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Cite as: [2005] ScotSC 71
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Smiles v. City Of Edinburgh Council [2005] ScotSC 71 (18 October 2005)
Case Reference No: B332/05
JUDGMENT OF SHERIFF NIGEL MURRAY PATON MORRISON, QC
in the cause
ANNE SMILES
Pursuer
against
CITY OF EDINBURGH COUNCIL
Defender
18 October 2005
Introduction
On 17 August 2005 I heard proof in this summary application. The only evidence was led by the defender, that being from one witness, namely, the head of neighbourhood management in the Children and Families Department (formerly head of pupil support in the education department). I gave an ex tempore judgment on that date after the hearing on evidence. I was subsequently asked to give written reasons for my decision as I was informed that there were other cases raising the same point.
The case turned on the meaning of the phrase "an additional class" in section 28A(3)(a)(vi) of the Education (Scotland) Act 1980. Head (vi) was inserted in section 28A(3)(a) by section 44(4) of the Standards in Scotland's Schools Etc Act 2000. Section 28A was inserted by section 1(1) of the Education (Scotland) Act 1981. Under Section 28A(1) of the 1980 Act where a placing request is made to place a child in a specified school, the education authority has, subject, inter alia, to subsection (3), a duty to place that child in that specified school. Subsection (3) of section 28A is in these terms:-
(3) The duty imposed by subsection (1) above does not apply -
(a) if placing the child in the specified school would -
"(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; ...."
In this case the pursuer had applied for her daughter to be admitted to the primary 1 class at Hermitage Park Primary School. The pursuer and her daughter live outwith the catchment area for that school. The district school for the child is St Mary's, Leith, Roman Catholic Primary School. The report of Her Majesty's Inspectorate for Schools (number 6/2/1 of the defender's productions) indicated that this district school was a very good school and there were no aspects of that school marked less than fair. The application to place the child in the Hermitage Park school was refused by the defender. The child has been offered a place at St Mary's.
The evidence
The reasons for the refusal were these. They were spoken to in evidence by Mr Glen, formerly Head of Pupil Support in the defender's Education Department and now Head of Neighbourhood Management in the Children and Families Department. As could be seen from the defender's production number 6/2/2, the number of classes over the last five years in the city's primary schools was declining because the number of primary pupils was falling by about 600 a year. The council received funding from central government according to the number of pupils. The fall of 600 pupils was equivalent to 30 to 40 teachers. The council was, therefore, funded for 30 to 40 fewer teachers than previously. As a result the council had to close some schools and reduce the number of classes in others in line with the funding that was available. A decision had been taken in May 2005 by the council (see defenders' production number 6/2/9 of process) to adopt the policy of reducing the number of classes at Hermitage Park school, in the school year beginning of August 2006 from 14 to 13 classes. Legislation restricts the number of pupils in a class to 30 pupils, but in the case of composite classes, the maximum number of pupils is 25. In order to achieve 13 classes instead of 14 there could not be two primary 1 and two primary 2 classes as at present. There would have to be one primary 1 class, one primary 2 class and one composite class of primary 1 and primary 2 pupils. The younger primary 2 pupils would go into the composite class with older primary 1 pupils. To comply with the legislation there would be 30 in each of the single primary 1 and primary 2 classes and 25 in the composite class. The number to be admitted this year, in August 2005, would have to be restricted to 43 in order, next year, to achieve one primary 1 class, one primary 2 class and one composite class of 25 consisting of 13 of the youngest primary 2's and 12 of the youngest primary 1's. The result of the reduction in funding meant that the defender had to budget accordingly; and it was irresponsible to take funding from elsewhere in the defenders' expenditure to maintain current class sizes.
The funding was planned on a three year basis with indicative budgets in between. The defender's staff were currently looking at the budget for 2006/07, and in terms of that budget they were planning for 13 classes with 13 class teachers. The council had approved the intake of 43 pupils this year and 42 next year. If an additional place were given to a child now other parents with children above the pursuer's child on the waiting list would be aggrieved. There is an order of priority and, in fairness, this has to be followed.
The first priority was to give places to all pupils living in the district. The second priority was to children living out of the district, but where a sibling was in the school. The third priority was for children living out of the district who had no sibling in the school but lived in Edinburgh. The fourth priority was given to children living out of the district and out of Edinburgh who had no sibling in the school. The pursuer's child was in the third category. There were other children on the waiting list for a place at Hermitage Park ahead of the pursuer's daughter.
