Scottish Sheriff Court Decisions

IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

 

Court ref. no. B 1303/11

 

 

JUDGMENT

 

by

 

SHERIFF N.M.P. MORRISON, QC

 

in the case of

 

TH (AP)

Pursuer

 

against

 

THE CITY OF EDINBURGH COUNCIL

 

Defender

 

__________________

 

 

 

Act: Nisbet, Dailly & Co, Solicitors, Glasgow

Alt: Livingstone, Brodies LLP, Solicitors, Edinburgh

 

 

Edinburgh, 17^th August 2011

 

The sheriff, having resumed consideration of the cause, sustains the defender's amended plea-in-law, repels the pursuer's pleas-in-law; confirms the decision of 21^st April 2011 of the defender as education authority; finds no expenses due to or by either party.

 

 

 

 

 

NOTE

 

 

Introduction

 

1. The pursuer made a non-catchment school placing request in December 2010 to have her son AH enrolled in the Primary 1 class at P Primary School. The request was refused by the committee on pupil/student support of the defender as education authority by letter of 21^st April 2011. The pursuer referred the decision to an appeal committee under section 28C(1) of the Education (Scotland) Act 1980 but the appeal committee confirmed the decision of the education authority by letter of 15^th June 2011. The refusal and confirmation were on the ground that placing AH in P Primary School would (1) make it necessary to employ an additional teacher (s.28A(3)(a)(i) of the 1980 Act) and (2) be likely to be seriously detrimental to the educational wellbeing of pupils attending that school (s.28A(3)(a)(v)). The pursuer appealed to the sheriff under section 28F(1) of the 1980 Act on 12^th July and I heard the appeal on 11^th, 12^th and Monday 15^th August. The P1 class begins on 18^th August. The appeal raises an important question on the interpretation of section 28A(3)(a)(i) of the 1980 Act. I regret that in the time available my decision is not as polished as I would have liked. I have not had time in this judgment to set out all the points made, although I have considered them. As well as hearing well-presented arguments for the pursuer and defender, for which I am most grateful, I also heard evidence from Miss Prophet, Head of Quality and Curriculum of the defender, and from the pursuer herself.

 

2. Under section 28F(5) of the 1980 Act, the sheriff may confirm the education authority's decision if satisfied that (a) one or more of the grounds in section 28A(3) exists or exist and (b) in all the circumstances, it is appropriate to do so, otherwise the sheriff shall refuse to confirm the decision. Where the sheriff refuses to confirm the decision, the sheriff shall require the education authority to give effect to the placing request. The onus is on the education authority.

 

3. From the school year beginning in 2011, in relation to P1 classes, the national limit in class size is 25 instead of 30 pupils: Education (Lower Primary Class Sizes) (Scotland) Amendment Regulations 2010 amending the Education (Lower Primary Class Sizes) (Scotland) Regulations 1999. For primary classes P2 and P3 the maximum number remains at 30 and, at P4 to P7, the maximum is 33. This latter number is the maximum number that a teacher may teach contractually.

 

4. At P Primary School there are currently 24 pupils from the local catchment area registered to take up places at the beginning of the school year on Thursday. One place is reserved for a child moving into the catchment area. Two places have been placed by the appeal committee and one child, the seventh on the waiting list, has been placed by the decision of a sheriff on 10^th August. AH is sixth on the waiting list. The order of priority on the waiting list was prepared in accordance with the decision of the defender's committee on pupil/student support on 17^th March 2011. No exception was taken to the order of priority. A place has been reserved for AH at C Primary School which was in the catchment area of the pursuer's home.

 

 

The first ground of refusal and the meaning of section 28A(3)(a)(i)

 

5. The first argument for the pursuer was that the placing of AH at P Primary School would not make it necessary for the education authority to employ an additional teacher (s.28A(3)(a)(i)) (ground (i)).

 

6. The argument put forward by Mr Nisbet for the pursuer was as follows. Regulation 3(1) of the 1999 Regulations provided that no lower primary class shall contain more than 30 (now 25) pupils while an ordinary teaching session is conducted by a single qualified teacher. By virtue of regulation 4 pupils placed by a decision of an appeal committee under section 28E or a sheriff under section 28F are "excepted pupils" and are not counted in calculating the number of pupils up to the maximum of 25 in class for one teacher. Thus, although at present there were 27 children due to be in P1 at P Primary School (28 if the reserve place was filled by an incoming pupil to the catchment area), for the purposes of calculating the number in class for one teacher the number is 24 because the three excepted pupils are excluded. Thus, it is not necessary for the defender to employ an additional teacher. So long as the overall number of pupils (including the excepted pupils) did not exceed 30, no additional teacher would be required because the maximum for P2 and P3 is 30 pupils. It would only be necessary for the defender to employ an additional teacher if the defender itself decided (not the appeal committee or the sheriff) to place one or more children over the maximum of 25. Every excepted pupil - up to 30 - would not result in the defender ever having to employ an additional teacher. The reason for 30 being the cut off figure was because at P2 the pupils who are excepted pupils for the purposes of P1 cease to be excepted pupils and, if the number exceeds 30, the ground in section 28A(3)(a)(vi) would be engaged.

