THE PROPOSED
CLOSURE OF PENTRE
PRIMARY SCHOOL
OBJECTION BY
PENTRE PRIMARY
ACTION GROUP
1. INTRODUCTION
1.1 Pentre
Primary Action Group (“PPAG”) is an organisation which has been formed for the
purpose of objecting to the proposed closure of Pentre Primary School. It submits this objection in response to the
Notice published by Rhondda Cynon Taff county Borough Council (“the Council”)
on 6 September 2013 pursuant to which notice the Council proposed to “discontinue”
Pentre Primary School.
1.2 Annexed
to this written Objection are three Appendices, namely –
Appendix A – the report dated 22 April 2013 in which the
closure of Pentre Primary School was first proposed;
Appendix B – a document entitled “Legal Objections Arising
from the Proposal”; and
Appendix C – a document entitled “Action Group’s Letter to
the Director of Education”.
1.3 Appendices
B and C are produced by PPAG and set out in some detail its case for objecting
to the way in which the Council has approached the decision making process which
led to the proposal to close Pentre Primary School and its case for opposing
the proposed closure. The purpose of
this document is to set out in succinct form the reasons why the Welsh Assembly
Government should not approve the Council’s proposal. That being so, this document (which for ease
of reference is hereinafter called “the Objection”) is to be taken to
supplement the contents of Appendices B and C and whilst the points set out in
those Appendices are not repeated in extenso in the Objection, PPAG
maintains its reliance on those points.
1.4 PPAG’s objections to the proposed closure are
ordered as follows –
(i)
under Section 2 below it sets out the relevant
background;
(ii)
under Section 3 it sets out its case that the Council
in formulating the proposal to close Pentre Primary School failed to take account of matters to which it
was obliged to have regard;
(iii)
under Section 4 below it submits that the Council’s
consultation process was fatally flawed in that –
(a)
it was not undertaken at a formative stage of the
proposal; and
(b)
it is evident that the decision to close Pentre Primary
School had already been made prior to that process (or at least prior to that
process’s completion); and
(iv) under
Section 5 it sets out the conclusions it asks the Welsh Assembly Ministers to
reach.
2. THE BACKGROUND
2.1 On
22 April 2013 Mr. Chris Bradshaw, the Council’s Director of Education and
Lifelong Learning, presented a proposal to the Council’s cabinet that Pentre
Primary School should be closed. The
report in which that proposal is set out forms Appendix A to this Objection.
2.2 At
the meeting of the Council’s cabinet to which the proposal was initially
presented, its member for education, Eudine Hannigan stated when asked about
the impact that the proposal might have on the wider community of Pentre said
that “the shopkeepers and community of Pentre are no concern of ours”.
2.3 The
Council thereafter purported to carry out the consultation process which it was
obliged to follow and on 6 September 2013 published notice of its decision to implement
the proposed closure of Pentre Primary School.
A copy of that notice is annexed hereto at Appendix D.
3. THE COUNCIL’S
FAILURE TO CONSIDER
RELEVANT MATTERS
A. Preamble
3.1 PPAG’s
position is that –
(i)
the Council was obliged to follow the guidance provided
in “School Organisation Proposals : Welsh Assembly Government Circular No.
021/2009” (“the Circular”);
(ii)
it failed in a number of material respects to follow
that guidance; and
(iii)
those failures (when considered cumulatively) render
its decision invalid.
3.2 PPAG
summarises its case in respect of each of those issues separately and in turn
in the remainder of this Section.
B. Guidance
3.3 The
Council did not make its decision in a vacuum; it was obliged to follow the
guidance set out in the Circular. For
ease of reference a copy of the Circular is annexed hereto at Appendix E. Whilst at the time the Council published its
proposal to close Pentre Primary School it was not under a statutory obligation
to take into account the guidance contained in the Circular, a failure on its
part to do so would nevertheless amount to a significant failure in the
decision-making process; the language used at page 2 of the Circular under the
heading “Overview” and at its sub-paragraph 1.7 under the heading “Who
must have regard to this guidance ?” is clear – following the guidance is
intended to be a mandatory requirement.
3.4 In
the circumstances, PPAG’s position is that a material failure to take into
account the guidance contained in the Circular would render the Council’s
decision making process flawed to the extent that it should be subject to
critical review – either by the welsh Assembly Government or by the courts.
C. Failure to
Follow the Guidance
3.5 PPAG
accepts that the Council was not obliged to follow each element of the guidance
contained in the Circular; sub-paragraph 1.8 o that document makes it clear
that “not all considerations will be relevant in every case”. That said, its position is that here the
Council failed to take into account considerations which were clearly material
if not central to the decision it was to make.
3.6 PPAG
identifies the following as key areas of guidance to which the Council failed
to have regard –
(i)
the impact the proposal would have on local families
and the local community, through a community impact assessment – see
sub-paragraph 1.12(i) of the Circular;
(ii)
whether or not the proposal would contribute to the
Welsh Assembly Government’s strategy for tackling child poverty – see
sub-paragraph 1.12(iii) of the circular; and
(iii)
the effect on journeys to school – see sub-paragraph
1.22.
