Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 008
P1352/11	OPINION OF LORD GLENNIE in the Petition of U T‑H Petitioner; for Judicial Review of a decision of Sheriff N M P Morrison on 17 August 2011 in respect of a placing request concerning A under s.28F of the Education (Scotland) Act 1980 ­­­­­­­­­­­­­­­­­________________

Petitioner: Janys Scott QC; Wright, Johnston & Mackenzie LLP

Respondent: Clancy QC; Legal & Administrative Services, City of Edinburgh Council

19 January 2012

Introduction

[1] The petitioner is the parent of A, who was born in September 2006 and is now five years old. The respondents are the City of Edinburgh Council. They are the relevant education authority.

[2] In December 2010 the petitioner made a written request to the respondents in terms of s.28A(1) of the Education (Scotland) Act 1980 as amended ("the 1980 Act") to place her child in a particular primary school. Such a request is known as a "placing request". The respondents refused her request on 21 April 2011. The petitioner referred the refusal of her request to the respondents' appeal committee under s.28C of the 1980 Act. On 15 June the appeal committee confirmed the respondents' decision. The petitioner appealed to the sheriff under s.28F of the 1980 Act. He refused her appeal. The petitioner now seeks judicial review of the sheriff's refusal of her appeal on the ground that he erred in law and/or exceeded his jurisdiction.

[3] At issue in this case is the proper interpretation of s.28A(3)(a)(i) and 28F(5) of the 1980 Act read in conjunction with regulation 4 of and para.4 of the Schedule to the Education (Lower Primary Class Sizes) (Scotland) Regulations 1999 (SI 1999/1080) as amended by The Education (Lower Primary Class Sizes) (Scotland) Amendment Regulations 2010 (SSI 2010/326) ("the Class Size Regulations"). I was told by Mr Clancy QC, who appeared for the respondents, that the issues raised in this case are by no means unique and that the point is therefore considered by them to be one of some importance.

The statutory framework

The general principle

[4] S.28(1) of the 1980 Act provides that, in the exercise and performance of their powers and duties under the Act, education authorities

"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"

The Education (Scotland) Act 1981 ("the 1981 Act") introduced a right for parents to select schools for their children and override the decisions of the education authority in relation to placing children in schools. Effect is given to this by ss.28A‑28F of the 1980 Act, which were inserted into it by the 1981 Act.

A placing request

[5] As is made clear in s.28(1), the default position is that the education authority will place a child in the school specified in a placing request. This is confirmed by s.28A(1), which provides that, subject to certain exceptions, where the parent makes a placing request to an education authority to place his child in a specified school under their management (other than a nursery school or a nursery class in a school), "it shall be the duty of the authority ... to place the child accordingly". The circumstances in which this duty does not apply are set out in sub-sections (2), (3), (3A) and (3F) of s.28A. I need refer for present purposes only to sub-sections (3) and (3A), which provide as follows:

"(3) The duty imposed by 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;

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

(vi) assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child's primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at that school; or

(vii) though neither of the tests set out in sub-paragraphs (i) and (ii) above is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers.

(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 the education or special facilities normally provided at that school; or

(e) if the specified school is a single sex school (within the meaning given to that expression by section 26 of the Sex Discrimination Act 1975) and the child is not of the sex admitted or taken (under that section) 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 a 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."

Para.(i) of sub-section (3)(a) refers to the possibility that compliance with a placing request will make it necessary for the authority to take on an additional teacher. One reason for this is that compliance with the request may take the numbers in the class above the maximum class sizes laid down in the Class Size Regulations. Those class size limits are currently a maximum of 25 pupils for classes at Primary 1 level, and a maximum of 30 pupils for classes at Primary 2 and beyond. Accordingly, the duty to place a child in accordance with a placing request does not apply if it would cause those maximum class size limits to be breached. This, as I have said, is one reason why compliance with a placing request may make it necessary to take on an additional teacher. There may however be other reasons, as Ms Scott QC was at pains to emphasise, such as the inability of that number of persons to fit into a particular classroom or practical set.

