Scottish Sheriff Court Decisions

 

 

SHERIFFDOM OF LOTHIAN & BORDERS AT EDINBURGH   Case Number:B1319/11
	Judgment by   Sheriff F R Crowe   In the cause MLM   Appellant against   CITY OF EDINBURGH COUNCIL Respondents     ­­­­­­­­­­­­­­­­­________________

 

Act Miss C Fraser, Russel +Aitken, Edinburgh

Alt C. Livingstone, Brodies LLP

 

 

EDINBURGH (10^th August 2011) the sheriff having resumed consideration of the cause, sustains the plea-in-law for the Appellant; repels the plea-in-law for the Respondents; refuses to confirm the decision of the Respondents dated 21 April 2011 and makes an order requiring the Respondents to give effect to the placing request dated 18 January 2011 made by the Appellant in respect of her son S that he be admitted to Primary School P, Edinburgh to attend the P1 class due to commence on 17^th August 2011; finds the Respondents liable to the Appellant for the expenses of the application and hearings; allows accounts to be given in and remits same, when lodged to the auditor to tax and report.

 

 

 

 

Introduction

[1] Yesterday I heard evidence in a proof in this summary application which involved an appeal against the refusal of a placing request made under the Education (Scotland) Act 1980 as amended. Although only two witnesses were adduced a considerable amount of evidence was heard and after hearing some submissions from parties I adjourned at 7 pm in order that the case could be concluded today. I understood that the Respondents intended finalising places in Edinburgh primary schools on Friday 12 August 2011 before the commencement of the new school session on Wednesday 17 August. The Appellant was also anxious to hear my decision as either way it would involve taking a number of decisions in relation to her family.

 

The Facts

[2] The agreed facts were that the Appellant is separated from her husband and lives with her 6 children in Edinburgh. The family used to live close to primary school P and the 4 oldest children have attended at that school. Some years ago the Appellant and her husband moved to a larger house to accommodate their growing family which is situated about 20 minutes walk from primary school P, outwith that school's catchment area but close to primary school C. The couple separated about 2 years ago and the Appellant is going through the throes of divorce proceedings and attempting to sell the family house, which property has been on the market for the past year.

 

[3] The Appellant's oldest son has successfully completed his schooling at primary school P and is about to start at a senior school outwith the catchment area in another part of the city. The younger brothers are about to begin the new school year in P2, P4 and P6 at primary school P. The older of the boys started in P1 at that school when the family lived within the catchment area. The younger boys gained places at primary school P when they reached school age after the Appellant made successful placing requests in preference to the children going to the local primary school.

 

[4] For the forthcoming school session the law has significantly altered in relation to the provision of primary school places by virtue of an amendment to The Education (Lower Primary Class Sizes) (Scotland) Regulations 1999 S I 1080 (S.86), namely the similarly named Amendment Regulations 2010 S I 326 which reduces the maximum class size from 30 to 25 pupils.

 

[5] Following the enactment of the Education (Scotland) Act 1980 and the introduction of the "Parents' Charter" parents had a right to chose a school for their child subject to allocation regimes determined by the education authority. In Edinburgh parents are given a guidance note prepared by the Respondents entitled "Placing in Schools". This document explains most of the policies and practices used by the Respondents to allocate school places and seek to accommodate non-catchment placing requests from parents wishing to exercise a choice over their children's schooling.

 

[6] The Appellant submitted timeously a request in January 2011 to the Respondents to enrol her youngest son at Primary School P for the forthcoming session in P1 where 3 of her older sons are educated. The Appellant explained on the form that "it would be physically impossible" for her to take her sons to 2 different primary schools and a high school each morning. The youngest son was said to be "extremely shy and introverted and he would benefit from being near his brothers at school.

 

[7] In terms of its procedures the Committee on Pupil/Student Support met in March 2011 to consider the applications received for prospective P1 pupils at Primary School P. At that stage 26 pupils resident in the catchment area had been registered. Two of those had sought places elsewhere which were unlikely to be granted. There were no places available to non-catchment pupils, on the basis of a proposed intake of one class of 25 pupils. It was hoped to reserve a place for any incoming catchment pupils there might be. It was resolved to refuse all non-catchment area pupils as it would:-

(a) make it necessary to employ an additional teacher in terms of section 28A(3)(a)(i) of the Education (Scotland) Act 1980 as amended, and

(b) be likely to be seriously detrimental to the educational wellbeing of pupils attending the school in terms of section 28A(3)(a)(v) of the 1980 Act.