 

7. If the sheriff did not confirm the defender's decision, AH would be given a place at P Primary School, he would be an excepted pupil and, although the number of pupils would be 28 (or 29 with the reserve place filled), it would not be necessary to employ an additional teacher. Therefore, the argument for the pursuer goes on, AH may be placed, automatically, by the sheriff as an excepted pupil and the ground for the refusal of the placement under ground (i), that it is necessary to employ an additional teacher, is not satisfied: excepted pupils are not counted in calculating the maximum allowed to one teacher.

 

8. This argument, it seemed to me, was circular. It could lead to unfairness or, as Mr Livingstone for the defender submitted, to absurdity. For example, those who appeal succeed whether or not the circumstances on which the placement was sought were meritorious. Mr Nisbet accepted that there could unfairness, but submitted that, if that were so, the legislation led to that result. Parliament intended, he submitted, to allow excepted pupils until the pupils numbered 30.

 

9. I was first referred to the decision in KJD v East Lothian Council, 22^nd August 2008 and the subsequent judicial review of the sheriff's decision in East Lothian Council v D, [2008] CSOH 137. The argument appears to have been accepted. This case arose at a time when the law was that 30 pupils was the maximum, the Government guidelines was for 25 and the local authority's policy was to follow the guidance. In the judicial review it was held, as argued for the parent, that the word "necessary" in section 28A(3)(a)(i) had to be construed in accordance with the 1999 Regulations (which provides that excepted pupils are not counted). I am not entirely happy with the phraseology which appears to reverse a well known canon of statutory construction. The expression "read together" might be better. In the judicial review, the effect of Lord Woolman's decision, said Mr Nisbet, excludes an interpretation in which one would have regard to the educational authority's policies, purposes and practices in considering the meaning of the word "necessary". Following Bennion on Statutory Interpretation, 5^th edition, at page 711, Parliament was presumed to legislate in the knowledge of relevant judicial decisions. A consultation exercise, which preceded the 2010 Amendment Regulations reducing P1 maximum from 30 to 25 pupils, expressly referred to the above judicial review in paragraph 8 and to the "excepted" pupil provisions in paragraph 15; but, said Mr Nisbet, the law was not changed. Furthermore, in the transcript of proceedings before the Education, Lifelong Learning and Culture Committee on 27^th October 2010 at column 4080 the issue was raised; and it was confirmed by Mr Michael Kellet, deputy Director for Schools in the Scottish Government, that the existence of excepted pupils would continue. Therefore, it was submitted, the effect of the judicial decisions was not changed by the 2010 Amendment Regulations. I did wonder if, in paragraph 8 of the consultation document, the Government thought in fact that by reducing the maximum from 30 to 25 it had taken account of the case law and that that would exclude placings over 25 rather than 30. Paragraph 15 of the document seems not to be directed at the effect of the case law.

 

10. Mr Livingstone took the same view on these paragraphs. He also argued that, in the transcript of the committee proceedings, the penultimate paragraph of column 4080 made it clear that it was thought that reducing the maximum from 30 to 25 was going to overcome the problem of the case law, and that that was the intention. It was clear in the last paragraph in that column, in relation to excepted pupils, that Mr Kellet was referring to cases of excepted pupils which did not include an excepted pupil by virtue of a decision of the sheriff. At worst there was a misunderstanding of the issue rather than an acceptance of it.

 

11. I do not accept that the consultation document and the proceedings before the committee make it plain that the Parliament intended not to change the law on the effect of judicial decisions in relation to excepted pupils and section 28A(3)(a)(i). If anything, it seems to me that Parliament thought that it was overcoming the problem of increased class sizes by judicial excepted pupils by reducing the maximum from 30 to 25. Whether it did have that effect is another matter. Of course, the primary purpose of reducing class sizes from 30 to 25 was to implement a Government policy on class sizes and not merely to get round a problem of the effect of excepted pupils.