PPAG summarises its cases on each of those three issues
under the following three sub-paragraphs, but in so doing stresses that the
fact that it emphasises these three issues is not to be taken as its abandoning
reliance on the other issues set out in Appendices B and C.
3.7 The
impact that the proposal would have on local families and local communities is
patently one of the issues to which the Council was to have regard in making
its decision; the fact that it belatedly produced what it calls a “Community
Impact Assessment” is an acknowledgment of that obligation. A copy of that Community Impact Assessment is
annexed hereto at Appendix F. PPAG’s
position is that –
(i)
The Council’s Community Impact Assessment is wholly
inadequate. Whilst PPAG acknowledges
that at Annex B to the circular there is guidance to the effect that the
preparation of such an assessment should not be “unduly burdensome”, the
document on which the Council relies (PPAG assumes in support of the
proposition which the Council will no doubt advance that it has complied with
sub-paragraph 12.1(i) of the Circular) is wholly inadequate; it is a document
which bears all the hallmarks of having been to produced with a minimum of
thought and in very much of a hurry, simply to “tick a box”.
(ii)
PPAG realises that the accusation it makes under
sub-paragraph (i) above is a serious one and will be subject to careful
scrutiny. In support of its assertions
concerning the Council’s approach to and motivation for producing that
“Community Impact Assessment” it relies upon –
(a)
the fact that a community impact assessment should have
been an important document as far as the initial proposal to close Pentre
Primary School was concerned, but yet no such assessment was carried out prior
to the recommendation for closure being made; and
(b)
the fact that on 22 April 2013 Eudine Hannigan said
that “the shopkeepers and community of Pentre are no concern of ours” in
circumstances where the required community impact assessment had not been
carried out speaks volumes for the Council’s regard for the need to fulfil that
requirement and did not bode well for its properly considering the impact of
the proposal on the community if and when it decided to carry out a community impact
assessment.
(iii)
In the circumstances, PPAG’s position is that the
Council is that the Council has –
(a)
paid only lip service to the need for a community
impact assessment; and
(b)
patently failed to give proper consideration to what
should have been a vital and central element in its decision making process.
3.8 There
is nothing to indicate that the Council has given the slightest consideration
ot the effect on its proposal on tackling child poverty. PPAG’s case is simple –
(i)
Pentre is one of the most deprived areas in Europe;
(ii)
child poverty should therefore have been at the
forefront of the Council’s (collective) mind in addressing the question of
whether or not it was right to close Pentre Primary School;
(iii)
had it properly considered that issue, it would have
realised (if for no other reason) that the costs of transport to and from
school (as to which see page 2 of Appendix C) would be substantial and would
have an extremely detrimental effect on many already poor families.
3.9 As
far as the effect of the proposed closure on journeys to school is concerned,
again PPAG’s case is simple –
(i)
Sub-paragraph 1.22 of the circular addresses road
safety issues. This should have been an
important consideration for the Council and ought to have been addressed prior
to the making of the recommendation contained in the Report of 22 April 2013.
(ii)
The Council may have belatedly purported to take into
account road safety issues, but –
(a)
PPAG repeats the comments it makes in respect of the
Council’s community impact assessment, as far as its (the council’s) motivation
is concerned in now purporting to consider these issues; and
(b)
there has been no assessment of the likely impact on
road safety of the proposed Tesco development at the Cae Mawr Industrial
Estate.
(iii)
On the basis of the contents of the last two preceding
sub-paragraphs, PPAG submits that the Council has again patently failed to take
into account in making its decision a vital issue which it was obliged to give
weight to in assessing whether or not the proposed closure was necessary.
D. The Effect
of the Failures
3.10
It is trite law that a decision making bodies to take
into account in reaching a decision those matters to which they are obliged to
have regard in the decision making process.
3.11
Here, the Council was obliged –
(i)
to give consideration to the three issues set out
above; and
(ii)
failed to do so in that –
(i)
it did not consider those issues at the time it was
obliged to do so; and
(ii)
when it purported belatedly to consider the impact of
the proposed closure on the community and upon road safety issues it paid no
more than lip service to its obligation to take those matters into
consideration.
3.12
In the circumstances, PPAG’s position is that the
Council’s decision to close Pentre Primary School is fatally flawed and cannot
stand.
4. THE CONSULTATION
PROCESS
A. Preamble
4.1 PPAG’s
position is that –
(i)
the law required the Council to undertake a proper
consultation process; and
(ii)
the Council failed to fulfil its obligations in that
regard in that –
(a)
it did not conduct the process when the proposal to
close Pentre Primary School was at a formative stage; and
(b)
it did not give sufficient reasons for the proposal;
(c)
it did not conscientiously take into account the
responses it received when finalising that proposal.
4.2 PPAG
sets out its understanding of the law under sub-paragraph 4.3 and 4.4 below,
its position insofar as the stage at which the Council invited responses as
part of the consultation process at sub-paragraphs 4.5 and 4.6, its case that
the Council did not give sufficient reasons for its proposal at sub-paragraph 4.7 and its case that the Council has not conscientiously
taken into account the responses it received under sub-paragraphs 4.8 to 4.10 .
