasons. First, there has been no discrimination against the claimant because a difference in treatment will only be held to be discriminatory and contrary to article 14 if it has "no objective and reasonable justification" but, as I will explain, this is not the case because there is perfectly adequate justification for any difference in treatment. The Council, who have the onus of establishing such justification, have to put forward a rational aim for any such differential treatment and to show that there is a reasonable relationship of proportionality between the means employed and the aims sought to be achieved.

70. In this case, the aims sought to be achieved by deciding to close the School were clearly to ensure first a reduction in the large number of surplus places at schools in the Croxteth and the Norris Green areas of Liverpool and second to ensure that education was provided at the more successful and the more sought after schools. This was a legitimate aim for a public authority to take. Indeed, it is not suggested that the Council erred in deciding that it would have to close one of the schools in the area.

71. The decision to select the School for closure was quite clearly proportionate bearing in mind first that the School not only had the largest number of surplus places of the three schools save for one year when De La Salle had more places; second and more importantly that it was predicted that in the future the School would have the highest percentage of vacant places; third that the academic results achieved at the School were substantially worse than those at any of the other three schools in the area; and fourth that the relative ease with which pupils at the School could move to Fazakerley High School (which was like the School a co-educational non-faith school) bearing in mind its proximity to the School and the free return coach arrangements to which I refer in paragraph 100 below as well as the other statutory obligations on the Council to assist pupils in appropriate cases with transport. For those reasons I must dismiss this complaint.

72. A second reason why I would have rejected the complain is that the claim does not fall even within the ambit of article 2 of the First Protocol to the ECHR because education was available to the claimant's children at a non-faith co-educational school at Fazakerley High School to which free bus transport was provided by the Council and which in any event was within 3 miles of the claimant's home. The claimant's children do not have the right to be educated at any particular school (cf R (Begum) v Denbigh High School [2007] 1 AC 100). The claimant's children will continue to be educated at schools with better academic results than those achieved by the School assisted by free return bus travel to Fazakerley High School. Thus I reject this complaint and indeed if I did not do so, it would mean that whenever a non-faith school was closed in an area leaving only faith schools in the immediate area but a non-faith school a mile away, the rights under the ECHR of the children and parents at the closed non-faith school would be infringed. This claim must also be rejected.

VII. Ground IV. Failure to Consider the National Challenge Trust Proposal

73. The background to this complaint is that in response to the consultation, the School had put forward proposals for it to become a National Challenge School Trust Partnership, which was one of the options for consideration as an alternative to closure. It is correct that in response to the publication of the statutory notice relating to the proposed closure of the School, that the Council should have approached the School to discuss the possibility of a National Challenge Trust. This matter was considered in the January 2009 report and indeed on 30 January 2009, the Executive Board of the Council deferred the decision as to whether to approve the closure of the school partly so that

" ..the Executive Director ..be requested to resubmit Report… to the meeting of the board to be held on Friday 13 February with additional information on the implications for the council, the school and the pupils of the recommendation of the Education and Skills Committee and also on the proposal of the school to build upon their extended campus proposal by forming a National Challenge Trust Partnership, which was presented to the Select Committee [on 29 January 2009]".

74. It is said by Mr Wolfe first that the Council was not provided with the additional information on the implications of the proposal of the school to build upon their extended campus proposal by forming a National Challenge Trust Partnership. He also contends that the Council did not even conscientiously evaluate the proposal as it was required to do so but that it instead proceeded on the basis which Mr Wolfe said was erroneous. Another complaint made by the Head Teacher of the School is that the Department's plans for the School were not circulated to schools by the Council until 30 September 2008 but that scheme was only instituted in September 2008.

75. This proposal was considered by the Executive Board on 13 February 2009. It was then explained to the Board that it could not consider the proposal from the School for a National Challenge Trust Partnership without beginning once more the statutory consultation, which had previously been conducted in June and July 2008. Such a proposal could only be considered as part of a wider strategic package of proposals for the area and if it subsequently formed part of a new strategic package, consideration would then be needed to be given to closure of at least one alternative school.

76. The difficulty caused by that proposal, according to Executive Members, would have been that it would have required the Council to propose the closure of successful and potentially more popular schools in preference to the closure of the School which was a less successful as well as being a potentially less popular one. Such a decision would in the opinion of the Executive Member clearly be open to challenge and it would also have required the Council to reconsider its BSF submission. Additionally, the proposal from the School in the opinion of the Executive Member did not address the critically important reasons for closing the School and that was important because consideration of the School's new proposal would entail rejection of the proposal to close the School and "it would probably result in rejection of the City Council's BSF proposal by Partnership for Schools".