 

[8] Alternative school places would be offered to the unsuccessful pupils and a waiting list would be formed in priority order:-

(a) Siblings
(b) All other pupils resident in Edinburgh on the basis of distance from home to school

(c) Pupils not resident in Edinburgh on the basis of distance from home to school.

A letter to that effect was sent by the Respondents to the Appellant on 21 April giving details of the appeal procedure and indicating that her son was 9^th on primary school P's non-catchment waiting list.

 

[9] An appeal was duly marked and the Respondent's Placing in School Appeal Committee met in June 2011 and considered written material from the Appellant and Director of Children and Families and submissions from Mrs Prophet from the Respondents and the Appellant herself. The Committee issued its decision shortly afterwards refusing the request on the "additional teacher necessary" and "likely to be seriously detrimental" grounds referred to in para [7] above-no case specific reasons were given in the Committee minute produced.

 

[10] The Appellant appealed to this Court by way of summary application on 12 July and a hearing took place on 25 July when an evidential hearing was fixed for 9 August 2011. At the conclusion of evidence submissions were heard and continued until today when I gave an ex tempore judgment and indicated I would forward my written reasons to parties today as at least one of such case remains outstanding in this court and further procedure in regard to other refused requests will require to take place.

 

Evidence on behalf of the Respondents

 

[11] Mrs Prophet gave evidence on behalf of the Respondents. It was agreed that since the nature of the proceedings was a re-hearing of the circumstances this evidence should be heard first. In addition to the matters referred to above which were not contentious the following matters are pertinent to the issue

 

[12] Mrs Prophet is a qualified secondary school teacher with 24 years experience in the field of education. She was head teacher of a large Edinburgh Secondary School before taking up her present duties as Head of Quality. She and a number of staff manage the allocation of school places and primary school P is one of the schools that she represents the Respondents in at appeals.

 

[13] In the last 10 years successive Scottish Governments have sought to reduce primary school class sizes to improve the school experience for children. Policy guidance issued in 2007 had been to reduce class sizes to 25 but following court cases in 2008 [East Lothian Council Petitioners [2008] CSOH 137 and D v East Lothian Council 2008 G.W.D. 30-458] it was made clear a 30 pupil class size was still the law.

 

[14] The present round of allocating primary school places had been challenging to manage as the 2010 Regulations reduced the limit to 25, which was a key element in the single outcome agreement reached between the Scottish Government and local authorities. In addition the birth rate which had reduced for many years had begun to rise again in the mid 2000s and a 1.7% increase in new pupils seeking P1 places had been recorded. The Respondent's education department would have to work within a tighter budget, a reduction in excess of £1m per annum. 4 primary schools had closed in Edinburgh in the last year due to falling numbers within their catchment areas. Experience had shown notwithstanding the above that Edinburgh had the highest number of placement requests in Scotland and due to the movement of people throughout the city and work patterns of parents; children frequently moved school and there were fluctuations in numbers. Furthermore following research published in 2006 the "Curriculum for Excellence" had altered the early years period of a child's education to cover initially the first two years in nursery which would blend into a more play-orientated P1 before children's learning and regimes became more formalised in P2-4. The effect of this change had been as planned to reduce the number of school age children who were deferred from starting primary school for a year. All of these factors placed a greater strain on the system particularly on the present round of school placements.

 

[15] Primary school P had capacity for 10 classes. The rooms were of good size and could accommodate classes in excess of 30 pupils. The school however was a single stream school with a proposed roll for the forthcoming session of 178 pupils which included 25 children in P1 and 25 in P2. There was no scope for making up consolidated classes in the school. Such classes are limited to 25 pupils in recognition of the extra demands upon the teacher to meet the needs of a wider spread of learning needs.

 

[16] Primary School C was a newer, much larger school with space for 14 classes but presently operating 13 classes 3 of which would be of 25 each for P1, 2 classes in P2 and 3 and composite classes in P4/5 and P6/7. The projected roll is 335 pupils.

 

[17] Because of general cuts all schools in the Respondent's area were to be run as efficiently as possible with the right number of teachers and staff. Mrs. Prophet doubted there were any spare primary school teachers available within the Department and thought it unlikely any Edinburgh primary school had not sought to combine classes where the total numbers of adjacent classes would not exceed 25. She thought it unlikely there were any secondary school teachers who could be transferred to primary school duties. Most teachers qualified in either primary or secondary school work. While there were moves afoot to make certain teachers more flexible to cover the transition pupils have from primary to secondary school, union agreements currently precluded any enforced transfers from secondary to primary school.