The arguments
For the pursuer, the argument of Mr Nisbet was that if there were four classes this year and there had to be four classes next year because the pursuer's child had been taken in this year the local authority was not, in terms of the statutory provision, creating "an additional class". If that argument was wrong, Mr Nisbet argued that to avoid creating another class next year the local authority could take one less pupil next year to overcome the problem of the addition of the pursuer's child to the school.
Mr McFarlane, for the defender, argued that next year there would be 13 classes and 13 teachers, that there would only be funding for that number set by the government and that if there were an additional pupil the defender would have to create another class and that would be an additional class. If the pursuer's argument were correct, the defender might never be able to achieve a reduction in the number of classes because it could always be said that if there were four classes this year then four classes next year would not involve an additional class. In relation to restricting the intake next year further by letting the pursuer's child in today, that would prevent a meritorious candidate being admitted next year. It was wrong and irresponsible to say let this child in this year and some other child can just lose out next year.
My decision
In applying the statutory provision it seems to me that one is directed first to assume that the pupil numbers remain constant and that one then looks at the position at the commencement of a future stage of the child's education. In considering Mr Nisbet's argument that one is not creating an additional class, it depends at which point one is looking at the issue. If one looks at the issue today, it might well be argued that if there are four classes this year and there have to be four classes next year, that that is not creating an additional class. But the statute directs one to look at the position at the future stage, i.e. in this case, at the position next year. The position next year would be, if the pupil numbers were the same next year as this year (which would include the pursuer's child), then there would have to be another class next year. That other class would be an additional class to the number of classes for next year, ie, a future stage. The local authority's adopted policy is for 13 classes next year including oneP1, oneP2 and oneP1 and P2 composite classes. That is because the defender has to comply with the statutory restriction on class numbers. If the pursuer's child were allowed into Hermitage Park this year, then the defender would be obliged next year to create another or additional class. If there are to be 13 classes next year and then there has to be another class formed that is an additional class to the number of classes approved for next year. At Hermitage Park there are 14 classes this year and there will be 13 next year and in that year there will be one primary class of 30 pupils, one primary class 2 of 30 pupils and one composite primary 1 and primary 2 class of 25 pupils. In order to achieve that there will be an intake this year of 43 pupils. If the pursuer's child were admitted this year there would be 44 pupils next year, one more than allowed for. To accommodate that, the classes would have to be increased from 13 to 14 as there would be more than 30 pupils in primary 2 or more than 25 in the composite class. The ground in section 28A(3)(a)(vi) is, accordingly, met because the defender would have to create an additional class.
Mr Nisbet then argued that the problem could be overcome by admitting the pursuer's child this year and further restricting the intake of pupils next year. In this way, creating an additional class is avoided. This argument, of course, is not based on the interpretation of the statutory provision but is a way of getting round it. It ignores the requirement to assume that the number of pupils is constant. It requires making a special case for one pupil, which is not based on any special circumstances relating to that child, without regard to the effect on other children who are further up the waiting list of placing requests than the pursuer's child. Furthermore, I cannot assume that it would have no effect on placing requests next year. If the child were to be accepted this year, then, in fairness, others above her on the waiting list would have to be admitted and the intake next year would have to be even further reduced, as Mr Glen said. It is not simply a question of admitting the pursuer's child this year and reducing the number by one next year. Mr Nisbet, in effect, simply wants the approved policy that has been fixed by the defender, including the policy for dealing with placing requests, to be set aside and to create an unfairness this year and next in order to admit the pursuer's child. The policy itself is not criticised. I cannot set it aside in any event. I have no powers to do that. To do so would be to interfere with the policy and procedures set by the elected authority which includes procedures which attempt to achieve fairness to all. One cannot obviate the need for an additional class by creating a potential or material unfairness to others.
The next question is whether, having decided that the ground in head (vi) of section 28A(3)(a) exists, it is also, in all the circumstances, appropriate to confirm the defender's decision under section 28F(5)(b) of the 1980 Act. My answer to that question is that it is appropriate. The decision involves no unfairness to any other pupil, it avoids unfairness which could otherwise be created; there exists a place for the pursuer's child in a good school in her own district; and there are no special circumstances pertaining to the child's case which distinguish her from any other pupil.
Conclusion
Accordingly, I sustained the defender's pleas and repelled the pursuer's pleas. I refused the pursuer's first crave. As agreed I found no expenses due to or by either party.