Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> McAfee (a minor), Re Application for Judicial Review [2001] NIQB 20 (20 June 2001)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/20.html
Cite as: [2001] NIQB 20
[New search] [Printable RTF version] [Help]
Neutral Citation no. [2001] NIQB 20
Ref:
COGC3442
Judgment: approved by the Court for handing down
Delivered:
20.06.2001
(subject to editorial corrections)
COGHLIN J
In these proceedings Ronan Patrick McAfee ("the applicant") seeks judicial review of decisions by the North Eastern Education & Library Board ("the Board") and the Department of Education for Northern Ireland ("the Department") refusing to grant the applicant transport assistance for attendance as a pupil at St Paul's College, Kilrea.
Background facts
The applicant, who was born on 26 March 1987, resides with his parents at 47 Bann Road, Ballymoney, and in September 1998 he commenced his first year of secondary schooling at Our Lady of Lourdes Secondary School, Ballymoney. This school is located a relatively short distance from the applicant's home. Initially, the applicant appeared to be happy at school but he then became the subject of verbal and psychological abuse from a small number of pupils. The applicant was isolated and excluded from conversations at break and lunchtime. He was made the subject of adverse comment for the efforts he made at his school work. The applicant became frightened, unhappy and withdrawn and his parents discussed the matter with various teachers. The situation did not improve and on 29 January 1999 his parents wrote to the Headmaster, Mr McHenry. No formal reply was ever received of this letter although the applicant's parents did speak to both the teacher in charge of attendance and the Head of Pastoral and Discipline. At one stage the applicant's father suggested the possibility of transferring the applicant to a different class but, since the applicant, being a child with special needs, was in the remedial stream, this would have resulted in his having to compete at a higher academic level with a larger number of pupils. The applicant was absent from school for significant periods during the Easter and summer terms of 1999 and on 12 July 1999 his parents wrote to the Board of Governors of Our Lady of Lourdes Secondary School. On 21 September 1999 the Chairman of the Board of Governors replied suggesting that a teacher would act as a Counsellor with regard to relationships in the applicant's class and that she would attend a conference on bullying on 30 September.
As a result of the lack of progress that had been made from January 1999 to the end of the summer term, the applicant's parents lost faith in the ability of the school to deal with the situation and the applicant refused to return to school following the summer vacation. He informed his parents that if he was forced to go back to the school he would "run away".
In November 1999 the applicant's parents obtained a report from his GP, Dr McCartney, which confirmed the history of persistent bullying and the applicant's reaction thereto. Dr McCartney expressed the view that:
"It would appear that this situation is beyond resolving and I feel Ronan's educational needs are undoubtedly suffering and that he would be best placed at a new school as soon as possible."
It seems that a similar view was expressed to the Board by Dr Jack, the Community Paediatrician Medical Officer, when she reported on the 10 February 2000. Dr Jack advised the Board's Education Welfare Service that it would be best for Ronan to transfer school as in her opinion it could be detrimental to his mental and physical health if he were forced to return to Our Lady of Lourdes School.
In November and December 1999 the applicant's parents contacted both St Paul's School, Kilrea, and St Joseph's High School, Coleraine, enquiring about the availability of a school place for the applicant. On 1 February 2000 the applicant was offered a place at St Joseph's High School, Coleraine. The applicant's parents did not respond to this offer but subsequently took up an offer for the applicant to attend St Paul's School, Kilrea. It appears that this decision may have been influenced by the fact that a cousin of the applicant also attended St Paul's and the applicant has subsequently settled well and made progress at his new school.
On 16 February 2000 solicitors acting on behalf of the applicant's parents wrote to the Board seeking travel assistance for the applicant to travel from his home to St Paul's School, Kilrea, there being no regular bus service between Ballymoney and Kilrea. On 29 February 2000 the Board's Transport Officer refused his application upon the ground that there was a suitable school, namely, Our Lady of Lourdes High School, within the statutory walking distance of three miles from the applicant's home and that there were no circumstances such as to attract a discretionary award of assistance by the Board. Following further representations by the solicitors for the applicant's parents the matter was reviewed by the Board's Chief Administrative Officer, Mr Harper who wrote to Mr & Mrs McAfee on 26 June 2000 emphasising the Board's concern about the applicant's continued withdrawal from school and the need to re-integrate him into a school environment as soon as possible and offering, in such circumstances, to recommend the provision of an annual travel pass, subject to Department approval. After a number of reminders the Department eventually wrote to the Board on 24 August 2000 confirming that, under the terms of the current home to school transport policy, the applicant was ineligible for transport assistance to and from St Paul's School, Kilrea.