 

[18] As at 8 August 2011 the number of pupils residing in the primary school catchment area intending to start in P1 on 15 August was 24. Two further pupils had been granted "excepted places" based on exceptional circumstances. In addition a reserve place was being kept until 12 August in case a child arrived in the catchment area. Normally with these numbers the Respondents would seek to limit places to 24 and if this was reached by this stage the reserve place would be offered to the first child on the waiting list. Since the total numbers for the class exceeded 25 the reserve place would not be offered to a child on the waiting list. The Appellant's child was at number 7 on the waiting list.

 

[19] Based on her experience and knowledge of the process Mrs Prophet thought the Appellant's son stood a good chance of being offered a place by next year for P2 where the class limit would be 30. It often happened that at the last minute some children did not take up their places, perhaps having moved elsewhere or deferred for a year. Invariably some children left the area during term time and the waiting list was kept by the Head Teacher and places offered in order as vacancies occurred. In some cases however once a child had settled at their alternative school there was no wish to change to the initially preferred school.

 

[20] The waiting list for primary school P was produced and it ranked the placement request children in a group firstly where the children had a sibling or siblings already attending the school. Thereafter children who lived elsewhere in Edinburgh were ranked. There had been a total of 19 children outstanding but the 2 accepted place children reduced the list to 17. Mrs Prophet indicated that the children with siblings were ranked on the on the distance they lived from the school. The nearest child had a distance figure of "1064.581" and the Appellant's child was 7^th on the list with a figure of "2738.789". Mrs Prophet was unable to explain what these figures meant. She understood distances were regularly measured by officials to determine the shortest safest route. The first figure might represent this distance in kilometres to three decimal places but she could not say what the remaining scores represented.

 

[21] The Respondent's guidance warned parents that a child's place at a school or adjacent nursery would not be taken into account. Parents often made arrangements for nursery schooling close to their place of work whereas primary and secondary school places were primarily allocated on residence in the catchment area. When the Appellant's 2^nd youngest son was granted a placement request in 2010 the Respondents warned the same decision might not be made for any future siblings. Mrs. Prophet had never known a parent to refuse such an offer in light of this warning however.

 

[22] In light of the legislation the Respondents felt obliged to keep to the 25 pupil maximum in P1 wherever possible. In line with other guidance the Respondents sought to achieve at least 20% of placements in classes of 18 or less. Due to the various pressures mentioned at para [14] above the Respondents had to manage an inevitable level of parental disappointment at not securing a place of choice in light of the various other constraints.

 

[23] If the number of pupils in P1 at primary school P remained at the envisaged 26 it was highly likely no additional teacher would be employed as past experience suggested the number of children in a class reduced during the course of the session for one reason or another. If this appeal was granted the Respondents would need to inform the parents of other children in a similar situation on the waiting list and perhaps require to grant them places which would result in the need for an additional teacher not merely for a year until P2 but conceivably each year of primary school which would be a substantial financial commitment of up to £40,000 per annum in pay and conditions.

Evidence of the Appellant

[24] The Appellant explained her family circumstances as a single parent with little or no support. She had been unemployed since being made redundant 18 months ago. She owned a car and could drive the children to school but in the past had often walked the children to school to save money. Her oldest boy had wished to go to a secondary school out of the catchment area as his cousins attended school there. The Appellant supported her son's decision and said she would do what she could to make that happen.

 

[25] She was concerned her youngest son was very shy and apt to withdraw from activities when apprehensive. He was close to his older brother who was going into P2 and the presence of 3 older brothers at primary school P would give him confidence. The child's 5^th birthday was in November and it would not be appropriate to defer him to next year. His nursery school teachers had expressed concern to the Appellant if the boy did not get a place in his chosen school. It was unlikely her son would be offered a suitable nursery place and funding such a place would be unlikely. The Appellant had considered sending her youngest son to a catholic school but realised the one she had in mind was not near her eldest son's school as she thought. She was not interested in a place at the local catholic school and considered her local primary school C much too large and her son would not cope.

 

[26] The father of the children was a gypsy traveller of Scottish origin and the children had been bullied locally but discipline to prevent that was good at primary school P. The Appellant indicated that if she was unsuccessful in her appeal her only alternative was to teach her son privately at home with a view to him securing a place at primary school P as soon as possible and perhaps in P2.

 

[27] Due to the distance to her eldest son's new school the Appellant would drive him to school each day and would then drop the other children off at primary school. This would not be easy but she would have to cope with it and ensure her sons were at their schools on time each day.