The parent's right of appeal

[6] Where an education authority refuses a placing request, it is required to give written reasons for its decision and must inform the parent of his right to refer the matter to an appeal committee. This is a reference to the right of referral contained in s.28C of the 1980 Act. I need not set out that section. The process is described as one of referral, not appeal, though it is not clear what, if anything, is the difference. From an adverse decision of the appeal committee, a parent may appeal to the sheriff under s.28F of the 1980 Act. The provisions of that section, so far as material, are as follows:

"(1) A parent who has made a reference under section 28C of this Act may appeal to the sheriff having jurisdiction where the specified school is situated against the decision of an appeal committee on that reference.

...

(5) 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. ..."

That section goes on to deal with the consequences for other previously refused placing requests, if the decision of the sheriff is inconsistent with the ground on which they were refused.

[7] As in the case of a referral to the appeal committee, the onus rests on the education authority. Unless the sheriff is satisfied that one or more of the grounds of refusal specified in s.28A(3) exists or exist, then he must allow the parent's appeal and refuse to confirm the education authority's decision. Even if he is satisfied that one or more of those grounds of refusal exists or exist, then he must still allow the parent's appeal unless he is satisfied that, in all the circumstances, it is appropriate to confirm the education authority's decision.

[8] It is a matter of agreement that an appeal to the sheriff under s.28F is a complete re-hearing of the case: see Coates v Lothian Regional Council 1999 FamLR 8 at para.8-09. Indeed, the education authority may rely on different grounds for refusal than those on which it originally made its decision: Dundee City Council, Petitioners 1999 FamLR 13 at para.13-16. The sheriff must consider whether one or more of the statutory grounds for refusing a placing request exists or exist at the time he determines the appeal; and, if so, whether to confirm the decision of the education authority. I was told that, as a matter of practice, because the onus is on them, the education authority leads at the proof before the sheriff.

[9] It should be noted that by s.28F(9), the judgment of the sheriff on an appeal under this section "shall be final". It is clear from the authorities, however, that judicial review of the sheriff's decision is competent: Dundee City Council, Petitioners 1999 FamLR 13, Aberdeen City Council v Wokoma 2002 SC 352, East Lothian Council, Petitioner 2008 SLT 921.

"Excepted pupils"

[10] The class size limits laid down by the Class Size Regulations inevitably give rise to some potential anomalies and difficulties. In a range of circumstances of different types, pupils may have to be added to the class notwithstanding that in terms of the Class Size Regulations that class is full. Such matters are addressed in the Class Size Regulations themselves. The solution adopted in the regulations was the creation of a category of "excepted pupil" who is not to count in the calculation of class sizes for the purpose of the class size limits set by the regulations. Thus, in the 1999 Regulations, as amended, regulation 3 sets out the maximum class sizes for primary classes. Regulation 3(3) provides that if a lower primary class (i.e. a class containing pupils in the first, second or third yearly stage of primary education) contains an "excepted pupil", as defined in the regulations, the limits on class size apply as if that "excepted pupil" were not included in the class. Regulation 4 gives the definition of "excepted pupil". It provides that, for the purposes of regulation 3, a child to whom any of paragraphs 2 to 7 of the Schedule applies, is (except in certain situations with which I am not here concerned) an excepted pupil in relation to a lower primary class at a school. Paragraphs 2-7 of the Schedule read as follows:

"2. This paragraph applies at any time during the first school year to a child or young person for whom it has been established that a co-ordinated plan is required or for whom a plan has been prepared (and not discontinued) within the meaning of the Education (Additional Support for Learning) Scotland Act 2004 who is placed, outside a normal placing round, in the school nominated in his Record of Needs.

3. This paragraph applies at any time during the first school year to a child placed in the school outside a normal placing round who -

(a) was initially refused a place at the school owing to a failure properly to implement the education authority's placing arrangements applicable to the school;

(b) was subsequently offered a place there by virtue of a decision made by the education authority that there had been such a failure in relation to the child.

