Test case challenges "Double Discrimination" of
Swansea's School Transport Policy

On 10 and 11 February 2015, a High Court Judge sitting in Swansea will hear a legal challenge brought to overturn a controversial and discriminatory school transport policy adopted by Swansea City and County Council. Under the new policy, from September this year, the Council will no longer provide free places on the school buses currently used by pupils attending voluntary-aided Catholic and Church of Wales schools in Swansea. Some children travel for up to an hour and 50 minutes on the buses to reach school each morning. However, at the same time, the Council will maintain free school transport on a parallel school bus network used by pupils at all of the county’s Welsh language schools, regardless of the financial circumstances of the families who benefit.

The test case is jointly brought by Bishop Vaughan Catholic Comprehensive School, the only Catholic and Church of Wales secondary school in the area, ‘Child W’, whose siblings currently attend the school using free school transport to which she will now not be entitled and the Diocese of Menevia, which supports five of the six affected schools.

They argue that the new policy is doubly discriminatory because it impacts particularly severely on Black and Minority Ethnic children (who make up a quarter of the children attending Swansea’s Catholic and Church of Wales schools, but only a tiny proportion in Welsh language schools) and on those who seek a Catholic or Church of Wales-based education.

Swansea Council is defending the policy on the basis that it needs to save money and the affected children are ‘statistically insignificant’.

Laura Howden-Evans, Bursar of Bishop Vaughan School said today:

"The new policy is brutal. If it stands, its impact will be devastating on Swansea children seeking a Catholic education. At our school, over half of the pupils live the most deprived areas of Wales, a fifth receive free school meals and a quarter rely on free school transport. Families like theirs will simply be unable to pay for transport to school once it is withdrawn. The first to be hit will be siblings of children already here, children just like Child W, who want to come to the school from September but need free transport to do so.

No one bringing this case has any wish to deprive children who seek an education in the Welsh language from accessing the Swansea schools where that is available. Theirs is an educational preference which demands respect for reasons too obvious to state. We have turned to the Court because other preferences arising from fundamental beliefs and connections to a community, in particular those for a Catholic education, also demand respect and, in our view, equal respect. There is no justification for treating Catholic and Church of Wales schools differently from Welsh language schools when it comes to free school transport."

The Diocese of Menevia is a Roman Catholic diocese based in Swansea, serving South West Wales’ 27,500 Catholics. Bernard Stuart, its Director of Education said today:

"Catholic schools are an integral part of the Catholic community. Their existence allows parents a genuine choice to educate their children in accordance with their religious and philosophical convictions. As Catholics, we in turn have a duty to ensure that choice is open to those who socially, academically, physically or emotionally disadvantaged. Service to those who are amongst the most disadvantaged in our society has always been central to the mission of Catholic education. Very regrettably, Swansea City and County Council does not see things this way. Withdrawing free school transport from those who need it most will make the exercise of their choice to attend local Catholic schools completely impractical. We are hopeful the Court will see that and overturn this invidious policy."

The solicitor bringing the case, John Halford, said today:

"People understand that local authorities are faced with hard financial choices. What they find very difficult to understand is a choice that bestows a benefit on one sector of the community who passionately want to be educated in Welsh, but withdraws it from another who, just as passionately, want to be educated in their own faith. Fairness, and the law, demand a very high standard of justification for discrimination of this kind. That justification is strikingly missing from the Council’s decision. In fact, it believed, and apparently still does, that it was not even discriminating."

Notes for editors:-

1. The test case will be heard at Swansea’s Civil Justice Centre by on The School, Diocese and Child W are represented by John Halford of Bindmans LLP, 0207 833 4433) and barristers Dinah Rose QC and Iain Steele of Blackstone Chambers.

2. The case is brought as a judicial review claim under the Equality Act 2010 and the Human Rights Act 1998. Judicial review is the special legal procedure that allows the High Court to examine public authority decision-making and rule on whether it is discriminatory or otherwise unlawful.

3. The case challenges the Council’s decision of 30 July 2014 to withdraw the provision of free transport from pupils attending voluntary-aided Catholic and Church of Wales schools in Swansea, save where they live more than two miles (primary) or three miles (secondary) from the school and there is no nearer alternative maintained school. The Council will continue to provide free transport for pupils who attend Welsh language schools, and who live more than two/three miles away, even where there are nearer alternative maintained schools.

4. The decision thus treats children who wish to attend Catholic and Church of Wales schools less favourably than children who wish to attend Welsh language schools.

5. The decision is due to take effect from September 2015, although transitional provisions will enable pupils currently in receipt of free transport to continue to do so while they remain in their current school.

6. Welsh language schools in Swansea attract a disproportionately small number of children of black and minority ethnic ("BME") origin. Overall, the percentage of children in Swansea Welsh language schools who are of BME origin is 2% (92 out of 4,586 children). By contrast, Swansea’s six denominational schools, five of which are Roman Catholic, are attended by children a significant proportion of whom are of BME origin. Overall, the percentage of BME children in Swansea Catholic and Church of Wales schools is 24.4% (728 out of 2,979 children). There are thus on average 12 times the proportion of BME children in Catholic and Church of Wales schools as in Welsh language schools in Swansea.

7. The issue of the discriminatory impact of the proposed new policy on BME children, and the need for the Council to consider it, was raised repeatedly with the Council before the decision was taken, both in writing and at meetings. Notwithstanding this, the Council proceeded on the basis that its decision had a neutral racial impact, and, in particular, that it did not place BME children at a particular disadvantage by comparison with White British children. That remains the Council’s position in its defence to the case. It also argues that the numbers of affected BME children are statistically significant in relation to the school age population of Swansea.

8. The School, the Diocese and Child W submit that the decision to adopt the new policy is unlawful for the following reasons:

It discriminates indirectly against BME children who require transport to reach the school of their choice. Such children are significantly more likely than white British children to attend Catholic and Church of Wales schools, and much less likely than white British children to attend Welsh language schools, and are thus placed at a significant disadvantage by comparison with white Welsh/British children who require transport to reach the school of their choice. The discrimination has not been justified, and thus constitutes an unlawful exercise of the Council’s functions contrary to sections 19 and 29 of the Equality Act 2010;

It discriminates indirectly against Catholic and other Christian children and parents who wish their children to be educated in that faith. The discrimination has not been justified, and is thus incompatible with Article 2 of Protocol No. 1 to the European Convention on Human Rights read together with Article 14 and is a breach of section 6 of the Human Rights Act 1998;

When taking the Decision, the Council misdirected itself in law as to the nature of its power under section 6 of the Learner Travel (Wales) Measure 2008. The Decision was taken on the basis of an Officers’ Report ("the Report") which wrongly asserted that the Council was under a duty to provide free transport to Welsh language schools. In fact, the Council merely had a discretionary power to do so, where there was a closer alternative school, just as it had the power to provide free transport to Catholic and Church of Wales schools in such circumstances;

he Council breached its duty under section 149(1) of the Equality Act 2010 to have due regard to the need to avoid unlawful discrimination, and to promote equality of opportunity;

The Officers’ Report lacked information needed to make a rational decision on what was proposed for school transport; and

During the Council meeting at which the Decision was made, further factually erroneous statements were made and unfairly allowed to stand unchallenged.

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