 

12. As Mr Livingstone submitted, I am not bound by the decision of the sheriff or of the Lord Ordinary in the East Lothian cases. The decisions were, he argued, not even persuasive; they could be distinguished from the circumstances of the present case. In and at the time of those cases, while the policy was for 25 pupils, the statutory maximum was 30; now the statutory maximum is 25. The effect of those decisions would not breach the statutory maximum of 30; in the present case, the effect of those decisions would breach the statutory maximum of 25. I agree that the East Lothian cases can be distinguished as Mr Livingstone argued.

 

13. Mr Livingstone submitted that the pursuer's argument, if correct, would lead to absurd results. An education authority could never succeed on ground (i) on appeal. It could only succeed on the ground in section 28A(3)(a)(vi) after the number of pupils reached 30. Furthermore, it might have to admit those on the waiting list (up to the maximum of 30) on a review under section 28F(6). If the view were taken that the education authority could not admit them because it would be in breach of the 25 limit (because children placed by it are not excepted pupils) and refused to admit on ground (i), there could be an appeal and that child would be admitted on the ground that ground (i) did not exist. A review process of other cases would have to be carried out again under section 28F(7) and so on. There would be a process of refusal, appeal and automatic granting of the appeal until ground (vi) could be invoked. An education authority could find itself having to employ an extra teacher although ground (i) was held not to exist. It could mean, notwithstanding that Parliament intended to reduce P1 class sizes from 30 to 25, that that intention was defeated. That could never have been intended. If the pursuer's argument were correct, the 2010 Amendment Regulations had no effect and the position was as before them. It also appeared to be the case on the pursuer's argument that a child in the catchment area on the waiting list could be beaten by a non-catchment area child who appealed: a manifest unfairness.

 

14. Following Lord Drummond-Young in Aberdeen City Council Petitioners, 26^th April 2002 and Inco Europe v First Choice Distribution [1999] 1WLR 270, Mr Livingstone invited me to look at the amending regulations to find the intention and adopt a purposive approach. I was referred to a passage in Bennion on Statutory Interpretation at page 458 that a strained construction of an enactment may be justified where the circumstances of a literal construction are so undesirable that Parliament cannot have intended them (unless Parliament really mean it: p.462). I was also referred to a passage in Bennion at page 264 that regulations, as statutory instruments, do not receive the same scrutiny as Bills and one could therefore be less reluctant to adopt a purposive approach. Mr Nisbet relied on the proceedings before the committee as evidence that, in the Scottish Parliament, there was such scrutiny.

 

15. I am clear that Parliament intended to reduce P1 class sizes from 30 to 25 and did not intend, as I have indicated, that that principle could be defeated by classes being increased to 30 because pupils placed on appeal are treated as excepted pupils. I am also clear that the consequences of the pursuer's interpretation could never have been intended, leading to absurd and unfair results.

 

16. Before I turn to discover whether a purposive approach can be made, there are two other issues to be dealt with.

 

17. The first is whether the court can look at the consequences of the decision in the case before it and the single child or whole school argument. Mr Livingstone referred me to Dundee City Council, Petitioners, 1999 Fam LR 13 at 13-11, Smiles v City of Edinburgh Council, 2006 SLT (Sh Ct) 6 and Mather v City of Edinburgh Council, 27^th September 2010, in support. The cases that adopted the single child approach - that one looked only at the child who was the subject of the appeal - were preceded and succeeded by cases adopting the whole school approach. The cases above cited all come after the single child approach cases. The whole school approach meant that the sheriff could look at the consequences including the consequences of the review procedure in reaching a decision.

 

18. Mr Nisbet said that there was divided judicial opinion on whether the sheriff had to have regard to that in reaching a decision on an appeal before the sheriff. He argued that the decisions in the East Lothian case adopted the single child approach. At its highest in my opinion, if it were adopted, it was only implied. There is no express reference to the single child approach in either judgment. I was referred to an article by Derek Auchie entitled "An Oasis: Education, Placing Requests and Religion" in 2002 SLPQ 170. Mr Nisbet adopted the reasoning for looking at the case of the child who was the subject of the appeal and not the whole school approach at page 175. Mr Livingstone said that the single child approach results in a race to the sheriff.

 

19. It was submitted by Mr Nisbet, that section 28A(3)(a) directed the sheriff to look at "the" child and not any other child. I was also referred to parallel and similar provisions for special needs children in Schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 and to what the Lord President said at paragraph [26] in City of Edinburgh Council v MDN, [2011] CSIH 13. I agree with Mr Livingstone that the matters in the relevant provision (para.3(1)(f)(iii) of Sch.2) could only apply to the child in question, and that explains the exclusion of consideration of other pupils. The analogy is wrong.

