THE PROPOSED CLOSURE OF PENTRE PRIMARY SCHOOL
PENTRE PRIMARY ACTION GROUP
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
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.
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
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  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.
5.1 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
Counsel for Pentre Primary Action Group
THE PROPOSED CLOSURE OF PENTRE PRIMARY SCHOOL
PENTRE PRIMARY ACTION GROUP
Edger Cule & Evans
213 Ystrad Road
Rhondda Cynon Taff
Ref : DD/5998-01PEN