 

Submissions

 

[28] Mr Livingstone invited me to accept Mrs. Prophet's evidence as credible and reliable and uphold the Respondents' pleas -in-law confirming that the Respondents were correct to refuse a place to the Appellant's son at primary school P on the basis of the grounds specified in section 28A (3)(a)(i) and (v) (and not (iv) as it appeared originally in his pleadings). He suggested the evidence had not revealed any basis for considering exceptional circumstances in the child's case. The present position was that the after the appeal process the P1 class at primary school P had 24 catchment area pupils + 2 exceptional circumstances children granted places with the possibility of another catchment child joining if one appeared soon.

 

[29] In terms of section 28F of the 1980 Act the court had, in determining the case under subsection (5), to take into account section 28A (3A) as indicated by Lord Drummond Young in Aberdeen City Council v Wokoma 2002 SC 352. Section 28A (3) lists the various grounds on which an education authority may refuse a placing request. Subsection (3A) provides an additional ground for refusal where acceptance of a request would reduce the number of places reserved for children who might move to the catchment area. Despite His Lordship highlighting drafting errors which failed to link the various grounds of refusal nothing had been done in the interim period to tidy up the statute.

 

[30] I was then referred to the case of Dundee City Council, Petitioners 1999 Fam. L. R. 13. at para 13-11. This highlights the ramifications that may result if the sheriff refuses to confirm the educations authority's earlier decision to refuse a placing request. Section 28F (6) of the 1980 Act sets out the procedure which requires to be followed namely:-

"that the authority shall review their decision so to refuse and shall inform the parent of the other child of their decision upon that review and the reasons for it."

Subsection (7) goes on to provide a further appeal to the appeals committee as a result.

In the Dundee City case Lord Cameron of Lochbroom had said of subsection (6):-

"I draw attention to this subsection because it makes plain that Parliament expected the sheriff would make his judgment having regard to all relevant policies determined by the education authority which would be referable to the decision which they were required to take in terms of the 1980 Act. The sheriff did make reference to the fact that he was aware of the terms of the section but states that he was not addressed on its potential consequences were he to grant the appeals although he was advised in evidence that eight applications were refused which fell within a group to which the guidelines accorded a higher priority than that of the group in which Liam and Iain were placed."

 

[31] Mr Livingstone submitted that if the court decided the reasons for refusal had been incorrect then the education authority would require to offer places to all children on the primary school P P1 waiting list which involved a further 8 children outwith the catchment area with older siblings who were pupils at the school and conceivably the remaining 10 on the list who were simply outwith the school catchment area.

 

[32] It was the Respondent's position that Lord Woolman's opinion in East Lothian Council Petitioners (supra) was no longer in point in light of the reduction in class size from 30 to 25 by the 2010 Amendment Regulations.

 

[33] It was submitted that I should accept on the evidence and documents produced that the education authority had complied with the law. The Guidance Note for Placing in Schools set out the policies adopted by the authority and these had been followed correctly. In terms of para [20] in Aberdeen City Council v Wokoma (supra) the court should not be tempted to use the reserve place to add the Appellant's child to the school roll and consider that this would not require to be addressed by employing an additional teacher. Mrs. Prophet's evidence had been that the reserve place would not be used unless a request to place a catchment child materialised by Friday 12 August 2011.

 

[34] I was then referred to Smiles v City of Edinburgh Council 2006 S.L.T. (Sh.Ct.) 6. That case is set against the backdrop of falling school rolls which had reached a much lower level than at present and the consequent reduction in funding for teachers by central government under earlier arrangements. The primary school in question had tackled the issue by reducing class sizes over a 3 year period from 14 to 13. The child in question fell into the third of four priority categories on the waiting list and as the learned sheriff noted at page 7 in summarising the evidence in that case:-

"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."

 

[35] Sheriff Morrison QC in deciding Smiles (supra) heard argument that if an additional pupil was granted a place the school would have to create an additional P1 class. At page 8 of his decision he states:-

"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 lose out next year."

Further on page 8 the learned sheriff states:-

"The solicitor for the pursuer 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, or course, is not based on the interpretation of the statutory provision but it is a way of getting round it....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."

 

[36] Mr. Livingstone highlighted that in Smiles (supra) the appeal had failed,the learned sheriff concluding:-

"[My] 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 I her own district; and there are no special circumstances pertaining to the child's case which distinguish her from any other pupil."