 

20. Secondly, Mr Nisbet argued that a review by the education authority was only required under section 28F(6) where the judgment of the sheriff is inconsistent with any decision of the education authority. The review would not have to be carried out as the decision of the sheriff would not be inconsistent because the decision of the education authority was not based on excepted pupils. It seems to me that it would be inconsistent. The education authority decided that an additional teacher was required because the class size would be exceeded; the sheriff would be deciding that it would not, albeit on the basis of different reasoning.

 

21. I think one can distinguish considering the consequences for the purposes of interpreting a statutory provision from considering the consequences of a decision in respect of one child. The former is, in my opinion, clearly legitimate. The latter may be permissible depending on the statutory provisions being considered. In relation to paragraph 3(1)(f)(iii) of Schedule 2 to the 2004 Act, it would be excluded. In relation to grounds (i) and (v) of section 28A(3)(a) of the 1980 Act, it is legitimate. I do not see how one could apply either ground without considering the effect on other pupils. The single child approach leads to the "just one more child won't make a difference" argument, which I do not accept.

22. Can I adopt a purposive approach? Mr Livingstone argued that I could. The task of the sheriff, under section 28F(5), is to "confirm the education authority's decision" or to refuse to confirm it. The sheriff may only confirm if, firstly, one or more of the grounds of refusal in section 28A(3) exists or exist. Section 28A(1) imposes a duty on the education authority to place a child, but under section 28A(3) that duty does not apply if any one of the grounds in section 28A(3) applies. Accordingly, what the sheriff is considering is whether one or more of the grounds of refusal available to the education authority exists or exist at the time of the hearing before the sheriff. Mr Nisbet says that that approach defeats the purpose of a re-hearing before the sheriff on the basis of the facts at the date of the hearing (Dundee City Council, Petitioners, above, at 13-16).

 

23. I accept that the appeal is a re-hearing having regard to the current facts. I do not accept that Mr Livingstone's approach defeats the purpose of a re-hearing. I did wonder, during Mr Nisbet's argument, what the significance was of the words "the education authority's decision". Mr Livingstone's argument gives them context and content. The sheriff is not making his or her own decision in a vacuum unconnected with the education authority's decision. The sheriff is deciding whether to confirm or to refuse to confirm that decision. The sheriff does so having regard to the current facts. This approach avoids the absurd and unfair consequences to which Mr Livingstone alluded. It allows the sheriff to decide a case on the merits of ground (i). It gives life to the statutory P1 limit of 25 pupils. It would enable a sheriff to decide whether it was actually necessary to employ an additional teacher. It would also enable a sheriff to go on to consider whether it was appropriate in the circumstances to confirm the decision. In my opinion this is the correct approach.

 

24. On the facts, admitting AH to P Primary School would make it necessary (on any view of the meaning of that word) for the authority to employ an additional teacher.

 

 

Section 28A(3A)

 

25. In relation to section 28A(3)(a) the defender is keeping open one reserve place for a pupil coming into the catchment area. The effect of this provision is that the defender does not fail to satisfy ground (i) because there are 24 pupils due in the class rather than 25.

 

 

The second ground of refusal

 

26. I now turn to consider section 28A(3)(a)(v) (ground (v)) and the issue of serious detriment. Mr Nisbet argued that looking at the impact of one child, applying the single child approach, adding AH would not be seriously detrimental to education well-being of pupils attending the school. The serious detriment ground was worded in the same way as in regulation 4 of the Schools General (Scotland) Regulations 1975 and that the difficult test to be satisfied is "was the detriment of such magnitude to justify exclusion?" The evidence fell far short of that. The defender was reserving a place for an incoming catchment child; therefore, it was already content to add a 28^th child to the class (24 registered, three excepted pupils and any reserved child). The evidence of Miss Prophet was that she did not know, until she knew what the "cohort" of pupils was, what the effect of an extra pupil would be. Going beyond 25 pupils increased the likelihood, she said, that the defender would need to supplement the class with additional staff. "Likelihood" was not the same as "likely" in ground (v), Mr Nisbet submitted.

 

27. Mr Livingstone's submission was that Miss Prophet's evidence explained what lay behind the policy of limiting the class to 25. International research, she said, showed that systematic formal teaching (pupils sitting in rows at desks) was not appropriate before the age of six or seven. Carrying on with the structured play method of nursery school which required teacher intervention was appropriate in P1. That required a higher staff ratio to pupils: the more in the class, the less time for each pupil. The defender had adopted this method. A 28th child is the one that makes the difference. With three excepted pupils already included, there were already three additional children's needs and interventions to consider, she said. While she could not say, until she had seen the cohort, that there would be, she could say that there was a likelihood of serious detriment because it would be necessary review the staff ratio. I accept that that was her evidence.