4. This paragraph applies at any time during the first school year to a child placed in the school outside a normal placing round by virtue of a decision of an appeal committee under section 28E of the 1980 Act or of the sheriff under section 28F of that Act.

5. - (1) This paragraph applies at any time during the first school year to a child placed in the school outside a normal placing round -

(a) in relation to whom that school is the only school (apart from any school at which he has been refused a place or from which he has been permanently excluded) which-

(i) is within a reasonable distance from his home, and

(ii) provides suitable education; and

(b) who did not, at the relevant date, ordinarily reside at a place which was within a reasonable distance from that school. ...

6. This paragraph applies to a child -

(a) who is a pupil at a special school, and

(b) who, by arrangement with another school which is not a special school, receives part of his education at the other school,

at any time when he is in a lower primary class at the other school.

7. - (1) In this paragraph, "designated pupil" means a pupil with additional support needs within the meaning of the Education (Additional Support for Learning) Scotland Act 2004 who -

(a) is a pupil at a school which is not a special school; and

(b) is normally educated in a unit which-

(i) forms part of that school, and

(ii) is specially organised to provide education for pupils with additional support needs within the meaning of the Education (Additional Support for Learning) Scotland Act 2004.

(2) This paragraph applies to a child who is a designated pupil at any time when he is in a lower primary class which does not form part of the unit referred to in sub-paragraph (1)(b).

(3) Where this paragraph applies to a child, regulation 4(1) shall have effect in relation to that child as if after "in another lower primary class at that school" there were inserted "(other than a class which comprises or forms part of a unit referred to in paragraph 7(1)(b) of the Schedule)".

Paragraph 8 makes it clear that paras.3-5 do not apply to a child for whom it has been established that a co-ordinated support plan is required or has been prepared and not discontinued within the meaning of the Education (Additional Support for Learning) Scotland Act 2004. I should also note that in regulation 1, which lays down rules for interpretation, it is provided that, for the purposes of the regulations, a child shall be treated as having been placed in a school "outside a normal placing round" (an expression used in paras.2, 3, 4 and 5 of the Schedule) where the decision to place him in the school was taken after 30th April immediately preceding the start of his first school year.

[11] As can be seen, the circumstances in which it is necessary to regard a pupil as an "excepted pupil" are varied. Thus, paras.2, 6 and 7 deal (under reference to different situations) with the case of a pupil with particular needs, a circumstance which is likely to give rise to logistical difficulties unless, where it is necessary, he can be placed within a class which already has up to the maximum number of pupils according to the regulations. Para.5 deals with the case where the particular school is the only reasonably possible school within which to place a pupil who arrives in the relevant catchment area after 30 April immediately preceding the start of the school year. And paras.3 and 4 deal with cases where, in the first school year, a child was wrongly refused a place at the school specified in the placing request but the education authority has acknowledged its mistake or, where the child was refused a place at the specified school but that refusal has been overturned by the appeal committee or by the sheriff. In these latter cases, the difficulties may arise if, after the initial refusal but before the decision is reversed, whether by the education authority or on referral or appeal, more pupils are placed by the education authority in the specified school, which then becomes full in terms of the Class Size Regulations; with the result that s.28A(3)(a)(i) of the 1980 Act might come into play and negate the effects of a successful appeal. That problem is avoided if the pupil in question is made an "excepted pupil", who does not count for the purpose of the Class Size Regulations.

[12] In this case we are concerned only with para.4 of the Schedule, the case where, during the first school year, a child is placed (outside a normal placing round) in the school specified in the placing request by virtue of a decision of an appeal committee or of the sheriff.

The facts in the present case

[13] The respondents, as education authority, refused the placing request on the ground that placing the child in the specified school would make it necessary for the authority to take an additional teacher into employment: s.28A(1)(a)(i). They also relied on s.28A(3)(a)(v): that placing the child there would be likely to be seriously detrimental to the educational well-being of pupils attending the school.