 

[37] Finally I was referred to the decision of Sheriff Horsburgh QC in Mather and Mather v City of Edinburgh Council (unreported) Edinburgh Sheriff Court 27 September 2010. In that case the child in question had reached the top of the waiting list but if the appeal were to be successful then in terms of sections 28F (6) and (7) of the 1980 Act the education authority would require to review four other placing requests previously refused. It was then contented that this would require the school to have provided another classroom at significant expense and admit a further 11 children on the waiting list which would require an additional teacher to be employed at a cost of £40,000 per annum. As a result at page 5 of his judgement the learned sheriff was of the view that to admit up to 15 more pupils would be likely to be seriously detrimental to the educational wellbeing of pupils attending the school in terms of section 28A(3)(a)(v) of the 1980 Act.

 

[38] The further argument in Mathers (supra) was that, "as a P1 classroom, which is restricted to 30 pupils, [as it then was] is the same size as the P3 to P7 classrooms, which can accommodate 33 pupils, slipping S into a P1 class would not cause any problem .I ignore that argument for three reasons. Firstly, that ignores the statutory provisions limiting class sizes. It involves treating S as a special case, distinguishable from the other children in respect of whom placing requests have been made. There are no grounds on which such a distinction can be made. It my view that would not be fair."

 

[39] At page 6 Sheriff Horsburgh listed his reasons for refusing the application:-

Firstly, refusing the application involves no unfairness to Samuel. There are no circumstances special to his case which distinguish him from other children in respect of whom placing requests have been made. The respondents are obliged to deal with such requests for school that are over-subscribed in an even -handed way. The policy they operated in allocating places to children living outwith the catchment area is, I consider, very fair, and in this case operated fairly.

Secondly, there are no exceptional circumstances justifying the making of a distinction in S's case. I do not regard the logistical complications relating to deposit at and collection from schools, a problem faced by many families, to be a matter of sufficient significance to make this a special case. It is merely a matter of parental convenience.

Thirdly, S's having a brother already at the school was given the priority to which it was entitled in terms of the respondent's sensible and fair guidelines. There are no circumstances which justify a higher preference."

 

 

Submissions on behalf of the Appellant

 

[40] Miss Fraser took issue with Mrs. Prophet's evidence as she considered the witness was unable to establish that there were no spare teachers who might be re-deployed at no additional expense. The Management Principles on page 10 of the Placing in Schools Guidance Notes (No. 6/6/11) of process states:-

"When considering an "additional teacher" the Council takes into account the global number of teachers required across the estate and not the historic number of teachers at an individual establishment."

It was clear that in both the terms of this document and the Strategic Management of School Places P1 and S1 that the school estate meant both primary and secondary schools-see para 3.5.

 

[41] It was Miss Fraser's view that the East Lothian Council (supra) case was still relevant to the present issue notwithstanding the reduction in class sizes from 30 to 25 as the "excepted pupil" regime defined in Regulation 4 of the 1999 Regulations still applies. The effect of this was that if the court held the Appellant's son fell into this category he would not be counted in the 25 pupil limit and accordingly the need for an additional teacher would not be triggered.

 

[42] The East Lothian Council case involved twins who were ranked 9^th and 10^th on a waiting list of 11 ranked in order of geographical proximity to the school of choice. They had previously attended the nursery section and had been allocated places at a new school elsewhere. The sheriff decided there were grounds for granting the placing requests as he concluded that the class would total 26, in excess of the policy limit of 25 but in fact only a notional 22 pupils as the 4 pupils allocated places through appeals would not count-in any event the number was some way short of the statutory maximum of 30 which then applied. He did not consider the employment of an additional teacher was "necessary" and that in interpreting section 28A (3) of the 1980 Act consideration required to be given to the 1999 Regulations.

 

[43] In terms of the Pupil/Support Committee Minutes of 17 March 2011 the waiting list had to be formed in order of priority which ranked siblings first. The Appellant had more siblings than any one else on the waiting list for the school. Indeed the only other child with more than one sibling at the school was ranked below the Appellant's son. The Appellant's next oldest child had been in P1 at primary school P last year at the class had utilised two teachers although the projected numbers for the forthcoming session were only 25.

 

[44] Miss Fraser while she accepted Mrs. Prophet had been a credible, helpful and reliable witness she was unable from her own knowledge to be categoric that there were no spare teachers in Edinburgh who could be re-deployed at no extra expense nor could she explain the distance figures which were attributed to the various children on the waiting list that resulted in the Appellant's child being ranked 7^th on that list.

