High Court rules faith school transport scheme unlawful

The new policy would have seen the council continue to offer free transport to 12 Welsh language schools, where students were overwhelmingly white, but end it for the six faith schools, where pupils were more likely to be from black and minority ethnic communities.

Mr Justice Wyn Williams, presiding judge of the Wales Circuit, ruled the council acted unlawfully in July 2014 when it made the changes to its school transport policy.

He said: “It seems to me that that the claimants are correct in their assertion that 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 analysis open to the defendant.

“In summary 4.2% of white British children will enjoy the benefit of the amended policy compared with 1.15% of BME children; alternatively 95.8% of white British children will be disadvantaged by the amended policy compared with 98.9% BME children. The percentage difference in these scenarios - 3.1% - means that a BME child is 3.65 times more likely to be disadvantaged than a white British children.”

He found that Swansea had been ignorant of the discriminatory effects of the amended policy, despite completing an equality impact assessment, and that non-discriminatory alternatives including means testing had not been properly considered.

Council officers had wrongly advised councillors that they had an absolute duty to provide free school transport to Welsh language schools, the judge noted.

John Halford of Bindmans, who brought the case, said: “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.”

He said the council’s failure to appreciate the discriminatory impact of the policy had been “an egregious error of judgment which the court has now, quite rightly, corrected”.

A Swansea council spokesman said: “The judgement is helpful in clarifying the legislation governing home to school transport.

“Our aim is to bring forward further options which will address the education transport issues and place the support we are able to give on a fair and sustainable basis to helps those who are most in need.”

The council noted the judge had said it did not intend to discriminate, but the policy would have had that effect.

“We believed it was important to defend a democratic decision taken by councillors to no longer continue with this area of discretionary free transport,” the spokesman said.

“The original decision contributed to savings in one of the few discretionary areas of spending within the overall education budget so resources could be prioritised on classrooms, teaching and facilities.”