B. The Law
4.3 In
order to render its decision to close Pentre Primary School lawful, the Council
was obliged to undertake a consultation process. Further, that consultation process had to
comply with the following requirements –
(i)
it had to take place when the proposal was still at a
formative stage;
(ii)
the Council had to give sufficient reasons for its
proposals;
(iii)
the Council had to allow an adequate time for
responses; and
(iv) it
had to take conscientiously into account the responses it received when
finalising its decision.
The above principles were first laid down in the case of R
v. Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 and
were approved by a very strong Court of Appeal (Woolf MR, and Mummery and
Sedley LLJ) in R v. North and East Devon Health Authority, ex parte
Coughlan. That they still apply
is beyond doubt – a recent example of their application being by Singh J. in R
v. Devon County Council, ex parte West Care Homes Limited [2012] EWHC (Admin)
1867.
4.4 PPAG’s
position as far as the law is concerned is this – if the Welsh Assembly
Government finds that the Council did not properly carry out the consultation
process in accordance with the above principles, then the decision was unlawful
and cannot be ratified.
C. The Time
of the Consultation
4.5 PPAG’s
position is again straightforward – it is evident that the Council embarked
upon the consultation process at far too late a stage; its proposal had in
effect been finalised before it did so.
In short, those who might have wished to object to the proposed closure
of Pentre Primary School were in effect presented with a fait accompli.
4.6 The
basis upon which PPAG puts the above submission is as follows –
(i)
it is evident from the report of 22 April 2013 (see
Appendix A) that the proposal to close Pentre Primary School was already fully
formulated;
(ii)
in so saying PPAG invites attention to the amount of
detail in the report (which it submits would not have appeared had the proposal
not been at an almost complete stage);
(iii)
further, had the proposal been at an early stage one
would have expected to see amendments to it (if only consisting of the addition
of further detail) and that is a feature which is notably absent; and
(iv) finally,
the fact that Eudine Hannigan stated (see sub-paragraph 3.7(ii)(b) above)
stated that she was not concerned in the “shopkeepers and community of Pentre”
is indicative of a member of the Council’s cabinet addressing a decision which
she considered had already in effect been made, because otherwise she would
have realised that community considerations were an important aspect of the
matter – and one which the council had failed to address.
PPAG’s position is that the taken together the factors set
out above lead inevitably to the conclusion that the proposal was well past the
formative stage when the Council embarked upon the consultation process.
D.
Insufficient Reasons for
the Proposal
4.7 PPAG
does not wish to indulge in unnecessary repetition and so puts its case that
the Council failed to give sufficient reasons for its proposals very shortly. The fact is that the Council should have
addressed the impact of the proposals on the community, its likely effect on
child poverty and potential road safety concerns in making its proposal (as to
which see sub-paragraphs 3.7, 3.8 and 3.9 above) and did not do so. It is hard to see how the Council could
maintain that in the light of those failures it gave sufficient reasons for its
proposals, because in order for such reasons to be sufficient they would have
to include reference to all matters the Council was obliged to take into
account and they did not do so.
E. Taking Responses
into Account
4.8 PPAG’s
position is that –
(i)
it was evident from the outset that the Council had
little if any intention of conscientiously taking into account the responses it
received in the course of its consultation; and
(ii)
the council has not in fact taken any proper account of
those responses.
4.9 That
the Council lacked the intention of taking into account any responses it might
receive is demonstrated by its ignoring or belittling the factors which tell
against the proposal to close Pentre Primary School and in particular –
(i)
its ignoring in formulating that proposal the vital
issues mentioned in sub-paragraphs 3.7, 3.8 and 3.9 above (community impact,
child poverty and road safety issue);
(ii)
the attitude of its cabinet member for education,
Eudine Hannigan, in glibly if not brutally dismissing any consideration of the
impact the proposal might have on the local community.
4.10
The Council’s failure properly to take into account the
responses it has received is clearly demonstrated b y its failure to publish a
balanced report which evidences that the Council has taken into account the
many objections it has received in response to its proposal. PPAG is unable to identify any documentary or
other evidence which demonstrates that the Council has taken any account
(whether conscientiously or otherwise) the responses it has received during the
consultation process.
5. CONCLUSIONS
5.1 PPAG
submits that on the basis of the submissions it has set out above the only
conclusion the Welsh Assembly Government can reach is that the Council’s
proposals, consultation process and decision were all flawed and hence that the
decision to implement the proposal itself is unlawful.
5.2 PPAG
therefore asks the Welsh Assembly Government to refuse to ratify the council’s
decision to “discontinue” Pentre Primary School.
GERARD M . HEAP
Clerksroom
Counsel
for Pentre Primary Action Group
THE
PROPOSED
CLOSURE OF PENTRE
PRIMARY SCHOOL
OBJECTION BY
PENTRE PRIMARY
ACTION GROUP
Edger Cule
& Evans
Solicitors
213 Ystrad
Road
Pentre
Rhondda Cynon
Taff
Ref
: DD/5998-01PEN