[45] Referring to Mathers (supra) and Smiles (supra) Miss Fraser noted they were weaker cases than the present one. In the former case the child concerned fell into the 5^th and last priority group which had been drawn up by the authority and it appeared there were 15 children who were in a similar position to the applicant's child. In Smiles the child was placed in the 3^rd of four categories and there were other children ahead on that waiting list.

 

[46] I was then referred to an article by Derek Authie at 2002 SLPQ 3 at page 170 entitled "An Oasis: Education, Placing Requests and Religion. At page 175 the author discusses the "serious detriment" ground referred to in section 28A (3)(a)(v) of the 1980 Act and contrasts the whole school or single child approach. In relation to the latter concept at page 176 I was referred to the decision in Kavanagh v Strathclyde Regional Council (unreported) Glasgow Sheriff Court 16 August 1982 where the sheriff was asked to consider not only the effect of the two children's cases he had to deal with but the cases of 32 others whose placing request had been refused. If the sheriff granted places to the two children the authority would have to review the other refusals. The sheriff commented in his decision:-

"In my view this contention is unsound. I can only consider the appeal which is before me. I know nothing of the circumstances of any other appeals. The sub-section referred to only compels the Defenders to review their decision in theses other cases it does not say that they should grant them. It appears to me that it is wrong for me to assume that the Education Authority in making a review of the circumstances of each case would necessarily come to the same decision."

 

[48] Miss Fraser indicated that even if I accepted the Respondent's grounds of refusal I was entitled to consider the child's special circumstances regarding his other siblings at the school, his closeness to his slightly older brother about to enter P2 and the evidence of the Appellant about her youngest son's shyness and need for fraternal support if he was to make a proper start at school. I could exercise my discretion in favour of the Appellant to grant a place.

 

[49] Finally I was referred to "Education law in Scotland" by Janys M. Scott QC paragraphs 16-66 et. seq. Chapter 16 of this book has helpful sections on the "additional teacher" and "serious detriment" grounds and at paragraphs 16-75 and 76 discusses contrasting cases where the sheriffs exercise their discretion in apparently similar ways with different outcomes. At paragraph 16-82 the learned author helpfully summarises the considerations the sheriff should deploy whether considering whether to exercise discretion and decide a case differently to what has been decided previously by the education authority.

 

[50] I was invited to uphold the Appellants plea in law, grant a place at primary school P for her son and award expenses.

 

Reply on behalf of the Respondent

 

[51] I asked Mr Livingstone to consider whether the Pupil/Student Support Committee decision as to ranking of placement requests placed siblings ahead of other considerations whereas the waiting list (No. 6/7/2 of process) seemed to conflate children with siblings into ranking in order of distance from school. I was directed to the Guidance Note at 6/6/7 which in describing the process for parents states:-

"The Committee decides on an order of priority for all placing requests. Thereafter the Committee has often allocated [my emphasis] any remaining places at that time or created a waiting list in the following order, on the basis of the shortest, safest walking distance from home to school"

The document goes on to rank in order of children with siblings already at the school children without such siblings who live in Edinburgh and those outwith Edinburgh who do not have siblings at the school. Mr. Livingstone contended that although the Committee Minutes were sparse on the topic Mrs. Prophet who had represented the authority at that meeting recollected the Committee had resolved to do what was in line with the guidance.

 

[52] As regards the article and book referred to above at paras [46] and [49] above Mr. Livingstone was of the view the older cases supported the single child approach and suggested that Lord Cameron of Lochbroom's approach in Dundee City Council (supra) at para 13-11 should be followed as in reaching my decision I had to give consideration to other cases which might be affected. A further reason could be found in Janys Scott's book at para 16-68 where the learned author considered more recent cases had been presented with greater precision.

 

[52] Mr. Livingstone accepted that section 28F (5) of the 1980 Act involved the court adopting a two stage test. If the sheriff agreed with the grounds of refusal that might be an end to the matter but even where the grounds were confirmed the sheriff had discretion to place the child at the school if it was appropriate to do so in all the circumstances. It was suggested that the bar was a high one which the court had to negotiate if a decision was taken on the particular circumstances of the child.

 

Discussion

 

[53] The introduction of parental choice in school placing under the 1980 Act has understandably been subject to conditions to allow the education authority to plan, organise and control their school estate and ensure educational standards are maintained throughout their area. Over the years since 1980 the Act has been amended on a number of occasions (but not necessarily corrected-c.f. Aberdeen City Council v Wokoma (supra) at para [18] and in recent times the criteria which require to be taken into account appear in certain circumstances to limit choice markedly.

