Board of Management of Presentation College Athenry v Secretary General of the Department of Education and Skills

• Jurisdiction: Ireland
• Judge: Ms. Justice Ni Raifeartaigh
• Judgment Date: 26 July 2017
• Neutral Citation: [2017] IEHC 521
• Docket Number: [2017 No. 250 J.R.]
• Court: High Court
• Date: 26 July 2017

BETWEEN

BOARD OF MANAGEMENT OF PRESENTATION

COLLEGE ATHENRY

APPLICANT

AND

SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SKILLS, MARGARET COONEY, CATHERINE O'CARROLL,

AND

JOE HARRISON

RESPONDENTS

AND

O.I.

AND

S.I.

NOTICE PARTIES

[2017] IEHC 521

Ní Raifeartaigh J.

[2017 No. 250 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Education – S. 15 (2) (d), s.29 of the Education Act, 1998 – Jurisdiction of the Dept. of Education – S. 19 (1) of the Education (Welfare) Act, 2000 – Appeal from the decision of Dept. of Education – Enrolment policy – Legacy issues

Facts: The applicant sought an order of certiorari, by way of judicial review, against the decision of the appeals committee (‘committee’) appointed by the first name respondent directing the applicant to arrange for the enrolment of the child of the notice parties in the school of the applicant. The committee accepted the evidence of the notice parties by way of an affidavit alleging that the child had been shifted in a particular feeder primary school following discussions with the applicant's former secondary school principal. The applicant contended that the former principal had never given such a guarantee, which was contrary to the school's published admission policy. The applicant contended that there was a breach of fair procedures concerning the assessment by the committees by ignoring the email of the former principal as evidence and allowing the evidence of the parents. The applicant contended that the child of the notice parties had not satisfied the requirements of admission pursuant to the enrolment policy. The applicant contended that the scope of appeal by the notice parties under s. 29 of the 1998 Act was limited to a review of the lawfulness of the decision and that the committee had no jurisdiction to interfere with the board of management's decision made in accordance with the valid enrolment policy.

Ms. Justice Ni Raifeartaigh granted the relief of certiorari and remitted the matter for a fresh consideration by the committee. The Court, taking note of various High Court judgements, held that a committee must conduct its full appeal within the parameters of the school's enrolment policy, and that in the present case; it took into account certain circumstances that the enrolment policy would not have permitted. The Court held that the committee was not entitled to depart from or disregard the enrolment policy and thus, erred in giving weight to a matter that was extraneous to the enrolment policy namely, that the child had been placed in a particular feeder primary school following discussions with the former secondary school principal. The Court held that it failed to understand how the school legacy issue would be an important factor in reaching the decision as to the admission of the child of the notice parties as those children from non-feeder schools fell into another category in the school's enrolment policy (e.g. a sibling already in school). The Court, thus, quashed that ground formulated by the notice parties in their affidavit on the basis of lack of rationality. In relation to the issue of alleged breach of fair procedures by the committee, as contended by the applicant, the Court held that the question of evidence was a matter for the committee and the Court should not interfere unless a conclusion was reached, which was entirely unsupported by the evidence. The Court held that it did not propose to quash the decision on any ground in which the committee approached the question of evidence regarding the interactions between the parents and the former principal.

JUDGMENT of Ms. Justice Ni Raifeartaigh delivered on the 26th day of July, 2017.

Nature of the Case

1 This case concerns a challenge by way of judicial review to a decision made by an appeals committee (‘the committee’) appointed by the Department of Education (‘the department’) pursuant to s. 29 of the Education Act 1998 (‘the Act of 1998’). The committee allowed an appeal on behalf of a child (‘C.I.’) from a decision of the board of management of a secondary school refusing to enrol him in the school. The applicant school seeks certiorari of the determination of the committee as well as of the direction of the Minister directing the school to arrange for the child's enrolment in the school in September, 2017, and an order remitting the matter back to a newly constituted committee. The primary issue in the case is whether the committee was entitled to take into account the fact that the parents of the child in question had moved their child to a particular primary ‘feeder’ school for the last two years of his primary education as a result of discussions with the former principal of the secondary school in question. The enrolment policy of the secondary school provided that, in respect of children who did not fall into certain categories, such as siblings of children already in the school, the selection procedure was to be by random lottery. The child in question had not been selected by lottery but the effect of the committee's decision, if valid, is that the school would be required to admit him despite his not having been selected in accordance with the procedure set out by the school's enrolment policy.

