Perth and Kinross Council’s petition for judicial review of call-in notice dismissed

The Outer House of the Court of Session has refused a petition for judicial review of the decision by the Scottish Ministers to issue a call-in notice in respect of a local authority’s decision to implement a proposal to close a rural primary school.

Perth and Kinross Council notified the Scottish Ministers on 27 May 2019 of their decision to close Abernyte Primary School, located in a village around seven miles west of Dundee. Following a consultation period, a call-in notice was issued for the decision, which the council sought to reduce.

The petition was heard by Lady Wise.

8 out of 44 pupils

The school in question, Abernyte Primary School, was identified as a challenge to the management of the petitioner’s school estate in 2016. It was previously noted by the petitioner as having low occupancy, with capacity recorded at 8 out of a possible 44 pupils using the building in 2016. The other nearest primary school to it was Inchture Primary School, located 3.4 miles away.

Following an initial options appraisal, it was concluded that an increase to Abernyte’s catchment area would be insufficient to increase pupil numbers to a sufficient level to ensure its future stability. The petitioner’s Lifelong Learning Committee thereafter recommended that a statutory consultation on the closure of the school take place.

Following the consultation period, notification was given to the Scottish Ministers about the decision to close the school. Whilst the consultation had raised issues relating to the reliability of the data used by the council, in particular on pupil projections and the availability of a playing field in the area, the petitioner concluded that no material inaccuracies or omissions had been made in the paper. It also provided an estimate of £330,000 as the cost of upgrades to the school building if it did not close.

A call-in notice of the decision was issued on 23 July 2019 following assessment of the documentation accompanying the proposal. The notice identified three areas of concern. The first was that the estimated upgrade cost seemed too high for a school of its condition. The second was that the council had failed to describe previous measures taken in the past to address the reasons it gave for closure, or explain why it had not taken such measures.

The third reason was that there was doubt regarding whether the council had “special regard” to the likely effect of the closure on the local community, as required by the Schools (Consultation) (Scotland) Act 2010 where the closure of a rural school is considered. It was noted that there seemed to be some distance between the local authority and the community, and that they had underestimated the level of current community use as well as not considered any appropriate alternative venues.

Counsel for the petitioner submitted that the council had gone to considerable lengths to explore all of the options for Abernyte before concluding that there was no available route for generating sufficient pupil numbers. It was also submitted that there was a lack of adequate reasons in the decision to issue a call-in notice, and that procedural fairness required the respondents to seek further information from the petitioner before issuing the notice.

It was also submitted that the figure provided for refurbishment costs was comparable to other schools of similar condition in the area that had recently undergone refurbishment, and there was a lack of detail in the explanation for why the £330,000 figure was considered to be too high. It was also stated that the cost of upgrades was not a material factor in the decision to propose closure, and so it was disproportionate to state that there was a failure in regards to provision of financial information by the respondents.

Clear justification

In her opinion, Lady Wise began by outlining the purpose of the Scottish Ministers in reviewing closure notices, saying: “In the legislative scheme under discussion in this case, the Scottish Ministers are conducting a safeguarding or gatekeeping function. Their decision is not one that disposes of the substantive issue of whether the petitioner’s decision on closure of a school was taken in accordance with legislative requirements, but only whether there are grounds for remitting the question of whether there has been a relevant failure to the independent panel. In the context of the 2010 Act and its purpose, it can easily be concluded that the absence of a procedural requirement on the respondents to engage with the local authority before reaching a decision on calling-in is not a barrier to achieving fairness.”

Regarding procedural unfairness, she said: “Once the different roles of the education authority, the Scottish Ministers and the panel are properly understood, it becomes apparent that the call-in stage is one of those situations in which there is clear justification for departure from the usual rule that someone knows of and is given a chance to respond to complaints against them as it is only a step in a larger process and not the ultimate decision. I reject the complaints of procedural unfairness made by the petitioner.”

Lady Wise also held that the respondents were “entitled and obliged” to consider the financial considerations in the decision, saying: “The respondents’ tentative view that the petitioner has overstated the savings that would result from the closure of Abernyte is justified by an analysis of the papers, which illustrate that using the petitioner’s own figures, the cost of refurbishment over the next five years would be significantly less than £330,090 (by at least £90,000, more if the duplication point is resolved by priority 3 costs being overstated).”

Regarding the argument that the council had previously taken steps to address the pupil roll issue, she said: “The starting point for a local authority must be to address a falling school roll in a way that avoids the spectre of closure. Only if the problem can’t be addressed, and the local authority can explain why that was, can it properly move to the next stage. Identification of alternatives is not synonymous with addressing a problem and is part of the later stage. Conducting a review of a catchment area is not tantamount to addressing a falling school roll problem; making alterations to a catchment area would be different and could well constitute an attempt to address the issue.”

On the community impact arguments, she said: “[T]here are references [in the respondents’ report] that illustrate an understanding that trivial points or gaps in knowledge by the council would not matter (and so not meet the test). For example there is reference to the ‘significant distance’ between the local authority and the community in relation to the community impact issue generally, a reference to the large number of responses on this point and the strength of feeling that the Council had misunderstood the position. Further, the uncertainty about the ownership of the playing field is also said to cast ‘significant doubt’ as to whether the council has complied with the special regard test in [the 2010 Act] and for the reasons given the conclusion the council reached regarding the use of the church may also be wrong. Taken together, these examples highlight the issue as an important one because the differences are not merely of detail but suggest that the Council’s approach to this statutory requirement lacked rigour on matters that were of real concern locally.”

For these reasons, the petition was dismissed.