[14] As at the date of the hearing before the sheriff, there were 27 pupils in the Primary 1 class to which A would have been admitted. They comprised:

(a) 24 pupils placed by the respondents in accordance with their own placing arrangements based on a "catchment area";

(b) 2 pupils placed by virtue of a decision of an appeal committee under s.28E of the 1980 Act;

(c) One pupil placed by virtue of a decision of the sheriff on appeal under s.28F of the 1980 Act; and

(d) One reserved place (see s.28A(3A)).

Arguments on the s.28A(3)(a)(i) point

[15] Ms Scott QC, for the petitioner, put her argument succinctly. Whatever may have been the position before the education authority at the time of its decision, it was the position at the time of the appeal hearing before the sheriff that was relevant. The number in the class may not have altered between those two times, but the status of the petitioner (or, more precisely, her child, A) had changed. At the time of the decision by the education authority, A would have counted towards the numbers in the class had she been placed there in accordance with the placement request. That would have put the numbers in the class above the maximum allowed by the Class Size Regulations. But by the time the matter came before the sheriff, the position was different. If he allowed the appeal and A was placed in the class as a result, A would be an "excepted pupil" in terms of para.4 of the Schedule, and would not count for the purpose of the Class Size Regulations. There was therefore no basis on which the sheriff could find that s.28A(3)(a)(i) applied. That section did not apply where, as an excepted pupil, A would not count towards the numbers in the class. Ms Scott relied upon the Opinion of Lord Woolman in East Lothian Council, Petitioner 2008 SLT 921.

[16] Mr Clancy QC, for the respondents, put his arguments equally succinctly. Although the appeal to the sheriff was a re-hearing, and the sheriff was required to decide on the facts as they were at the date of his hearing of the appeal, a construction such as that advanced by the petitioner, which meant that every appeal against a refusal based on s.28A(3)(a)(i) must ex hypothesi succeed, was absurd. A purposive approach to construing the Act and the regulation should be adopted. The intent behind para.4 of the schedule was to prevent an otherwise good appeal against a refusal on one of the grounds in s.28A(3) being rendered ineffective by the fact that, by the date of the successful appeal, the class had filled up. It could not have been intended to have the effect of wholly emasculating s.28A(3)(a)(i) as a ground of refusal. In any case, the language of s.28F(5)(a) was in the present tense, not the future. The sheriff could confirm the education authority's refusal if he was satisfied that one or more of the grounds of refusal "exists or exist". He was not directed to look to see what the position would be in the future as a result of his decision. The decision in East Lothian Council, Petitioner was distinguishable; but, if it was not capable of being distinguished, it was wrong.

[17] Ms Scott replied to the purposive argument advanced by Mr Clancy by relying on the literal meaning of para.4 of the Schedule. That paragraph applied without qualification to a child placed by virtue of a decision of an appeal committee or of the sheriff. There was no room for any restrictive or purposive construction. The words were clear. It was not open to the court to limit, change or disregard that meaning on the ground that the result of the legislation as drafted would be anomalous or absurd: see Stock v Frank Jones (Tipton) Limited [1978] 1 WLR 231. There could be no serious suggestion of a drafting error, as in Inco Europe v First Choice Distribution [2000] 1 WLR 586. Indeed, the most recent amendments to the Class Size Regulations were passed after the decision in East Lothian Council, Petitioner. The implication was that the Scottish Parliament had approved of and adopted that decision: Bennion, Statutory Interpretation, Section 235, Denman v Essex Area Health Authority [1984] QB 735, Otter v Norman [1989] AC 129 and Phillips v Mobil Oil Co Ltd [1989] 1 WLR 888.

Decision on the s.28A(3)(a)(i) point

[18] Despite Ms Scott's able submissions, I am satisfied that Mr Clancy's argument is sound.