 

[54] After hearing Mrs. Prophet's evidence I can see that it is a continuously challenging job to manage school intakes. Plans must be set up to a year in advance and so far as the 2011/12 session is concerned a variety of features has combined so that in certain areas of Edinburgh the right to choose the primary school for a child is now almost illusory.

 

[55] Since last years intake the working limit for P1 class sizes has been reduced by law by 1/6^th. Changes in the school curriculum have resulted in a reduction in the instance of parents deferring their child's start in P1 by a year. The birth-rate which bottomed out in the mid 2000s has been rising since then and the Respondents have had to deal with a 1.7% increase in applications for places. This is all happening against a backcloth of staffing cuts and savings which require officials to look for increased efficiencies year upon year.

 

[56] In the present case since the deadline for the receipt of placing requests in the spring of 2011, in terms of the Respondents' policies there have been no places available to any children outwith the catchment area for primary school P. As things stand at present this situation is likely to remain for the foreseeable future until for one reason or another 2 children leave the class. Even the reserve place which is customarily offered to the child at the top of the waiting list on the eve of the new session is not available in this way and assuming no new catchment children emerge the reserve place will vanish at the end of this week.

 

[57] It is understandable that the appellant should feel aggrieved at the current situation. She has 5 sons of school age. One has benefited from attending primary school P since P1 and he is now off to start secondary schooling in another part of the city. Both he and his next younger brother were entitled to places at the time as the family house was close to the school. As the family grew in number they moved outwith the catchment area but sons 3 and 4 were able to secure placings to the same school without recourse to any appeal procedure. The Appellant's other boys are about to start P2, P4 and P6 at this school. While the younger of those children was guaranteed a place last April the youngest child has been refused a place and sits 7th on a waiting list of similar children who have an older sibling at the school.

 

[58] As Sheriff Horsburgh QC remarked in Mathers (supra) these proceedings involved the rehearing of all of the circumstances and any new information that there might be. Then in terms of section 28F (5) of the 1980 Act the sheriff may confirm the education authority's earlier decision if satisfied upon various statutory criteria or refuse to confirm the decision and when so doing require the authority to give effect to the placing request.

 

[59] These cases are anxious ones for both parties as the choice of school for a child is seen as an important decision in a young life. The child although too young to understand the full implications may be apprehensive about starting school and ideally would wish to go to a school with friend and family members. Clearly where such requests are refused there is disappointment but as I heard in evidence some children settle quickly into a different environment such that when belatedly a place comes up at the initial school of choice it is not always taken up.

 

Decision

[60] I was favoured by two excellent witnesses, Mrs. Prophet and the Appellant. There were no aspersions cast about the honesty and reliability of either witness. Mrs. Prophet was extremely frank and helpful though inevitable as the sole Council witness she could not answer all of the Appellant's questions. The Appellant was articulate and explained her position clearly. Although she did not have psychologist's reports she spoke of her son's nursery teachers being disappointed by the lack of a place at school with his brothers. The nursery the child had been at is adjacent to the primary school but has now closed as part of the cuts. The Appellant did not consider she met new criteria to secure a further nursery place for a year. She felt her son was able to cope with primary school P as he would have his brothers close to him. The Appellant explained how primary school C although very close to home was too large, noisy and unsuitable for her son to thrive in. If refused a place the Appellant said she would teach her son at home until a place at primary school P became available. Mrs. Prophet helpfully gave us the benefit of her experience and suggested such an opportunity might arise at the start of P2 if the child remained where he was on the waiting list.

 

[61] Having heard the evidence and considered the various submissions I can find little fault with the Respondents' approach to this complicated and at times Kafkaesque set of procedures. The Respondents have used such lead in time to tackle the reduction in place numbers in P1 classes as laid down in the 1999 Regulations as amended last October. The Respondents have sought elsewhere in the school estate to reach an advisory target of 20% classes with no more than 18 pupils to improve the learning experience for young children. I accept that if I reached a certain decision in relation to a child on the waiting list this could have serious implications for the authority in dealing with other children who had been refused and remained on the waiting lest.

 

[62] In light of the decision in Aberdeen City Council v Wokoma (supra) I have considered the terms of section 28A (3A) of the 1980 Act but in this case standing the evidence the circumstances do not apply. Although the Respondents have left a reserve place in light of the decisions of the appeal process at an earlier stage the class is at capacity i.e. 24 catchment children and 2 exceptional circumstances pupils. In those circumstances the Respondents do not propose to offer the reserve place to any child unless one appears residing in the school catchment area by the end of this week who has not previously featured in the authority's processes and planning.