 

28. I do not make a distinction between "likelihood" and "likely". The evidence discloses that the placing of AH would be likely to be seriously detrimental to the educational well-being of pupils attending the school. I agree with Mr Livingstone that the provision in the 1975 Regulations that a pupil shall not be "excluded" is different from the approach under section 28A(3). I am satisfied that ground (v) is made out.

 

 

Is confirmation appropriate in all the circumstances?

 

29. I now turn to consider all the circumstances under section 28F(5)(b). Mr Nisbet agreed that under this head the consequences, reviews and whole school approach were legitimate.

 

30. The placing request was made on a number of grounds. AH's older brother HH, who was two years older, attends P Primary School. It would be impossible for the pursuer to drop both children off at different schools at the same time and it would be easier to drop them both off at P Primary School. AH attended Princes Elizabeth Nursery School near P Primary School. AH was familiar with P Primary School and some of the staff. The pursuer's children experienced bullying and racial harassment in the street where they lived and at the public library which was beside C Primary School. AH was born prematurely, was slower to develop and would benefit from going to P Primary School with children with whom he had been at nursery. In evidence it was explained that it was still a struggle to get AH to eat well (in early years he had to use a gastric tube). He does not handle change very well. He vomited when stressed as a result of which he did not get the energy he needed. At the appeal committee stage it was was added that HH had additional support needs because he was finding it difficult to concentrate in class and he could not be moved from P Primary School to C Primary School. He stutters, which is worse when he is stressed; his issues were being addressed at P Primary School, the class size was half that of C Primary School, the teachers knew him and his language problem would be made worse by the stress being moved to a new primary school.

 

31. Mr Nisbet relied primarily on what the pursuer said in cross-examination was her main reason for wanting AH to go to P Primary School. This was that AH did not handle change very well because of his medical background and that he would be better in a familiar environment. Balancing the interests of the child against the circumstances where, on any view, AH would be an excepted pupil, would not involve resource implications, and AH might be given a place at P Primary School before he reached P2.

 

32. I agree with Mr Livingstone that it is not clear how AH's going to P Primary School will make a significant difference. He has to go to school; going to school is itself a significant transition; going to P Primary School could only make it marginally less significant than going to C Primary School where there would be less familiarity. I do not think that one can have regard to a speculation as to what might happen in the future about AH going to P Primary School eventually.

 

33. In relation to AH's brother being at P Primary School, it is made clear when a child is placed in a non-catchment area school that there is no guarantee that a sibling will also be so placed. There are eight other children on the waiting list with siblings at P Primary School. Also, there is no guarantee that a non-catchment child at a nursery near a primary school will be placed at that school; there is no link between nurseries and primary schools and there are no catchment areas for nurseries. There are, of course, two other children on the waiting list also at the nursery and there is no distinction between AH and them on that ground.

 

34. In relation to bullying and racial harassment, the pursuer relied on the facts that there were problems with other children in the street where they lived and outside the public library adjacent to C Primary School. At least two of these children went to C Primary School. The problem, as Mr Livingstone said, will still exist even if AH goes to P Primary School, and the pursuer said that she would drive AH to C Primary School if he went there and HH was at P Primary School. There is no guarantee that there would be no bullying or harassment at or near P Primary School, although the pursuer said that she had not encountered it when walking in the P Primary School area. Both schools have anti-bullying and harassment policies within the schools.

 

35. Logistics was another ground. It was said that it would be easier if AH went to P Primary School because HH was there. Otherwise, the pursuer would have to take AH to C Primary School first and then HH to P Primary School, and she could not take them to both schools at the opening time. There was evidence from Miss Prophet that C Primary School runs a breakfast club from 8 am. Children arriving early at school would be scooped up into the breakfast club. I do not know if scooping up a child not having breakfast would involve a payment. In any event it would appear to be perfectly possible for the pursuer to take AH to C Primary School first, where he could be scooped up into the breakfast club, and HH to P Primary School thereafter.

 

36. HH is currently being assessed to see if a lack of confidence and being less able to communicate well in class might be due to any past medical history. He has not been referred to an educational psychologist. The pursuer said that it would be better if AH moved to P Primary School rather than that HH moved to C Primary School because his language problem would be made worse by the stress. If moved, there might be stress because P Primary School was dealing with his difficulties, for example, by the teacher having him close to her, and some support was going to be put in place for next year. There does not seem to me to be any reason why any needs that HH might have would not be met at C Primary School.

 

37. I am satisfied that, in all the circumstances, it is appropriate to confirm the decision of the education authority.

 

38. The defender did not seek expenses in the event of success.