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High Court quashes council’s discriminatory Catholic school transport policy

Swansea City Council defended its policy by saying those children affected were 'statistically insignificant'

22 May 2015

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The High Court has ruled that Swansea City Council acted unlawfully when making changes to its school transport policy, which claimants argued had discriminated against Catholic parents.

Mr Justice Wyn Williams, presiding judge of the Wales circuit, handed down his judgment following a special hearing of the Administrative Court in Swansea's Civil Justice Centre.

While the ruling is said to affect thousands of Swansea schoolchildren, lawyers also say the decision will have ramifications for the way local authorities throughout the UK arrange school transport to faith schools, particularly when considering austerity-driven service cuts.

As SJ reported in February, the judicial review claim, brought under the Equality Act 2010 and the Human Rights Act 1998, challenged the council's decision from July 2014 to withdraw the provision of free transport from pupils attending voluntary aided Catholic and Church in Wales schools in Swansea, save where they live more than two miles from their primary school, or three miles from their secondary school.

The claimants argued that the policy indirectly discriminates on grounds of race by maintaining free transport to 12 Welsh language schools, where the intake is overwhelmingly white, while withholding it from prospective pupils of the county's six faith schools, five of which are Catholic and the remaining one Church in Wales. Pupils at those schools are more likely to be from black and ethnic minority (BME) backgrounds than the average Swansea child.

Barristers instructed by Swansea Council defended the policy on the basis that it needed to save money and that there was no discrimination because the affected children were 'statistically insignificant'.

However, Williams J held that: 'BME children will be at a particular disadvantage as compared with white British children as a consequence of the amended policy even on the basis of the most favourable statistical advantage open to the defendant... a BME child is 3.65 times more likely to be disadvantaged than a white British [child].'

The judgment also states that the council had been ignorant of the discriminatory effects of the policy despite completing an equality impact assessment, the policy could not be justified, non-discriminatory alternatives - including means testing the transport service - had not been properly considered, and officers had misadvised members of the full council who took the decision by telling them that they had an absolute duty to provide free school transport to Welsh language schools.

Representing the claimants, John Halford, a public law specialist and partner at Bindmans, commented: 'Starting with the earliest US civil rights cases, the law has persistently demanded equal treatment of those who use state-subsidised transport, particularly when they are school pupils.

'Whilst Swansea Council certainly had no intention of discriminating on grounds of race, that was the obvious effect of a policy which maintained free school transport for pupils at 12 schools whose pupils are overwhelmingly white and withheld it from six schools whose pupils' backgrounds are far more diverse. The failure to appreciate these effects was an egregious error of judgment which the court has now, quite rightly, corrected.'

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