On 25 August 2000 Ms Shaw, the Board's Chief Educational Welfare Officer, and Mr Dwyer, a senior Educational Psychologist employed by the Board, met the applicant's parents to discuss proposals to facilitate the applicant returning to school. As part of a package of support offered to the applicant in starting his new school the Board offered to reimburse the cost of transport, provided that it did not exceed £395 per annum, subject to confirmation of the applicant's satisfactory attendance. The terms of this package were confirmed by letter, dated 12 September 2000, from the Board to the applicant's parents. In the same letter the Board noted both the continuing availability of places at St Joseph's High School, Coleraine, and the existence of a public bus service operating between Ballymoney and Coleraine. It seems that the sum of £395 represents a refund of the maximum sessional bus ticket cost between Ballymoney and Coleraine.
The statutory and policy background
Article 52 of the Education and Libraries (Northern Ireland) Order 1986, as inserted by Article 23 of the Education (Northern Ireland) Order 1997, provides as follows:
"Provision of transport for, and payment of travelling expenses of, certain pupils
52.-(1) A Board shall make such arrangements for the provision of transport and otherwise as it considers necessary or as the Department may direct for the purpose of facilitating –
(a) the attendance of pupils at grant-aided schools; and
(b) the attendance of relevant pupils at institutions of further education;
and any transport provided under such arrangements shall be provided free of charge.
(2) Arrangements made by a Board under paragraph (1) (other than arrangements made in pursuance of a direction of the Department) shall be subject to the approval of the Department.
(3) A Board may, in accordance with arrangements approved by the Department, provide transport for, or pay the whole or part of the reasonable travelling expenses of –
(a) pupils attending grant-aided schools; and
(b) relevant pupils attending institutions of further education, for whom the Board is not required to make provision under arrangements made under paragraph (1)."
Article 45 of the 1986 Order reads as follows:
" 45.-(1) The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have, either by regular attendance at school or otherwise.
(2) The provisions of Schedule 13 shall apply to the enforcement of the provisions of paragraph (1) and a parent who contravenes the provisions of the Schedule shall be guilty of an offence and liable to the penalties provided by paragraph 4 of that Schedule."
The relevant portion of Schedule 13 (as amended) provides:
" (2) For the purposes of sub-paragraph (1) and of any proceedings brought under paragraph 4 in respect of a child who is not a boarder at the school at which he is a registered pupil, the child shall not be deemed to have failed to attend regularly at the school only by reason of his absence therefrom –
…
(b) If a parent proves –
(i) that the school in which the child is a registered pupil is not within walking distance of the child's home; and
(ii) that the child is one for whom the Board is required to make provision under Article 52(1) but no suitable arrangements have been made by the Board for his transport to and from school; and
(iii) that no suitable arrangements have been made by the Board for boarding accommodation for the child at or near the school or for enabling him to become a registered pupil at a school nearer his home."
In Re Brownlee's application [1985] NI 339 Hutton J, as he then was, reviewed a number of English authorities in relation to the equivalent legislation then in force in Northern Ireland and held, at page 347, that it was correct to construe Article 41 (now Article 52) in the light of paragraph 3 of Schedule 9 (now Schedule 13) because in stating the defences open to a parent when his child does not regularly attend school, paragraph 3 (Schedule 13) by implication specifies the circumstances in which the Board is under a duty to make arrangements for the provision of transport. However, the learned judge went on to hold, at page 349, that interpreting Article 41 (now Article 52) in this way meant that the duty imposed on the Board to provide transport was a duty only in respect of a child who lived more than "walking distance" from the school, as defined by paragraph 3(6) from the school. Therefore, the learned judge concluded, if a child aged under eleven lived within two miles of his school the Board was under no duty to provide public transport for him. Hutton J went on to state that the duty imposed on the Board was a duty only to provide transport to the school (appropriate for the age of the child) nearest to his home. He considered that if parents chose to keep the child at a more distant school, the Board was under no duty to provide transport to that school. Sub-paragraph (5) of Article 52 confirms that transport provided pursuant to any arrangements made in accordance with sub-paragraph (3) will not necessarily be free of charge.