Relevant Legislative Provisions

2 Section 15(2)(d) of the Act of 1998 deals with the publication of school policies and provides that, in carrying out its functions, a school's board of management shall:-

‘publish, in such manner as the board with the agreement of the patron considers appropriate, the policy of the school concerning admission to and participation in the school, including the policy of the school relating to the expulsion and suspension of students and admission to and participation by students with disabilities or who have other special educational needs, and ensure that as regards that policy principles of equality and the right of parents to send their children to a school of the parents' choice are respected and such directions as may be made from time to time by the Minister, having regard to the characteristic spirit of the school and the constitutional rights of all persons concerned, are complied with’.

No directions have been published by the Minister pursuant to this section.

3 Section 19(1) of the Education (Welfare) Act 2000 (‘the Act of 2000’) provides that:-

‘The board of management of a recognised school shall not refuse to admit as a student in such school a child, in respect of whom an application to be so admitted has been made, except where such refusal is in accordance with the policy of the recognised school concerned published under section 15(2)(d) of the Act of 1998.’

4 Section 29 of the Act of 1998 provides that, where a board of management refuses to enrol a student in a school, the parent of a student may appeal that decision to the Secretary General of the Department of Education and such appeal should be heard by a committee appointed in accordance with the section. On the determination of an appeal, the committee sends notice in writing of its determination and the reasons for it to the Secretary General. Under s. 29(6), where a committee upholds a complaint in whole or in part and it appears to the committee that any matter which was the subject of the complaint should be remedied the committee shall make ‘recommendations’ to the Secretary General as to the action to be taken. Section 29(7) provides that, as soon as practicable after the receipt by the Secretary General of that notice, the Secretary General may give such directions to the board as appear to the Secretary General to be expedient for the purpose of remedying the matter which was the subject of the appeal and the board ‘shall act in accordance with such directions’.

Admissions and Enrolment Policy of the School

5 The admissions/enrolment policy of Presentation College Athenry (‘the school’) in its revision of 19th September, 2016, provided detailed criteria for the selection of incoming pupils. It provided as follows:-

‘Criteria for selection first year

The Board of management will set a figure each year for the number of students to be accepted into first year. This figure will depend on the overall number of students in the school and the overall capacity for which the school can cater and is contingent on provision of the necessary accommodation and resources by the Department of Education and Skills.

Presentation College Athenry will offer 180 places in first year for September 2017.

Admission to the school in First Year will depend on the places available in that given year. The school must receive a fully completed application form before the closing date. Attendance at the Open Night is not compulsory, but can be helpful. In the event that the number of applications exceeds the number of places available, places will be allocated according to the following order of priority.

1. Brothers and sisters of current students who have completed all of their second level education at Presentation College Athenry. (sic)

2. Brother and sisters of past students who completed all of their second level education at Presentation College Athenry.

3. Sons and daughters of school staff employed by the school at the time of enrolment.

4. Students who have attended Scoil Chroí Naofa for all of their Primary education and boys who were enrolled there from junior infants until first class.

5. Sons and daughters of past students who completed all of their second level education at Presentation College Athenry and who are attending the feeder primary schools as listed on page 4 of his policy.

6. Students attending the feeder primary schools as listed on page 4 of this policy.’ (Emphasis added).

In this judgment, I will refer to children in the last category referred to as the ‘category six’ children.

6 The enrolment policy went on to provide as follows:-

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