[19] The hearing before the sheriff, despite being a re-hearing, remains an appeal. The question is, in effect, whether the education authority was entitled to refuse to place the child in accordance with the placing request. True it is that the sheriff considers all the facts up to the date of the hearing before him. True it is, as well, that the education authority can justify its refusal under reference to other grounds of refusal in s.28A. What is in issue on the appeal, however, is whether or not the education authority's decision should be confirmed. The focus is on the education authority's decision, and the question is whether, in light of all the evidence up to and including the appeal hearing, that decision should be confirmed. In Dundee City Council, Petitioners at para.13-16, Lord Cameron of Lochbroom described the appeal to the sheriff as "not so much an appeal as a review by the sheriff of the earlier decisions", a description which is, in my view, apt.

[20] Where the education authority has based its refusal on the fact that, if it were to accede to the placing request, it would need to take on an additional teacher (s.28A(3)(a)(i)), it would surely be strange if, on a review of that decision, the sheriff was obliged (on the same facts as to the number of pupils in the class) to answer that same question in a different way and allow the appeal, simply because the effect of his decision to allow the appeal would be to make the child invisible for class size purposes. The purpose of designating certain children as "excepted pupils" in regulation 4 and the Schedule is to enable the education authority to deal with particular circumstances by placing the child in a class notwithstanding that the maximum class size under the regulations for that class has been reached. That introduces much needed flexibility. But it was surely not intended that, by a side door, one of the paragraphs in the Schedule should create a ground of appeal where none existed before - which would be the effect of the petitioner's argument - and prevent the authority from ever relying on the ground of refusal set out in s.28A(3)(a)(i) where the introduction of another pupil would result in the class becoming too big. Such a construction would simply encourage appeals in cases where the placing request was properly refused on that ground, which appeals would be bound to succeed, with the result that class sizes would rise above the maximum level laid down by the Scottish Parliament in the Class Size Regulations, for no obvious or explicable reason. Whilst the petitioner's construction does not necessarily lead to an infinitely elastic class size - there are other grounds of refusal on which the respondents can rely in the appropriate case, such as the impact on the size of classroom needed and the need in that context for an additional teacher, the necessity to extend the accommodation, and the imposition of a maximum capacity for the school - it would remove the ability of the local authority to attempt directly to comply with the Class Size Regulations.

[21] The proper construction of the provision can be arrived at, in my opinion, by looking first at the provisions of s.28A of the 1980 Act. S.28A(3) sets out the main circumstances where the duty to place a child in accordance with a placing request does not apply. The first ground of refusal is where placing the child in that school would make it necessary for the authority to employ an additional teacher. If the authority considers that an additional teacher will have to be employed as a result of taking that child, it may (not must) refuse the placing request. On an appeal under s.28F, the sheriff has to ask himself whether (in such a case) that ground of refusal exists. In other words, he has to ask himself whether, if the education authority were to take that child into the school, at Primary 1 level, it would have to employ an additional teacher. That involves him considering, on the facts presented in evidence before him, matters such as the numbers already in the class, and any reserved spaces kept by the education authority. He must decide, on the evidence before him, whether the addition of another child would mean that the maximum class size limits laid down in the regulations would be breached. He may have to consider other matters, such as whether the classroom is too small for more than a certain number of pupils, so that the class would have to be split and another teacher taken on for that reason, but that question does not arise in the case before me. But I stress that he must decide those questions on the evidence before him to determine whether, as matters then stand, that ground of refusal exists. On that basis, the addition of A to the class would take the numbers above the maximum limit of 25. The "excepted pupil" provisions in the Schedule to the Class Size Regulations do not come into play at this stage in relation to A. The regulations apply to an excepted pupil who (already) is in a lower primary class; such a pupil does not count for the purposes of regulation 3. The paragraphs of the Schedule, including para.4, are also expressed in the past tense - para.4 refers to a child who has been "placed" in a school by virtue of a decision of an appeal committee or the sheriff. They cannot, in my view, affect the question of whether the child should be placed there, when the very ground of objection under s.28A(3)(a)(i) is that, when he is added to the numbers, the class will exceed the limits for class size prescribed in the regulations.