On 31 October 1996 the Department published its policy for school transport arrangements in the form of Circular No 1996/41. That Circular requires Boards to have regard to the statutory walking distance and provides that where there is a suitable school, defined in paragraph 3.5, within statutory walking distance transport assistance will only be provided to a school outside statutory walking distance where the pupil has been unable to gain a place at a suitable school within statutory walking distance. Where there is no suitable school within statutory walking distance the arrangements allow for the provision of transport assistance provided that a suitable Board or public transport service is already available to a school outside statutory walking distance. Under the heading "Exceptional Circumstances" paragraph 9 of the Circular provides:
"9. The application of the rule relating to statutory walking distance may not always be appropriate and it is for the Board to consider any case which is thought to be outside the provisions in the preceding paragraphs. An example of where a Board might wish to exercise discretion would be where there is an exceptional road safety hazard."
On 7 September 1998 the Board published its "Home to School Transport Policy" to be read in conjunction with and as an extension of the Department Circular No 1996/41. Paragraph 4.1 of this policy provided that:
"4.1 The Board accepts that the concept of choice embodied in the 1986 and 1989 Education Orders is an important principle and will as far as possible facilitate this in relation to enrolment from pupils in schools. However, the Board is also charged with ensuring under Article 44 of the 1986 Education Order that in taking account of parental preference the Board should avoid 'unreasonable public expenditure'."
At paragraph 4.2 the Board indicated that when considering the cost of providing transport for a pupil attending a primary or secondary school the cost should be reasonably comparable to the cost of an Ulsterbus Sessional ticket.
The submissions of the parties
Mr Paul McLaughlin appeared on behalf of the applicant while the Board was represented by Ms Gibson and Mr Maguire appeared on behalf of the Department. I am grateful to all three counsel for the clarity and economy of their submissions.
The statutory duty to provide transport free of charge
On behalf of the applicant Mr McLaughlin submitted that the Board were under a statutory duty to provide free transport for the applicant since, in accordance with a decision in Re Brownlee, the applicant's parents would have a defence to a criminal charge on the ground that the applicant was a registered pupil at a school, namely, St Paul's, Kilrea, which was not within walking distance of the applicant's home and that no suitable arrangements had been made by the Board either for transport or for boarding accommodation. I reject this submission on the ground that, prior to the impugned decisions, the applicant was a registered pupil at Our Lady of Lourdes Secondary School, Ballymoney, which is within the statutory walking distance of the child's home. Furthermore, I accept the view expressed by Hutton J, as he then was, in Re Brownlee's application that the duty under Article 52 does not apply if there is a school appropriate to the age of the child within the statutory walking distance of his home but the parents choose to send him or her to a more distant school.
The discretion of the Board and/or Department
Before dealing in detail with this aspect of the application I shall make some general observations:
(i) There can be few more difficult or distressing experiences for either a parent or a child than for the child to be subjected to persistent bullying at school, especially when starting at a new school. In that context despite the interviews with Mrs Bell and Mr McAlonan, the absence of any reply by the Headmaster of Our Lady of Lourdes School to the letter from the applicant's parents of 29 January 1999 is, to say the least, surprising. The apparent explanation that the Principal "thought" that the parents knew "the problem was being dealt with" is unlikely to have been of any great comfort to the parents nor are they likely to have been impressed by the reaction of the Board of Governors which was to defer formal discussion of the problem until 16 September 1999. I note that the Board appeared to have been critical of the parents in their letter of 21 September 1999 for failing to "explore the programme set out by Our Lady of Lourdes", but the more material question seems to me to be why it took virtually a full school year for the school to devise and propose such a programme. I also have some concern that, despite having been advised by the Community Paediatrician Medical Officer that, in her opinion, it could be detrimental to the applicant's mental and physical health if he was forced to return to Our Lady of Lourdes School, Mr Harper of the Board was able to state in his letter to the parents of 26 June 2000 that:
"Notwithstanding that Ronan is a registered pupil at Our Lady of Lourdes High School, which is within statutory walking distance, you have asked the Board to provide assistance with transport to St Paul's College, Kilrea, on the basis that Ronan has been subjected to bullying in Our Lady of Lourdes. The allegations of bullying have been investigated by the school but not substantiated."