77. In essence the School's proposal was considered at the 13 February 2009 meeting which rejected the proposal for the reasons which I have set out which in brief were that first it would have entailed rejection of the proposal to close the School, second it would have caused the Council to propose the closure of a more successful school, third there would then have been a further lengthy consultation process, fourth it would have led to the continued temporary existence of four schools in an area where there were a large number of vacant places and fifth the probable rejection of the Council's BSF proposals. So the Council did what it said that it would do on 30 January 2009 when it then considered the additional information. In my view the Council reached decisions which were open to it even though the claimant disagrees with them. It must not be forgotten that the duties of the Council were owed not merely to those at the School but all those in all the schools in the area. So, none of Mr. Wolfe's complaints can be accepted.

VIII Failure to Give Effect to Guidance on Journeys to School

(i) Introduction

78. Mr Wolfe complains that the Council failed to give effect to that part of the Guidance which dealt with the effect of closure on journeys to school by the pupils of the School who have to go to alternative schools. His contentions are that first the Council did not consider this matter before making its decision to close the School; second that it has not properly applied the Guidance; and third insofar as the Council is now proposing a bus service to Fazakerley High School for those displaced from the School and their siblings, it amounts to unfair discrimination against other pupils, who do not have the benefit of the bus service.

(ii)Were the provisions on transport provisions in the Guidance followed by the Council before the decision was made to close the School?

79. Mr Wolfe's starting point is paragraphs 4.39 and 4.40 of the Guidance, which deals with the issue of "Travel and Accessibility for all" and which states that:-

"4.39 In deciding statutory proposals, the Decision Maker should bear in mind that proposals should not have the effect of unreasonably extending journey times or increasing travel costs, or result in too many children being prevented from travelling sustainably due to unsuitable routes e.g. for walking, cycling etc…

4.40. In deciding statutory proposals, the Decision Maker should bear in mind that the proposals should not have the effect of unreasonably extending journey times or increasing travel costs, which result in too many children being prevented from travelling sustainably due to unsuitable routes. Proposals should also be considered on the basis of how they will support and contribute to the [local authority]'s duty to promote the use of sustainable travel and transport to school".

80. His case is that this shows the decision to close the school was required to carry out and take into account an evaluation of the implications of transport between home and school of any decision and that this should therefore precede the decision to close being taken. This would entail considering whether children might be prevented from travelling sustainably to another school due to unsuitable routes for example for walking or cycling. His case is that the journey by those who presently attend the School to Fazakerley High School by bus is far from straight-forward even if parents could afford the cost which he says many cannot. It is also said that walking is dangerous. As I have explained more than 70% of the pupils in year 9 at the School have applied for and been allocated places at Fazakerley High School and so the Council was correct to focus on transport for those moving from the School to that school.

81. The complaint of the claimant is that necessary travel assessments had not been undertaken before the decision was taken to close the School. In support of this contention Mr Wolfe refers to the resolution passed on 13 February 2009 in which the Executive:-

"Resolved: (i) the recommendation of the… Executive Director [to close the school] be approved; and

(ii) Travel assessments undertaken for all children and young people affected by this decision."

82. Therefore the position according to Mr Wolfe is that the assessment had not taken place before the decision to close the School had been taken. Although the wording of the resolution supports Mr. Wolfe's point, I cannot accept this criticism because the true position is that the Council had considered with some care the transport consequences of closing the School and had made proposals irrespective of what the resolution stated before making proposals.

83. After consultation had taken place into proposals for closing the School, the Council produced a report dated 23 September 2008 in which there was discussion of the increased costs and safety concerns for those pupils who moved to Fazakerley High School. It was said that there would be discussions with that school to "secure the provision of a dedicated school bus to serve the area of [the School] and provide free travel on that provision for pupils displaced from [the School] during implementation of the closure proposals". The responses obtained on consultation were attached to the report.

84. The statutory notice relating to the closure of the School dated 5 November 2008 dealt with the transport consequences for pupils displaced from the School. It stated that if the proposal for the closure of the School were approved, the Council would work with Fazakerley High School to "secure the provision of a dedicated school bus to serve the area of [the School] and provide free travel on that provision for pupils displaced from [the School]". It was also explained in the statutory notice that in view of the close proximity of De La Salle and St John Bosco to the School, "no particular travel arrangements were proposed". No criticisms are made of that because of their proximity to the School.

