Scottish Court of Session Decisions

Aberdeen City Council for Judicial Review [2002] ScotCS 120 (26th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD DRUMMOND YOUNG in the Petition of ABERDEEN CITY COUNCIL Petitioners; for Judicial Review of an interlocutor dated 24th December 2001 of the Sheriff at Aberdeen under section 28F of the Education (Scotland) Act 1980       ________________

 

 

Petitioners: Miss J. Williamson; Robson McLean

Interested Party (Mrs C. Wakoma): D. Kelly; Drummond Miller, WS

26 April 2002

1. The petitioners are the local education authority for the City of Aberdeen. As such they exercise the functions of an education authority specified in Parts I and II of the Education (Scotland) Act 1980, as amended. The present application for judicial review relates to the duties of the petitioners under Part II of the Act, and in order to explain the circumstances of the case it is necessary to set out certain of the provisions of that Part at length.
2. Part II of the 1980 Act deals with the rights and duties of parents and the functions of education authorities in relation to individual pupils. Section 28(1) provides that, in the exercise and performance of the powers and duties under the Act, an education authority shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents. Section 28A the Act, originally inserted by the Education (Scotland) Act 1981 but subsequently amended by a number of different Acts, provides as follows:

"(1) Where the parent of a child of school age makes a written request to an education authority to place his child in the school... specified in the request, it shall be the duty of the authority, subject to subsections (2A), (3) and (3) and (3A) below, to place the child accordingly.

Such a request so made is referred to in this Act as a 'placing request' and the school specified in it is referred to in this Act as the 'specified school'.

...

(3) The duty imposed by the subsection (1) above does not apply --

(a) if placing the child in the specified school would --

(i) make it necessary for the authority to take an additional teacher into employment;

(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school;

(iii) be seriously detrimental to the continuity of the child's education;

(iv) be likely to be seriously detrimental to order and discipline in the school; or

(v) be likely to be seriously detrimental to the educational well-being of pupils attending the school;

(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child;

(c) if the education authority have already required the child to discontinue his attendance at the specified school;

(d) if, where the specified school is a special school, the child does not have special educational needs requiring education or special facilities normally provided at that school; or

(e) if the specified school is a single sex school... and the child is not of the sex admitted or taken... to be admitted to the school,

but an education authority may place a child in the specified school notwithstanding paragraphs (a) to (e) above.

(3A) The duty imposed by subsection (1) above does not apply where the acceptance of the placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school; but nothing in this subsection shall prevent an education authority from placing a child in the specified school.

(3C) In subsection (3A) above, 'reserved places' means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as may be prescribed by regulations) as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1 August to which the placing request relates;....

(3D) In subsections (3A) and (3C) above, 'catchment area' means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of this Act".

3. Section 28A thus specifies a number of grounds on which an education authority may refuse a placing request. All but one of these are found in subsection (3). An additional ground, however, was introduced by section 33 of the Education (Scotland) Act 1996, and this is found separately in subsection (3A). There is no obvious reason for the use of a separate subsection to cover this ground; the basic structure of the two subsections is identical, as they both begin with the words "The duty imposed by subsection (1) above does not apply where...". The most likely explanation is that the ground of refusal in subsection (3A) is qualified by a specific condition relating to the place of residence of the child, and is also dependent on the definitions of "reserved places" and "catchment area" that are found in subsections (3C) and (3D). In addition, subsection (3A) was originally qualified by a further subsection, subsection (3B), in cases where there was an equivalent school nearby; that subsection was, however, deleted by section 44(6) of the Standards in Scotland's Schools etc. Act 2000. The relative complexity of these provisions may explain why a separate subsection was chosen, rather than a mere addition to subsection (3). The important point, however, is that the fundamental structure of subsections (3) and (3A) is identical. That seems to indicate that the ground of refusal in subsection (3A) is to be equiparated with the grounds in subsection (3).
4. Section 28C of the Act provides that a parent who has made a placing request may refer a decision of the education authority refusing his request to an appeal committee set up under section 28D of the Act. The function of an appeal committee is set out in section 28E(1), which is in the following terms:

"An appeal committee may, on a reference under section 28C of this Act, confirm the education authority's decision if they are satisfied --

(a) that one or more of the grounds of refusal specified in section 28A(3) of this Act exists or exist; and

(b) that, in all the circumstances, it is appropriate to do so

but otherwise shall refuse to confirm the authority's decision and shall, where they so refuse, require the education authority to place the child to whom the reference relates in the specified school".

5. If the reference to the appeal committee is unsuccessful, section 28F provides that the parent has a further right of appeal to the sheriff. The sheriff's function is set out in section 28F(5), which is in the following terms:

"The sheriff may on an appeal under this section confirm the education authority's decision if he is satisfied --

(a) that one or more of the grounds of refusal specified in section 28A(3) of this Act exists or exist; and

(b) that, in all the circumstances, it is appropriate to do so

but shall otherwise refuse to confirm the decision and shall, where he so refuses, require the authority to give effect to the placing request to which the appeal relates".

6. The wording of the two subsections is very similar. Certain features call for comment. In the first place, the education authority's decision may only be confirmed if certain conditions are satisfied; otherwise the appeal committee or sheriff must refuse to confirm the decision and must give effect to the placing request. In the second place, the first of the conditions that must be satisfied if the decision is to be confirmed is that at least one of the grounds of refusal specified in section 28A(3) exists. Nothing is said about the condition in section 28A(3A). If sections 28E(1) and 28F(5) are read literally, this feature gives rise to a serious difficulty in the event that an education authority refuses a placing request solely on the ground in section 28A(3A), and not on any of the grounds specified in section 28A(3). If that happens, and the parent appeals to an appeal committee or to the sheriff, it is most unlikely that the appeal committee or the sheriff could be satisfied that any of the grounds of refusal specified in section 28A(3) existed; before they could do so, they would have to find established a ground of refusal that had not been adopted by the education authority. If, however, the appeal committee or sheriff found the ground of refusal relied on by the education authority, that in section 28A(3A), to be established, that would not suffice for the purpose of either section 28E(1) or section 28F(5) because these make no reference to the ground of refusal contained in section 28A(3A). Thus the appeal committee or sheriff could not be satisfied of the matter specified in paragraph (a) of each subsection, and would be obliged to refuse to confirm the authority's decision.
7. In the present case the facts are somewhat more complex. In January 2001 the father of Millicent Wokoma submitted a placing request to permit her to attend Aberdeen Grammar School. The petitioners divide Aberdeen into three zones for the purpose of allocating children to schools; a child resident in one of the zones will normally go to primary and secondary schools in that zone. Aberdeen Grammar School is one of the secondary schools serving zone 3. Millicent was resident in zone 1, but she attended St. Joseph's, a Catholic primary school in zone 3. After leaving primary school, she would normally have attended one of the secondary schools in zone 1. Her mother was anxious that she should receive Catholic religious instruction, and consequently she would normally have attended Linksfield Academy, which was the school in zone 1 where provision was made for such instruction. Her parents nevertheless wished her to attend Aberdeen Grammar School, the school in zone 3 where such provision was made. They had a number of reasons for doing so. As the evidence developed before the sheriff, it became apparent that the principal reason was that Catholic religious instruction was provided at Aberdeen Grammar School on a group basis. At Linksfield Academy, on the other hand, it was only available on a one-to-one basis, which Mrs Wokoma thought would be less effective. In addition, Millicent had experienced difficulties during her primary education because she was of mixed race, and unfortunately a degree of racism appears to pervade some of the pupils at certain Aberdeen schools. This was not the case at Aberdeen Grammar School, however, which Millicent's older sister had attended. Nor was it the case at St. Machar's Academy, the school which Millicent attended after her request to attend Aberdeen Grammar School was refused; consequently this reason was effectively dropped in the course of the hearing before the sheriff.
8. Millicent was not resident in zone 3, and consequently the placing request made on her behalf fell into a low category. The petitioners decided to refuse it, and they notified Millicent's mother, Mrs Patricia Wokoma, of their decision on 26th April 2001. They had two grounds for doing so. The first ground was that in section 28A(3)(a)(v) of the Education (Scotland) Act 1980 as amended, namely that placing Millicent in Aberdeen Grammar School would be likely to be seriously detrimental to the educational well-being of the pupils there, because the limit of numbers in the school would be breached. The second ground was that in section 28A(3A) (wrongly described in the decision letter as section 28(3A)) of the 1980 Act as amended, namely that acceptance of the placing request would prevent the petitioners from retaining reserved places at Aberdeen Grammar School for children moving into zone 3. The petitioners had decided to reserve four places in the first year intake at Aberdeen Grammar School for pupils who might move into its catchment area. Admitting Millicent would use one of those four reserved places.
9. Mrs Wokoma referred the petitioners' decision to an appeal committee under section 28C of the 1980 Act, but in a decision notified on 16th July 2001 the appeal committee confirmed it. Mrs Wokoma thereafter appealed to the sheriff under section 28F of the Act. On 24th December 2001, the sheriff refused to confirm the petitioners' decision, and required the petitioners to give effect to the placing request. The sheriff issued a lengthy note in support of his decision. It is not necessary to consider the whole of this note. A central feature of the sheriff's reasoning, however, was the significance of the absence in section 28F(5) of any reference to section 28A(3A).
10. In the submissions presented by the solicitors for both the petitioners and Mrs. Wokoma, it was accepted that section 28F(5) should be read as if it contained a reference to section 28A(3A) as well as to section 28A(3). The sheriff indicated (at page 13 of his note) that he was at first attracted by this approach, but that when he came to reflect on the matter he came to the tentative conclusion that it was a position that he could not adopt. He considered that he was faced with a casus omissus rather than an ambiguity to which he could apply the rules of statutory interpretation. Consequently he had to give effect to the statute as it stood. He stated

"I formed the provisional view that, at the point of determining the appeal, if the sole ground of refusal was the ground contained in subsection (3A), the Court could not confirm the decision -- it could only do so on the basis of a ground contained in subsection (3). My tentative conclusion was that, unless I found the section 28A(3)(v) [in fact section 28A(3)(a)(v)] ground to be established, then I could not competently confirm the refusal of this Request".

11. The sheriff heard the parties agents further on the matter, but in the end of the day his final conclusion was the same as his provisional conclusion. Consequently he refused to read any reference to section 28A(3A) into section 28F(5). He concluded his observations on this part of the case as follows (at page 15 of his note):

"The foregoing approach may appear to give rise to an absurd situation and, were I dealing with a matter of interpretation, then I think that I would be entitled to interpret section 28F so as to avoid that absurdity. But given that I am dealing with a casus omissus, I cannot do so".

12. This conclusion hand important consequences for the sheriff's reasoning. It obviously meant that he felt unable to confirm the Council's decision on the basis that the ground of refusal specified in section 28A(3A) was satisfied. That left the Council's other ground of refusal, based on section 28A(3)(a)(v), that placing Millicent in Aberdeen Grammar School would "be likely to be seriously detrimental to the educational well-being of pupils attending the school". The sheriff's reasoning on this ground was expressed as follows (at page 19 of his note):

"My decision on the issue of 'severe detriment' is influenced greatly by the view which I have taken with regard to the grounds upon which I can confirm a refusal of this request. I have, of course, concluded that I can do so only on the basis of the Section 28A(3)[(a)](v) ground of 'serious detriment'. It follows from that, on my analysis of the situation, that I must look at the facts as they are and not as I would assume them to the if I was having regard also to the need to retain reserved places. I must, I think, consider the consequences of admitting a 177^th pupil into a year with a capacity for 180 and not the consequences of admitting a 181^st pupil to that year.... If [I am] looking at the facts as they are, I require to consider the likely consequences of reducing the reserved places from four to three. It is a fact that the [Council] seek to reserve those places. If the school simply sacrifices a reserved place, then there will be no consequences for any pupil already at the school. I do not think that Section 28A(3)[(a)](v) allows me to have any regard to the position of the hapless potential pupil who may thus be excluded for want of a fourth reserved place!"

13. As a result of this reasoning, the sheriff concluded that placing Millicent in Aberdeen Grammar School would not cause serious detriment to pupils who were actually attending the School.
14. The sheriff's decision on the relationship between section 28A(3A) and section 28F(5) is now challenged by the petitioners. They contend in the first place that the sheriff erred in law and acted ultra vires in finding that the decision of an education authority based on section 28A(3A) can be the subject of an appeal to him under section 28F. They argue that the sheriff's statutory jurisdiction only exists if one of the grounds for refusal referred to in section 28A(3) exists. That, it was said, arises because there is no mechanism within section 28F that would enable the sheriff either to confirm or to refuse to confirm a decision taken under section 28A(3A). The petitioners' counsel frankly conceded that this was an unattractive argument, and her main argument assumed that the sheriff had jurisdiction under section 28F to entertain an appeal in respect of a decision taken under section 28A(3A). She contended that the sheriff had erred in law in holding that he could not interpret section 28F(5) as if it contained a reference to section 28A(3A) as well as to section 28A(3). She referred to the principles stated by the House of Lords in Inco Europe Limited v. First Choice Distribution, [2000] 1 WLR 586, in particular in the speech of Lord Nicholls of Birkenhead at 592A-593B, and submitted that it was clear on the proper construction of section 28F(5) that the intention of Parliament was that there should be exactly the same rights of appeal against a decision under section 28A(3A) as exist in respect of a decision under section 28A(3). The structure of the two provisions was identical, and there was no reason for excluding decisions under subsection (3A) from the right of appeal. The present wording of section 28F(5)(a) was the result of an error by the draftsmen which could be corrected very simply by inserting the words "and section 28A(3A)" immediately after the reference to section 28A(3). Exactly the same construction should be applied to the provisions of section 28E(1)(a), dealing with the right of appeal to an appeal committee.
15. Answers to the petition were lodged on behalf of Mrs Wokoma, and she was represented by counsel at the hearing before me. Her counsel referred to the fact that it had been conceded before the sheriff that there was a drafting error in section 28F(5). He asked for leave to withdraw this concession, on the basis that there should be a contradictor to the petitioners' argument. I granted leave to withdraw the concession. In relation to the petitioners' first ground of appeal, counsel for Mrs Wokoma submitted that the right of appeal to an appeal committee in section 28C(1) was quite general in its terms, and was not confined to decisions taken on one or other of the grounds contained in section 28A(3). The same was true of the right of appeal to the sheriff under section 28F(1). Consequently the sheriff's jurisdiction could not be excluded in a case such as the present. In relation to the petitioners' second ground of appeal, counsel for Mrs Wokoma submitted that for the principles stated in Inco Europe Limited v. First Choice Distribution, supra, to apply, any drafting error must be quite clear, and that was not the case in relation to the present provisions. Firstly, section 28A(3A) had been enacted by section 33(4) of the Education (Scotland) Act 1996. In subsection (2) of that section, however, provision was specifically made for the insertion in section 28A(1) of the words ", (3) and (3A)" in place of the words "and (3)". Thus, where it was considered appropriate, Parliament had inserted an express reference to subsection (3A). Secondly, in the Education (Scotland) Act 1996 Parliament had chosen to enact the provisions of subsection (3A) in a distinct subsection. That was significant in itself. Thirdly, the statutory provisions under consideration had been significantly amended by the Scottish Parliament in section 44(4) of the Standards in Scotland's Schools etc. Act 2000. When that was done, no opportunity had been taken to amend section 28F(5), or section 28E(1). Counsel submitted that a distinction existed between subsection (3) and (3A), in that the latter was concerned not with pupils in a class at the start of the school year but pupils who might come into the catchment area in the course of a year. The number of places for the latter category had to be calculated in the manner provided in section 28A(3C). On that basis the education authority ought to come to a specific number for such places. It is possible, therefore, that Parliament had differentiated between the two categories because a simple number was involved in cases within subsection (3A), and that gave much less scope for interference by an appeal committee or the sheriff. If there was a possible intelligible reason for an apparent drafting anomaly, it should not be treated as an absurdity and corrected by the addition of words. Reference was made to IRC v. Pemsel, [1891] AC 531, R. v. Corby Juvenile Court, ex parte M, [1987] 1 WLR 55, and R. v. Oakes, [1959] 2 QB 350.
16. In my opinion the petitioners' first argument is clearly incorrect. The right to refer a decision to an appeal committee contained in section 28C(1) and the corresponding right of appeal to the sheriff contained in section 28F(1) are both expressed in quite general terms. Any refusal of a placing request by an education authority may be the subject of a reference to an appeal committee, and there is no restriction to decisions reached on grounds specified in section 28A(3). Indeed, it is difficult to discover any sensible reason for such a restriction. Exactly the same is true of the right of appeal to the sheriff.
17. The main issue between the parties related to the construction of sections 28E(1) and 28F(5), and in particular the question of whether a reference to grounds of refusal specified in section 28A(3A) can be read into each of those subsections. The relevant legal principles are set out by Lord Nicholls of Birkenhead, in a speech with which the other members of the House of Lords concurred, in Inco Europe Limited v. First Choice Distribution, supra. At pages 592C -593A he stated

"It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation.... He comments...

'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the draftsman or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role'.

This power is confined to clear cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation....

Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Limited v. Schindler, [1977] Ch 1, 18, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation".

18. In the present case, I am of opinion that sections 28E(1) and 28F(5) should be construed in such a way as to include a reference to section 28A(3A) in each case. In my view sections 28E(1) and 28F(5) both contain an obvious drafting error. Subsections (3) and (3A) of section 28A are identical in their fundamental structure, and are both clearly intended to set out grounds on which an education authority can refuse a placing request. The fact that the possible grounds of refusal are divided between two subsections can readily be explained by the complexity of the definitions and qualifications that apply to the ground in subsection (3A); these would make it very difficult from a practical point of view to include the latter ground as part of subsection (3). Section 28C(1) is clearly intended to confer a general right on a parent to refer the refusal of a placing request to appeal committee. Likewise, section 28F(1) is clearly intended to confer a general right on a parent to appeal to the sheriff against the decision of an appeal committee. In relation to these rights of a reference and appeal, there is in my opinion no sensible reason for distinguishing the ground in subsection (3A) from the grounds in subsection (3).
19. Counsel for Mrs Wokoma suggested that a distinction could be drawn on the basis that the exercise performed by the education authority in refusing a request under subsection (3A) was founded on the calculation of a simple figure for reserved places under subsection (3C), and that an exercise of latter nature was much less susceptible to review by the appeal committee or the sheriff. In my opinion that is not a valid distinction. In the first place, even a simple calculation exercise may be the subject of review or appeal, to ensure that it is carried out correctly. In the second place, and more importantly, the determination of the appropriate number of reserved places may involve significant issues of judgment, and cannot in my view be categorised as a matter of mere computation. That is recognised by subsection (3C), which states that "reserved places" means "such number of places... as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school" in a specified period.
20. I conclude, accordingly, that in determining the scope of a parent's right to have a refusal of a placing request reviewed there is no valid reason for distinguishing a refusal on one or more of the grounds in subsection (3) from a refusal on the ground in subsection (3A). That in itself would be a sufficient reason for construing sections 28E(1) and 28F(5) as if they contained a reference to refusals under subsection (3A) as well as to refusals under subsection (3). The matter does not end there, however. The peculiar structure of sections 28E(1) and 28F(5) requires that the appeal committee or sheriff should refuse to confirm the placing request unless satisfied that one or more grounds of refusal exist. Consequently, if those two subsections are not construed in the foregoing manner, a referral or appeal against a refusal based on the ground contained in subsection (3A) must inevitably succeed, even if the appeal committee or sheriff is satisfied that that ground was perfectly valid. The only exception would be the highly exceptional case where the appeal committee or sheriff formed the view that one of the grounds in subsection (3) existed, even though such ground had not been founded on by the education authority. That possibility is so unlikely that it can be discounted. Consequently, an absurd position would result, in that the appeal committee or sheriff could not uphold a decision based on a ground that they considered to be entirely valid. In the present case, the sheriff himself accepted that the result reached by him was absurd, but felt that, because of the rules of statutory construction, he was unable to do anything about it. He was not, however, referred to Inco Europe Limited v. First Choice Distribution, supra; had he been, I suspect that his conclusion might have been different.
21. In my opinion the sheriff's conclusion was not correct. I consider that the requirements set out in Inco Europe Limited v. First Choice Distribution, supra, are plainly satisfied. In that case Lord Nicholls of Birkenhead set out three matters of which the court must be "abundantly sure" if it is to add or omit or substitute words in a statutory provision. The first is the intended purpose of the statutory provision in question. In the present case, the relevant statutory provisions are sections 28E(1) and 28F(5). These are clearly intended to set out the powers that an appeal committee or the sheriff, as the case may be, has to confirm or refuse to confirm an education authority's decision. In my opinion they are equally clearly intended to empower the appeal committee or sheriff to confirm an authority's decision if satisfied that any of the statutory grounds of refusal contained in section 28A exists. For this purpose, I consider that no distinction was intended between the grounds in subsection (3) and the ground in subsection (3A). The second matter referred to by Lord Nicholls of Birkenhead is that by inadvertence the draftsman and Parliament failed to give effect to the intended purpose of the provision. In the present case, I am of opinion that such failure is manifest. The third matter referred to is the substance of the provision Parliament would have made. In the present case, the drafting error can be corrected very easily indeed, by the insertion in sections 28E(1)(a) and 28F(5)(a) of the words "and (3A)" after the reference to "section 28A(3)". That does no violence to the substance of the two provisions; nor does it bring about any fundamental change in their meaning. Nor do the present provisions call for a strict interpretation of the statutory language. It is true, as counsel for Mrs Wokoma pointed out, that exactly the same words were inserted into section 28A(1) by section 33 of the Education (Scotland) Act 1996, but no corresponding provision was made for sections 28E(1) and 28F(5). I do not think that this is of importance, however. The primary purpose of section 33 was to amend section 28A, and thus it is hardly surprising that the draftsman noticed a consequential amendment in that section. In my opinion it is quite clear that the draftsman simply overlooked the fact that there were corresponding amendments to be made to provisions in two other sections, namely sections 28E and 28F.
22. For the foregoing reasons, I have granted the primary remedies sought in the petition, namely reduction of the sheriff's interlocutor of 24th December 2001 and declarator that section 28F of the Education (Scotland) Act 1980 is to be read as containing a reference to section 28A(3A). I should add that I was addressed by counsel for the petitioner on the competency of judicial review in cases such as the present. She referred to the unreported decision of Lord Cameron of Lochbroom in Dundee City Council, 12th February 1998, as authority for the proposition that such a procedure was competent. I am quite satisfied, for the reasons set out in that case, that the present procedure is competent.
23. Counsel for Mrs Wokoma also sought review of one aspect of the sheriff's decision. This related to the petitioners' criteria for determining the priority of placing requests. This matter had been raised before the sheriff on the basis that it had a bearing on the question whether it was appropriate to confirm the education authority's decision; that is a separate matter on which the sheriff must be satisfied in terms of section 28F(5)(b). The petitioners determine the priority of placing requests to attend a school outwith the zone in which a pupil is resident by grouping such requests into four categories. The first category applies to children who moved into a zone after 15th March in a given year. The second relates to children who have a brother or sister already attending the school in question. The third relates to children who, by reason of their parents' working arrangements, are cared for outwith school hours by a person who lives within the zone of the school in question. The fourth applies to children who have other reasons for attending the school in question. Within the fourth category, priority is determined by the distance between the relevant school and the pupil's home, without regard to any other reasons that might exist for attending the school in question.
