An interesting case crossed our desks the other day revolving around the provision of Welsh-language education in and around Pontypridd in South Wales. The case was a hefty one, primarily revolving around matters of education policy and the statutory requirements of referral to the Welsh Ministers for the closure of sixth forms (which involved a bold argument from the Council that the closure of a school with a sixth form and the reopening of the same school without a sixth form did not amount to the closure of a sixth form).

Of more interest to us however were some of the other grounds, notably that the Council failed to take into account a response from Estyn (the Welsh education regulator) to their consultation in line with the Welsh School Organisation Code 2013, and that they failed to take into account how the proposals to reorganise the local schools might impact the sustainability of Welsh language medium education in the locality, something that had already drawn an investigation from the Welsh Language Commissioner who was an intervening party in this case.

Welsh Language Ground

Probably the most interesting ground was the Welsh language ground. This was brought on the basis of provisions in the Welsh School Organisation Code, and the standards under the Welsh Language Standards (No. 1) Regulations 2015 which respectively mandate consideration of how proposals might affect Welsh medium education provision in the local area and that consultations should also seek views on the impact proposals have on Welsh medium provision.

Claimants argued that contrary to the Council’s position that they were not suggesting changes to Welsh medium secondary education in the area, the changes proposed to the Welsh medium primary education in the area would necessarily have an impact on the tier above, and that this should have been taken into account more thoroughly. The judge had little time for the Council’s position. Acknowledging the investigation of the Welsh Language Commissioner, it was determined that the consultation document did not identify anywhere questions about impact, and therefore fell short of expectations without good reason.

Although the Council had performed a Welsh Language Impact Assessment, it had neglected to properly consider the knock-on impact of closing the primary tier schools. In addition, the judge characterised the impact assessment as ‘inadequate’. In all, he said the Council had “failed entirely to consider how the reorganisation would impact upon Welsh medium secondary education.”

The Estyn Ground

The other argument that claimants advanced was that the Council had not taken into account the response of Estyn when considering their proposals, as they are mandated to do under paragraph 1.3 of the Code. On this ground, the Council had an easy defence as the entirety of the Estyn responses to the proposals were included in the consultation report. Further to this, the claimant argued that the Council had not published a summary of the statutory objections, nor had they responded to them as obliged to by paragraph 5.1 of the code. In answer to this second point, the defendants argued that Estyn’s response was not a statutory objection, and that despite the fact that some points in the Estyn response had been adopted by other objectors, those responses were responded to in the report.

In the event, the judge agreed with the Council. Although he recognised the need for objections to be responded to, he noted that there was no obligation under the statute to respond in a particular manner, or with a particular amount of detail. He also agreed that there was “some force” in the arguments of the Council that the true nature of the Claimant’s complaint was not that there was no response, but more that they disagreed with the content or quality of the responses. In this, he concurred with Munby J in R (Beale) v Camden LBC [2004].

So what does this case mean for consultors? It represents a clear reminder for those consulting on education in Wales that you must consider the impacts your decisions will have, not only directly but also on other facets of the educational establishment. The case also drew a clear distinction between mandatory and directory guidance- the difference between when a consultor must do something, and when it should do something.

One of the places that the Council fell short here was in not including sufficient detail in their documentation. Outside of the ‘inadequate’ Welsh Language impact assessment, they could bring up no real evidence to show that they had considered the consequences and had not even tried to address or rationalised what should possibly have been an obvious point- that reducing provision for one age group would necessarily impact upon another.

Although the Welsh Language Commissioner’s findings in their investigation were not determinative in this proceeding (the two being separate procedures), the Court identified that their findings were not irrelevant. For consultors outside of education, this is perhaps the more pressing point. Although the Welsh Language Commissioner may not have the same broad powers as the High Court, findings of its investigations may well weaken a case.

One final point to be taken here comes from rather early in the judgment, where the judge gave an important reminder of one of the key principles of public consultation that consultors sometimes struggle with:

I have already explained that the Claimant is part of a campaign group. Mr Imperato gave evidence about the concerned local parents and campaigners involved. Objections from a well organised group would, one hopes, be considered in the same way as less well organised objections. They should not be given lesser weight because they originate in an organised manner…