85. The Council received representations in response drawing attention to the low level of car ownership among parents of pupils many of whom were single parents and the serious financial problems of many of the parents of the pupils at the School. The School also explained the inadequate bus service to Fazakerley High School which would impose extra costs on the parents in the disadvantaged area and it also raised safety issues.

86. In a report dated 14 January 2009, the Council duly responded in which it explained (with my underlining added) that "during the implementation of the closure proposals [the Council] will provide free travel on this service for pupils displaced from the School". So the position was that by the time the decision was taken to close the School that the Council had consulted widely and had agreed to provide a free bus service to and from Fazakerley High School for those displaced from the School.

87. It is clear that paragraph 4.40 was quoted in full and discussed in the report to the Executive Board of 14 January 2009 (34/153). In my view the council did take these matters contained in them into account. After all, it had considered what transport was required for existing displaced pupils at the School who had moved to Fazakerley High School and concluded in a decision consistent with paragraph 4.40 of the Guidance that a free bus service was required for those pupils. This suggestion was obviously the result of an evaluation of what was needed to make Fazakerley High School accessible to the displaced pupils of the School.

88. In my view, it is clear that the Council did consider the travel issue because it considered how to contribute to the use of sustainable transport to Fazakerley High School by the use of a free bus service for pupils displaced from the School. It also determined that there would be no difficulties for those walking to De La Salle and St John Bosco schools because of their proximity to the School.

89. .Nevertheless the position was that those pupils who would otherwise have gone to the School but as a result of its closure would have in the future to start at a new school would not at the time of the decision to close the School have had the benefit of these transport arrangements but the Council would obviously have been aware of the statutory position which gave rights to pupils who would be exposed to risk if they had to walk to school. These provisions which are set out in the next paragraph show that secondary school children have the right to free transport if their school is over three miles away from their home, or if it is within three miles but it would be unreasonable to expect the child to walk the route. (There are special rules for children with mobility problems or special educational needs).

90. Section 508B of the Education Act 1996 provides a right to "eligible children", as defined by Schedule 35B, to have free transport. Two categories of eligible children are relevant here and they are:-

"4. Children who cannot reasonably be expected to walk because of nature of routes

A child falls within this paragraph if:-

(a) he is of compulsory school age and is a registered pupil at a qualifying school which is within walking distance of his home;

(b) no suitable arrangements have been made by the local education authority for enabling him to become a registered pupil at a qualifying school nearer to his home; and

(c) having regard to the nature of the routes which he could reasonably be expected to take, he cannot reasonably be expected to walk to the school mentioned in paragraph (a).

6. Children outside walking distance where no suitable alternative arrangements made

A child falls within this paragraph if:-

(a) he is of compulsory school age and is a registered pupil at a qualifying school which is not within walking distance of his home;

(b) no suitable arrangements have been made by the local education authority for boarding accommodation for him at or near the school; and

(c) no suitable arrangements have been made by the local education authority for enabling him to become a registered pupil at a qualifying school nearer to his home.

"Walking distance" for the secondary school pupils means three miles: section 444(5)"

3. I note that there is no allegation of irrationality by the council or of a failure to consult on the part of the Council in considering the travel arrangements and that in my view is correct because the Council did clearly consider the effect on travel arrangements of pupils from the School having to move to Fazakerley High School as well as to De La Salle and St John Bosco schools although they need not have been considered on an individual basis. In my view the proposal of the free bus return bus service for the existing pupils was not Wednesbury [1948] 1 KB 223 unreasonable.
4. An additional and alternative reason why I reject Mr. Wolfe's complaints is that I must stress that the obligation of the Council under paragraph 4.40 of the Guidance was to "bear in mind" the factors set out in that paragraph. Compliance with them was not a precondition to closing the School. I reject this complaint.

(iii) Could the decision to close the School be impugned if the decision to close the School was taken before transport issues had been considered?

93. I have explained why adequate consideration had been given to transport issues before the decision to close the School had been taken but if I am wrong I must consider if I should reject the additional complaint of Mr. Wolfe that the decision to close the School can be impugned because the transport issues had not been considered before that decision had been taken. Even if aspects of transport by the siblings of displaced pupils of the School and other prospective pupils to Fazakerley High School were not considered before the decision was made to close the school that does not mean that the decision to close the school can be impugned. The position has to be considered as at the time when the matter comes before the court.