[22] The whole argument, perhaps inevitably, is circular. The answer to it, in my opinion, lies in recognising the consequences of the petitioner's construction. With those consequences in mind, I am satisfied that the "excepted pupil" category in para.4 of the Schedule to the regulations is designed only to prevent an appeal which is successful on its merits being frustrated by the fact that by the time it is decided the class is full. It is not intended as a side door through which all parents whose placing request has been refused because of the Class Size Regulations, can pass, obtaining a place for their child by the simple and cast-iron guaranteed expedient of referring the case to the appeal committee or appealing to the sheriff.

[23] I am conscious that this decision appears to be contrary to the decision of Lord Woolman in East Lothian Council, Petitioner. The sheriff considered that this case was distinguishable. Mr Clancy sought to suggest that it was distinguishable, essentially on the ground that the argument for the authority had been directed to a somewhat different point. I accept, as the Lord Ordinary says at para.[33], that the role of the court was only to consider whether the sheriff had erred in a way which was judicially reviewable. But he clearly went further than this and approved an argument to the like effect as that of Ms Scott in the present case. It is not clear that the arguments presented for the authority were focused in the same way as those of Mr Clancy. To that extent Mr Clancy has a point. Be that as it may, although I do not consider that the case can be distinguished, I find myself in disagreement with the decision and reasoning in that case. The reasoning is expressed very briefly, in paras. [34] and [37]-[39]. The argument turned on the word "necessary". The Lord Ordinary held that the sheriff "was entitled to hold that it was not necessary for the authority to employ an additional teacher if the twins were placed at the school of their choice." The reason for that was that class sizes were not affected by pupils placed by sheriffs or appeal committees. On that ground the authority's argument was rejected. But the full difficulties in the construction advanced by the petitioner in this case do not appear to have been urged before him. At any rate he does not appear to have considered them. To my mind they are powerful arguments against the petitioner's construction here and, when combined with an analysis of s.28F(5), are decisive. I therefore do not propose to follow the decision in East Lothian Council, Petitioner.

[24] In light of my reasoning on this point, Ms Scott's argument about the power of a court to limit, change or disregard the clear wording of a statutory instrument on the ground that to do so would create anomalies or absurdities does not arise, and I do not therefore propose to deal with it. Nor, for the same reasons, do I propose to deal with the "tacit legislation" argument referred to in Bennion. I would only say, in relation to this argument, that it was far from clear that at the Committee stage the particular issues with which I am here concerned had been identified.

The alternative argument: s.28A(3)(a)(v)

[25] The sheriff also was satisfied that the circumstances set out in s.28A(3)(a)(v) - that placing the child there would be likely to be seriously detrimental to the educational well-being of pupils attending the school - existed. Ms Scott complains that he did not give any or sufficient reasons for that decision: Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345.

[26] In view of my decision on the other point, this issue is academic. I had some sympathy for Ms Scott's complaint. The reasons do not give a clear indication of the reasons for his decision. Thus, in para.27 of his judgment, the sheriff sets out the evidence of Miss P that "there was a likelihood of serious detriment because it would be necessary to review the staff ratio". He accepts, expressly, that that was her evidence. Impliedly, I suppose, he accepts that evidence. But the important question would relate to the outcome of that review - only then could one say whether there was a likelihood of serious detriment. This is not address in the judgment. The sheriff does not say what he considered to be the basis for a finding that there was a likelihood of serious detriment to the well-being of pupils attending the school. Had this point been critical, I would have remitted the matter to him to provide further reasons, before continuing and deciding this judicial review petition. But it is not.

Decision

[27] For the reasons set out above in relation to s.28A(3)(a)(i), I shall simply pronounce an interlocutor refusing the prayer of the petition.