(ii) However, even allowing for (i) above, I do not consider that the assertion by the solicitors for the applicant's parents in their letter of 2 June 2000 that rejection of the school's plan was "irrelevant" was either helpful or constructive especially since paragraph 2 of Mr McAfee's affidavit of 3 November 2000 illustrates the simplicity of the available explanation.
(iii) I do not accept the assertion by Mr McAfee in his affidavit of 3 November 2000 that the letter from the Board of 12 September 2000 was the first occasion upon which any suggestion was raised of an available place at St Joseph's High School, Coleraine. I am satisfied on the basis of the affidavits sworn on behalf of the Board by Margaret Shaw, Chief Educational Welfare Officer, and Joseph Dwyer, Senior Educational Psychologist, that Mr Dwyer made enquiries with both St Joseph's and St Paul's prior to the meeting with Mrs McAfee at her home on 25 August 2000 and that, at that meeting, both the available place at St Joseph's and the possibility of a reimbursement of £395 towards travelling expenses, on welfare grounds, were discussed.
The discretion
Article 52(3) of the 1986 Order (as substituted) provides the Board with a discretion to pay the whole or part of the reasonable travelling expenses of a pupil in accordance with arrangements approved by the Department. The Department's arrangements, as contained in Circular No 1996/41, includes, at paragraph 9, the recognition that exceptional circumstances may exist in which the application of the rule relating to statutory walking distance may not always be appropriate and that it is for the Board to consider any case which is thought to be outside the provisions of the preceding paragraphs. The paragraph provides an exceptional road safety hazard as an example of a circumstance in which the Board might wish to exercise discretion. Under the heading "General" paragraph 11 of the policy provides that the Board should consult the Department in any case where a proposal to assist with transport is not covered by the Circular.
Paragraph 9 of Circular 1996/41 was specifically considered by Mr McDowell, the Board's Transport Officer, who wrote to the solicitors acting on behalf of the applicant's parents on 29 February 2000 stating that the paragraph would apply "… when reviewing safe walking routes where there would be a particular safety hazard for pupils" and confirming that, in his opinion, it would not apply to matters arising from alleged bullying. Paragraph 9 does specify the existence of an exceptional road safety hazard as an example in which the Board might wish to exercise discretion. In such circumstances, presumably, the Board could exercise its discretion to assist with transportation to a school within three miles of the pupils home. However, Mr McDowell appears to have taken the view that this is the only type of situation in which the Board could exercise its discretion and, in my opinion, this would appear to be inconsistent with the heading "Exceptional Circumstances" and the reference to "any case" neither of which seem to place any such limitation on the range of cases which the Board might consider in relation to its discretion.
It is rather more difficult to discern the approach of Mr Harper to the statutory powers and policy. In his initial letter of 26 June 2000 he appeared to confirm the original decision not to grant transport assistance but to indicate that, subsequent to confirmation by the Board's Educational Welfare Service that Ronan had not returned to school, he was prepared to recommend to the Department the issue of an annual travel pass in the interest of seeing Ronan reintegrated into a school environment as soon as possible. However, at paragraph 11 of his affidavit of 25 October 2000 Mr Harper confirmed that he did not consider that the exceptional circumstances referred to in paragraph 9 of the Department's policy contemplated the provision of transport to another suitable school nor did he consider that it would permit subjective assessment of suitability of a school. Therefore, Mr Harper concurred with Mr McDowell's decision that the "circumstances did not entitle the Board to exercise its discretion to provide travel assistance under paragraph 9 of the Circular 1996/41". While it is far from happily drafted, it seems to me that the "exceptional circumstances" with which paragraph 9 is intended to deal are circumstances under which a Board might provide transport assistance within the statutory walking distance. Hence the reference to the application of the rule relating to statutory walking distance not always being "appropriate" and the example of "an exceptional road safety hazard". If that is the correct interpretation of paragraph 9 then Mr McDowell's conclusion that it did not apply was probably also correct although it should not be thought that I accept that, even on such an interpretation, exceptional circumstances should be restricted to some form of road hazard. However, it seems clear that Mr McDowell did not then proceed to consider whether this might be a case for the Board's general discretion under Article 52(3) of the 1986 Order.