94. If that were not so, if a council closed a school without considering transport proposals but then subsequently before a judicial review application had agreed that a free taxi service would be provided for each pupil from his or her home to go to and from his or her new school, the court would not then impugn or quash the decision to close the school. After all, courts take a realistic approach to these problems. For those reasons it is necessary now to consider the present arrangements.

95. By the time of the hearing the council had agreed that it would provide a coach service for all the existing displaced pupils at the School who were moving to Fazakerley High School. At the hearing, I pointed out that the arrangements relating to Fazakerley High School would have the absurd effect that, for example, a 15 year old existing pupil of the School, who moved to Fazakerley High School would be provided with free transport to and from that school but his or her younger sibling who attended that school but who would otherwise have gone to the School if it had not closed would have to use public transport to go to Fazakerley High School and was not eligible for free transport. The council sensibly agreed at the hearing to reconsider that point and it subsequently decided that free return transport to Fazakerley High School would be given to the siblings of existing pupils at the school who after the School's closure start at Fazakerley High School. I consider that was a reasonable response to the problem of the transport issues especially as there was also assistance available to those who could invoke the statutory provisions. These new proposals reinforce my conclusion that the Guidance has been complied with.

(iv) Do the present transport provisions to Fazakerley High School constitute discrimination?

96. When Mr. Wolfe heard of the proposal to provide free transport to Fazakerley High School for siblings of existing pupils at the School who have been displaced, he submitted in writing that this was discrimination against prospective pupils at Fazakerley High School, who would have gone to the School but who were not entitled to free transport because they did not have siblings who were at the School at the relevant time.

97. The short answer to this is that the claimant has a 12 year old daughter at the School and another daughter aged 10 who would follow shortly. If the claimant's elder daughter goes to Fazakerley High School and then her sister follows, then both of them will be entitled to free transport. So neither of the claimant's daughters would be disadvantaged by the decision to provide limited transport and so I cannot accept Mr. Wolfe's complaint. In any event I have no idea where the claimant will send her daughters when the School closes.

IX The Delay Issue

98. For the purpose of completeness I should add that the defendant has sought to take a point on the delay in bringing proceedings and relied on that as another reason why the claim should be rejected. In the light of my conclusions that the claims cannot succeed it is unnecessary to consider this contention. I ought to say that my preliminary view is that there is no merit in the Council's assertion that the claim should be dismissed on grounds of delay especially as the claimant brought her claim within the prescribed three-month period.

X If the Claimant's Complaints are Justified, Would it be Appropriate to Grant Relief?

99. If, which is not the case, I considered that there was any merits in this complaint of the claimant, I would have had to consider whether no relief should be granted because other specific factors in the Guidance would have inevitably led to a decision to close the School as the Guidance states (with my emphasis added) that:-

i. "[Local authorities] should take action to remove empty places at schools that are unpopular with parents and which do little to raise standards or improve choice" (paragraph 4.35). As I have explained the School although popular with the claimants has many empty places and its academic record is substantially weaker than that of the other three schools;

ii. "The decision-maker should normally approve proposals to close schools in order to remove surplus places where the school proposed for closure has a quarter or more places unfilled and at least 30 surplus places and where standards are low compared to standards across [the local authority]". (paragraph 4.35). As the tables at paragraphs 7 and 8 show, the School would have had to be closed on that basis because it had 27% places unfilled, 250 surplus places and its percentage of 5 A*- C grades at GCSE was well below that of the other three schools and indeed under one-half that of two of the other schools.

100. In the light of my conclusions it is unnecessary for me to reach conclusions on these issues but I should say that there are powerful arguments for concluding that even if the claimant can show that some of her complaints are justified, she should not obtain relief. Factors which might be decisive are the statements in the e-mail from the Minister set out in paragraph 33 above which show that the Government considered the decision to close the School to be "a sensible proposal" and that would suggest that first the National Challenge Trust proposal concerning the School would not have succeeded and that BSF would not be available to a scheme involving the School. Another factor which might have been decisive in preventing the claimant from obtaining relief would be the decision made after the hearing and explained in paragraph 95 above to give free return transport to Fazakerley High School not merely to the existing pupils at the School but also to their siblings.

XI Conclusion

101. I appreciate that there is very strong feeling over the decision to close the School, but my task, as I have stressed is not to decide whether the school should be closed but whether the claimants have succeeded in showing breaches of public law or the rights of the claimant under the ECHR. For the reasons which I have sought to explain and notwithstanding the detailed and wide- ranging submissions of Mr Wolfe, I have concluded that this claim must be dismissed.