 

[63] Accordingly I move on to consider section 28F (5) of the 1980 Act. I was satisfied on the evidence that both of the grounds advanced by the Respondents exist namely to admit children with siblings at the school who are on the waiting list would result in it being necessary for the authority to take on an additional teacher in terms of section 28A(3)(a)(i) since the Appellant's child is 7^th on that waiting list out of 9 in total. As Mr. Livingstone pointed out if a child meets the older sibling test it is difficult to rank them other than by moving on and placing them in an order of proximity to the school.

 

[64] Unlike the sheriffs in both Dundee City Council, Petitioners (supra) and Kavanagh v Strathclyde Regional Council (supra) I have seen the waiting list and details of siblings list and know something of that group of children who have been refused places. At present the number of pupils scheduled to start in the P1 class is 24 + 2 who are not counted. I appreciate that in terms of section 28A(3)(a)(v) it would be likely to be seriously detrimental to the educational well-being of the pupils attending the school if they were faced with an additional number of pupils which took the overall n umber up towards 30 or numbers were such that the Respondents required to set up and additional class or employ another teacher who might operate in a team with the designated P1 teacher. Such actions might take place as a result of procedures which the authority would require to follow under subsections (6) and (7) and would clearly be disruptive to all and would be likely to impact on children at a crucial stage settling into a new school, environment, procedures and people.

 

[65] I now wish to consider the circumstances of the Appellant's youngest son. It is clear from the list that the Respondents produced to me that he has the most siblings already at school and has a brother closest in age to him already at the school. All of the other children on the waiting list bar one only have a single sibling at the school already. I was not clear from the paperwork produced if in the case of this primary school the Pupil/Support Committee wished the children to be ranked firstly for siblings and then for proximity rather than as officials have done to conflate these two elements to produce a ranking on what looks like proximity but may involve other considerations. Mrs. Prophet was not able to fully help in this area and while her evidence was the Committee "would have looked at the shortest, safest walk to school" they do not say so in their minutes. The Placing in Schools Appeal Committee minutes of 14 June 2011 (No. 6/5/3) in relation to the child simply record the decision that grounds (i) and (v) apply and give no detail about personal circumstances. Some of these details are contained in the Appellant's reasons seeking an out-of-catchment place on her initial form. More information was given at the proof about the withdrawn introverted nature of the child and how he would, according to his mother not cope with the alternative school close by which has twice as many pupils and 3 P1 classes full to capacity. The Appellant explained why other alternatives were not to her liking and deferring for a year at nursery was unlikely to be financially viable, far less good for the child. The alternative of schooling the child privately was an option the Appellant had considered seriously and if need be was prepared to follow that route unless and until a place at her other sons' primary school became available.

 

[66] I did not consider the Appellant was trying to exploit the system. She had every reason to think she might secure a place for her child as two of her older children had been given. The Appellant spoke well of her other children and was not over-protective and explained how she wished in whatever way she could to support her eldest son in his choice of school. She explained his reasons for wishing to go to that establishment and accepted that if the daily commute was difficult that would be what required to be done. In that regard her evidence contrasted with that in Mather (supra).

 

{67] In light of that evidence I considered there were exceptional circumstances in this child's case that the only fair and viable option was to require the Respondents to give effect to the Appellant's placing request and admit her youngest son to the P1 class at primary school P. I am comforted by the evidence of Mrs. Prophet that the situation re class numbers may improve over the next few weeks or months. I appreciate that the Respondents will require to consider what if any additional teaching resources require to be deployed in light of my decision. I understood from Mrs. Prophet that there was unlikely to be any rush decision in reaction to any additional pupil and in light of experience the authority would monitor the situation with the Head Teacher and consider any requests for additional resources as appropriate but the evidence suggested this would not amount to an additional teacher being employed full time for a year or years.

 

[68] Obviously the Respondents will need to consider this decision against the other placing requests they have refused at this school but I note that none of the other children has a sibling as close in age to the Appellant's son and her evidence that attending school with his older brother in P2 and other brothers would give her youngest son the best and fairest start to his education. I am not aware of the full details of the other cases but given the difficult times in which we live it would not be appropriate for the Respondents to be faced with significant additional expense arising out of placing as many children they have against tried, tested and evolving criteria.

 

[69] Mr. Livingstone very properly indicated the Respondents would not be seeking expenses had they succeeded. The Appellant is legally aided to some extent as far as I could gather and accordingly I have made the usual order to allow expenses to follow success and reimburse the Appellant as required.