The application for transport assistance was subsequently considered by Mr Harper, the Board's Chief Administrative Officer, who indicated that he was prepared to recommend, subject to Department approval, the provision of an annual travel pass although the basis upon which he proposed to take such action is not entirely clear from his letter of 26 June 2000.
It would appear from Mr Harper's subsequent affidavit, sworn on 25 October 2000, that he formed the view that the plaintiff's application could not be considered under either paragraph 3 or paragraph 9 of Circular No 1996/41 and that his decision to recommend a bus pass represented an exercise of the Board's discretion under Article 52(3) and paragraph 11 of the Circular. This recommendation was not accepted by the Department and the grounds for rejection may be ascertained from the letter of 24 August 2000 from Mr McCullough, Schools Administration Branch, and the affidavit of Dr Mark Brown sworn on 24 October 2000.
Mr McCullough's letter confirmed the view of the Department that the policy relating to school transport contained in Circular No 1996/41 did not apply to the case of the applicant although the letter made no reference either to Article 52(3) or to paragraph 11 of the Circular. The letter is incidentally revealing as to the attitude of the Department with regard to Boards making "judgements" about perceived or potential harassment of pupils inside or outside schools or classifying schools as having "behavioural problems". It seems to me that the general public might be forgiven for believing that one of the more important functions of any Education & Library Board would be to make precisely just such judgements in appropriate circumstances.
Paragraphs 5 and 6 of his affidavit indicate that Dr Brown agreed that the application did not fall within the arrangements set out in Circular 1996/41 and, after referring to paragraphs 3.3 and 3.5, he expressed concern about an interpretation of the Circular which would "uncouple the criterion of unsuitability from one related to the management arrangements of the school to one dependent on how appropriate the school is to a pupil or his parent". In such circumstances Dr Brown explained that the Department had sought to achieve the objective of providing assistance in relation to transportation costs on the basis of a payment made on "discretionary welfare grounds".
It seems to me that the Department has probably been misled by focussing exclusively upon its own policy Circular. Neither Mr McCullough nor Dr Brown referred to the fact that paragraph 11 of the Circular clearly contemplates circumstances in which a Board may consult the Department about assistance with transport not covered by the Circular or to the discretionary power of the Board under Article 52(3). I respectfully acknowledge the reminder by Hutton J, as he then was, in Re Brownlee's application that it is the relevant statute, namely, the 1986 Order, which should govern the decisions of a Board in relation to the provision of school transport and not circulars from the Department of Education. In the circumstances, it seems to me that the Department mis-apprehended the law in holding that the application for transport assistance could not come within the provisions of Article 52 of the 1986 Order.
However, that is not the end of the matter since judicial review is a discretionary remedy. In this case, as I have indicated earlier in this judgment, the Board did offer £395 in respect of travel assistance measured as a cost to the Board of a sessional bus ticket from Ballymoney to Coleraine. I am satisfied that this offer was conveyed to Mrs McAfee on 25 August 2000 and that this represented a reasonable sum bearing in mind the price of a taxi fare to Kilrea and the fact that, at all material times, a place was available for the applicant at St Joseph's College in Coleraine. I also take into account the fact that the duty imposed on the Board by Article 52 is a duty only to provide transport to the school nearest to the applicant's home and that Article 52(3) contains a general discretion enabling a Board to provide the whole or any part of the reasonable travelling expenses of a pupil. Paragraphs 7, 8, 9 and 10 of Dr Brown's affidavit of 24 October 2000 confirm that, having reviewed the matter, the Department would have made the same offer under its transport policy. If such a proposition had been put forward by the Board and approved by the Department under Article 52(3) I do not believe that it could have been impugned as unreasonable and, accordingly, I do not propose to exercise my discretion to grant judicial review.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND