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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 137
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P1512/08
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OPINION OF LORD WOOLMAN
in the Petition of
EAST
LOTHIAN COUNCIL
Pursuers
against
For Judicial Review
of an Interlocutor dated 22 August 2008
of the Sheriff at Haddington under section 28F of the Education (Scotland)
Act 1980
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Sir Crispin Agnew, Q.C; Allan McDougall & Co SSC
Defenders: Mrs Scott, Q.C.; Campbell Smith WS
12 September
2008
The Statutory Framework
[1] This case concerns a
"placing request" made by the respondents, Mr. and Mrs D, under the
Education (Scotland)
Act 1980. Such requests are made under
Part II of the Act, which is headed "Rights and Duties of Parents and Functions of Education
Authorities in relation to Individual Pupils".
Section 28 sets out 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."
[2] Teeth is given to that
principle by section 28A, which states
"(1) Where the parent of a
qualifying child makes a written request to an education authority to place his
child in the school specified in the request, being a school ... under their management, it
shall be the duty of the authority, subject to subsections (2) (3) (3A) and (3F) below, to
place the child accordingly."
The subsections in question list a number of different
conditions which entitle an authority to refuse a placing request.
[3] Senior
counsel for the respondents said that when the provision was first introduced
it was dubbed "the parents' charter", because it gave them an enforceable
choice of school. An authority was bound
to place a child in accordance with the parents' wishes, unless the exceptions
applied.
[4] Parents
have a right of appeal against a decision refusing a placing request, first to
an appeal committee and then to the sheriff.
In the case of an appeal to the sheriff, section 28F (5) provides:
"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 their decision and shall, where he so refuses,
require the authority to give effect to the placing request to which the appeal
relates.
The judgment of the sheriff on an appeal is final (s28F (9))."
The Employment of an Additional Teacher
[5] One
of the exceptions which entitles an authority to refuse a placing request
occurs where to place the child in a specified school would make it necessary
for the authority to take an additional teacher into employment (s28A (3) (a)
(1)).
[6] The
Education (Lower Primary Class Sizes) (Scotland)
Regulations 1999 (SI 1999 No. 1080) were made under the 1980 Act and are
relevant in this regard. They establish
that the maximum size for a primary one class conducted by a single qualified
teacher is 30 pupils. It follows that
when the maximum size is exceeded, an additional teacher must be employed by
the education authority.
[7] However,
the 1999 regulations also provide that a child placed in the class by the
decision of an appeal committee or a sheriff shall not count for the purposes
of determining the maximum size (Regulations 3, 4 and Schedule para. 4). I shall refer to such children as "excepted
pupils".
[8] The
Scottish Executive Education Department issued further guidance to education
authorities about class sizes in April 2007.
Circular no. 1/2007 states that from August 2007, primary 1 classes
should have a maximum of 25 pupils. However,
it also stipulates that the provisions relating to excepted pupils would
continue to apply. That means that they
are not included in counting the class size.
Background Circumstances
[9] The sheriff heard
evidence from seven witnesses over a period of three days. Neither party took issue with his findings
regarding the background circumstances. Accordingly,
with minor modifications, I gratefully adopt those of his findings which are
germane to the argument presented to me.
[10] Mr. and Mrs D are the parents of twin children, A and
J, who are nearly five years old. They
also have a two year old child. The
family live in the catchment area for the A Primary, although the B Primary is
the closest school to their home. There
are sufficient places for the twins in Primary 1 at the A Primary. A small number of children from the pursuers'
street attend the A Primary; a more significant number attend the B Primary.
[11] There are 24 children in the P1 class at the B Primary. The Council had allocated 22 children places
in the class, allowing them to keep 3 as reserved places. Two further children had been placed in the
class as a result of appeal committee decisions made in or about May 2008. A number of parents had made unsuccessful
placing requests for the B Primary P1. The
defenders had established a waiting list with 11 children on it, ranked in
order of geographical proximity to the school, as that had been a common factor
in the placing requests. The twins were
ranked ninth and tenth on the list.
[12] The twins attended the nursery school at the B Primary from
November 2006 to June 2008. Mrs D
regularly walked to and from nursery with them, by a route that was safe,
well-lit and largely traffic-free. This
took her about 20 minutes. She became
involved in the school parents' association and got to know the school staff. The twins enjoyed nursery and, having
initially relied mostly on each other, established friendships. Many of their friends from nursery or home
have places at the B Primary, and Mrs D knows many of the P1 parents. Although Mr. and Mrs D have two
cars in the family, they are keen for their children to be able to walk safely
to and from school.
The Placing Request
[13] In December 2007 Mr. and
Mrs D made a placing request to have the twins attend the B Primary. The authority refused the request and
allocated the twins places in the A Primary.
An appeal by Mr. and Mrs D to the Education Appeal Committee
was refused after a hearing on 28 May
2008.
[14] Mr. and Mrs D then appealed to the Sheriff under
section 28F. The authority defended the
decision primarily on the basis that placing the twins in the B Primary would
make it necessary for it to take an additional teacher into employment.
The Factual Issues before the Sheriff
[15] There were three
disputed questions of fact before the sheriff: (a) had the local authority in
fact adopted the terms of Circular 1/2007 as its policy? (b) what would be the
effect on the twins if they were required to move to a new and unfamiliar
school, that is the A Primary? and (c) were the available routes for walking to
and from the family home to the A Primary School suitable?
[16] The sheriff resolved these three issues as follows. He held that the authority had adopted the
Circular as its policy. He was satisfied
that moving the twins to the new school would not have an unduly adverse effect
upon them. Finally, he decided that one
of the routes - while less than ideal - was capable of being made suitable
after appropriate intervention by the authority.
The Sheriff's Decision
[17] On 22 August 2008,
the sheriff held that the authority had failed to establish that placing the
twins in the B Primary "would ... make it necessary for the authority to take
an additional teacher into employment". As
this was the sole ground on which it relied, his decision meant that the
placing request was granted.
[18] The sheriff set out his reasoning in three paragraphs:
"26. There is no doubt that placing A and J in
the P1 class at would bring the total number of children in the class to 26, of
whom 4 would have been placed by virtue of appeal committee or shrieval
decisions. Equally, however, the plain
implication of the Schedule of excepted pupils, which appears in both the 1999
Regulations and the 2007 Circular, is that these 4 pupils would not count towards
class size limits during the 2008-09 school session. On moving into P2 in August 2009, the
applicable class size limit would be 30, as per the 1999 Regulations.
27. The committee report from which I was
prepared to infer that the defenders had adopted as their policy the 25 limit
for P1 was very brief. It did, however,
acknowledge that Scottish Executive guidance (that is, Circular 1/2007) allowed
for the exceptions as set out in the 1999 Regulations. The exceptions must thus form part of the
defenders' policy.
28. Whatever
the defenders might consider ideal or desirable, in terms of their policy it is
thus clear that the defenders would not require to employ an additional teacher
in 2008-09 if A and J were now placed in [the B] Primary. Nor would they need to budget for employing
an additional teacher in future years, since by the time the 4 excepted
children counted towards the class size maximum, that maximum would be 30
rather than 25 and the class would contain only 26 pupils."
Submissions for the Petitioners
[19] Sir Crispin Agnew QC, senior counsel for the
petitioners, invited me to reduce the interlocutor of 22 August 2008 and remit the case back to
the sheriff for reconsideration. He said
that the decision was flawed and therefore susceptible to judicial review.
[20] As a preliminary issue, senior counsel stated that a subsidiary
argument had been presented to the sheriff regarding "reserved places" in terms
of section 28A (3A) of the 1980 Act. Contrary
to what the sheriff had said in his judgment, the petitioners had not abandoned
that argument. However, as he made no
further submissions on the matter, I have not considered it in the course of
this opinion.
[21] The principal submission for the petitioners was that by
disregarding the Scottish Executive policy and guidance, the sheriff had failed
to take into account a material consideration.
He ignored the fact that the authority would require to employ an extra
teacher to comply with the guidance and the policy. In consequence, he had incorrectly construed
the phrase "make it necessary". By
starting with the proposition that his placing of the twins would make them
excepted pupils, the sheriff had overridden the regulations, the policy and the
guidance. Senior counsel said that the sheriff's
approach meant that no class size policy could ever operate, because a sheriff
could always add extra pupils to the class.
That effectively negated the policy.
[22] Senior counsel suggested that the correct approach was to
accept that once the primary one class size exceeded 25 pupils, the authority
was bound to employ an additional teacher, in order to comply with the
guidelines. The sheriff should then have
gone on to consider the second part of the statutory test, that is whether in
all the circumstances, it was appropriate to place the twins in the B Primary
School.
[23] Sir Crispin also pointed out that the sheriff's decision does
not just affect the twins. Under the
provisions of section 28F (6), the authority would be bound to review the
decisions in respect of the other 9 pupils on the waiting list.
[24] He referred to Dundee
City Council Petitioners 1999 Fam LR 13; and Smiles v City of Edinburgh Council 2006 SLT (Sh.
Ct) 6. Sir
Crispin used these cases to vouch the proposition that the sheriff should have
taken account of all of the authority's policies in arriving at his decision. He should have accepted the evidence of Mrs Maureen
Jobson (Acting Head of Education) that an additional teacher would have to be
employed, if the twins' placing request was granted.
Submissions for the Respondents
[25] Mrs Scott QC invited me to refuse the motion for reduction
and to recall the interim suspension of the sheriff's decision. The practical consequence would be that the
twins could start at the B Primary School as soon as possible.
[26] Mrs Scott confirmed that no issue was taken with the
competency of judicial review in this case. She founded on two propositions of law:
1. The sheriff did not
exceed his jurisdiction in deciding as a matter of fact that placing request
for the twins would require an additional teacher to be employed.
2. Esto the case turns on the petitioners' policy, the sheriff was
entitled to find as a fact that they had adopted Circular of 2007/1 and in
consequence the excepted pupils provision applied, so that the twins fell out
of account for the purposes of class size.
As the Sheriff
had not erred in law, there was no basis to interfere with his decision.
[27] Senior counsel said that section 28A of the 1980 Act created a
charter of parental rights. An
authority's primary duty was to place a child in accordance with their parents'
wishes, unless certain exceptions applied.
If the education authority could adopt a policy which would defeat those
rights, that would drive a proverbial coach and four through the charter.
[28] Mrs Scott said that the sheriff was not bound to accept
the evidence of Mrs Jobson. He was
entitled to look behind her evidence and to conclude that it was not necessary
to employ an additional teacher.
[29] Mrs Scott said that the term 'necessary' in section 28A of
the 1980 Act fell to be construed in accordance with the 1999 Regulations. Parliament had carefully attempted to balance
two different interests: (a) the parents' wish to have their child educated at
a school of their choice; and (b) the education authority's aim to keep class
sizes to the agreed minimum.
[30] Inevitably, there had to be a compromise between these two
aspirations. Parliament had recognized
that in some instances, the tension between these two goals would result in
class sizes greater than 30 pupils. In
this case, however, even if the twins were included, the class would not reach
the statutory maximum.
[31] Senior counsel also drew attention to the normal placing
process. All placing requests normally
had to be made prior to 30 April each year. It was only after that date that the appeal
committee or the sheriff could determine whether any appeals against refusal
should be allowed.
[32] Mrs Scott said that neither of the cases referred to by
the petitioners was in point and that they did not assist in the resolution of
this case. The sheriff had to answer one
question - would placing the twins in this school require the employment of an additional
teacher? He had correctly answered that
question in the negative. It was not
necessary for the authority to employ an additional teacher under the
regulations, because the class size did not exceed 30. Nor was it necessary in terms of the policy,
because the twins would not be included in assessing the class size at 25. In other words, the sheriff had reached a
decision that he was entitled to take on the facts and his decision was final.
Decision
[33] I wish to begin by emphasising the narrowness of the legal
issues in this case. The sheriff was
being asked to consider a decision in which the authority relied on only one
ground to justify its refusal of the placing request. Parliament has declared that decision to be
final. A judicial review can only
scrutinize the sheriff's decision-making process in accordance with accepted
principles. It is not an appeal.
[34] In my view, the critical question that the sheriff required to
address was whether the placing of the twins in the B Primary School would
"make it necessary for the authority to take an additional teacher into
employment." (s28A (3)). In particular,
he required to construe the term "necessary".
[35] In my opinion that is just what he did. Paragraph 28 of this judgment makes it plain
that he directly addressed the issue of whether or not an additional teacher
was required if the twins were placed in the B Primary.
[36] On the question of what were relevant and irrelevant
considerations for the sheriff to take into account in arriving at his
construction, I drew parties' attention to the judgment of Dyson LJ in Pabari v Secretary of State [2005] 1 All ER 287.
"'Necessary' is a somewhat
protean word whose meaning depends on the context in which it is used. In some contexts, it means 'indispensable' or 'essential'. (para. 53)
...
In some contexts, the word 'necessary'
has a weaker meaning. But it will
usually bear the connotation of some degree of compulsion or exigency. The context will determine where on the
spectrum of compulsion or exigency the word 'necessary' is placed (para. 55)."
[37] Each party, perhaps unsurprisingly, contended that these
remarks assisted their own case. Sir
Crispin suggested that it was necessary for the authority to employ an
additional teacher, having regard to the policy guidelines and the evidence of Mrs Jobson. By contrast, Mrs Scott said that the
context in this case meant the statutory context.
[38] In my view, the sheriff was entitled to approach the matter on
the basis that the term "necessary" did require to be interpreted in accordance
with the 1999 regulations. He did not
misdirect himself, nor did he take into account an irrelevant consideration. He was entitled to hold that it was not
necessary for the authority to employ and additional teacher if the twins were
placed at the school of their choice.
[39] Parliament has expressly determined that class sizes are not
affected by pupils placed by sheriffs or appeal committees. It follows that it is not a legal requirement
for an authority to appoint an additional teacher. The legislation expressly allows for that
contingency.
[40] The regulations themselves are not engaged here, because the
class size would not reach the statutory maximum even with the twins. Further, as the excepted
pupils' provisions were translated
into the authority's policy adopted in accordance with Circular 2007/1, the sheriff
was also entitled to hold that it was not bound to appoint an additional
teacher in order to comply with that policy.
[41] I shall therefore refuse the prayer of the petition and recall
the interim suspension granted on 24 August
2008.