24. Counsel submitted that the rule for determining priority within the fourth category involved a failure to take account of a pupil's individual circumstances. It follows that, in applying that rule, the petitioners were fettering their judgment and disabling themselves in advance from considering individual circumstances. That invalidated the policy in question, rendering it ultra vires. Reference was made to Ayr Harbour Trustees v Oswald, 1883, 10 R. (HL) 85, Padfield v. Ministry of Agriculture, [1968] AC 997, British Oxygen Company v. Board of Trade, [1971] AC 610 and Re Findlay, [1985] AC 318. The sheriff, however, had concluded (at pages 21-22 of his opinion) that there was nothing in the petitioners' method of privatisation that rendered it ultra vires or otherwise invalid. Counsel sought to challenge this aspect of his decision. The remedy sought was stated as follows in the second plea in law for Mrs Wokoma: "The Petitioners' policy of refusing to give consideration to the reason for placing requests being unreasonable, reduction of the refusal of the sheriff to confirm the decision of the Petitioners should be refused".
25. In my opinion that remedy is misconceived. If the sheriff has erred in a material part of his decision, the appropriate course of action is for this court is to reduce the decision and thus in effect to remit the matter to the sheriff for reconsideration. In the course of argument I pointed this out to counsel for Mrs Wokoma. He then tendered a minute of amendment, which sought a declarator that the petitioners' policy of refusing to give consideration to reasons for a school placing request was unlawful. His motion to amend was opposed by counsel for the petitioners, who pointed out that a direct challenge to the petitioners' policy was an important matter on which she would require to take instructions.
26. I refused the motion to amend. I considered that it involved a direct challenge to the petitioners' policy, made in a manner that differed from Mrs Wokoma's original second plea in law. It came at a very late stage in the hearing, and it related to a matter on which counsel for the petitioners would clearly require to take detailed instructions. For these reasons I thought it unfair to the petitioners to allow the amendment. In any event, the review of the petitioners' policy was essentially a function of the sheriff. I considered that, on the arguments advanced before me, I could not conclude that the sheriff had erred in law in holding that the policy was valid. In the first place, counsel's attack on the policy related to the petitioners' rule for determining priority within the fourth, residual, category of placing requests. That approach, however, seems too narrow. In my opinion of the petitioners' policy for determining the priority of placing requests would require to be considered as a whole in order to determine whether there was an unlawful fettering of discretion. That would include the first three categories, which involve further rules that grant priority to certain categories of placing requests. In the second place, the validity of the policy for determining the priority of placing requests arose in the context of section 28F(5)(b), which requires that, if the sheriff is to confirm an education authority's decision, he must be satisfied that in all the circumstances it is appropriate to do so. That clearly involves consideration of all the policies that may have a bearing on the decision. That is important in the present case because the primary reason for the placing request related to the availability of Catholic religious education, a matter on which the petitioners had a detailed policy. The sheriff considered this matter (at page 22 of his opinion), and concluded that the policy was adequate to meet Millicent's needs. If that is so, it invalidates the reason for making the placing request. That in itself might render it unnecessary for the petitioners to consider the request further. All of these matters, however, are essentially for consideration by the sheriff in performing his function under section 28F(5). In the present case, I am unable to conclude that the sheriff erred in law in his approach to the petitioners' policies.