Board of Management of St. Marnock's National School v Secretary General of the Department of Education and Skills

• Jurisdiction: Ireland
• Judge: Mr Justice Coffey
• Judgment Date: 14 November 2017
• Neutral Citation: [2017] IEHC 683
• Docket Number: [2017 No. 726 J.R.]
• Court: High Court
• Date: 14 November 2017

BETWEEN

THE BOARD OF MANAGEMENT OF ST. MARNOCK'S NATIONAL SCHOOL

APPLICANT

AND

SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SKILLS, JACK CLEARY, MARIE LYNCH

AND

MARY T. DUNNE.

RESPONDENT

AND

MIRIAM CAMPBELL

NOTICE PARTY

[2017] IEHC 683

Coffey J.

[2017 No. 726 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Education – S. 29 of the Education Act, 1998 – Refusal to admission to desired course – Fair procedures – Prescribed admission policy

Facts: The applicant sought an order of certiorari for quashing the decision of the second to fourth respondents ('Appeals Committee') for directing the first respondent who in turn required the applicant to admit the child of the notice party in the desired course. The applicant asserted that the Appeals Committee was incorrect in its finding that the applicant had no established admission policy. The applicant claimed that it had a set policy that in case of oversubscription, it would enrol the student who was similarly placed on the basis of the greatest need.

Mr. Justice Coffey granted an order of certiorari to the applicant and remitted the matter to the first respondent for further hearing before a newly constituted Appeals Committee pursuant to s. 29 of the Act of 1998. The Court noted that there was no clear policy to deal with the oversubscription of children in the desired class as the criteria for selecting the children in greatest need was ill defined. The Court held that the Appeals Committee should have sent the matter back to the applicant for formulation of the admission policy and clarified it better.

JUDGMENT of Mr Justice Coffey delivered on the 14th day of November, 2017

1 This is an application for judicial review and concerns the lawfulness of decisions made by the Respondents in the course of an appeal brought by the Notice Party on behalf of her son pursuant to s. 29 of the Education Act, 1998 against a refusal by the Applicant to enrol him in the Speech and Language Class at St. Marnock's National School for the academic year commencing on the 1st September, 2017.

Summary

2 The Notice Party is the mother of E.C. who is one of fourteen otherwise eligible pupils who were unsuccessful in their application for three available places in the relevant class. An Appeals Committee consisting of the second, third and fourth named Respondents heard and allowed a s. 29 appeal by the Notice Party against the refusal of a place to E.C., primarily on the grounds that despite being required to do so by law, the Applicant did not have a published Admission Policy setting out the criteria to be applied to the selection of otherwise eligible pupils, where available places in the SL Class were oversubscribed. Having determined that the relevant policy could not be used to select anyone in the event of oversubscription, the Appeals Committee nonetheless applied the policy to determine that a place should be granted to E.C. on the basis that he was eligible for selection and made a recommendation to that effect to the First Named Respondent notwithstanding the fact that there were thirteen other unsuccessful pupils who were equally eligible and in circumstances where all three available places in the class had already been allocated. Upon receipt of the Appeals Committee's determination and recommendation, the First Named Respondent gave a direction to the Applicant to allocate a place to E.C. Although it raises other issues, the gravamen of the Applicant's complaint to this Court is that the recommendation made by the Appeals Committee and the direction given by the First Named Respondent were unreasonable and irrational.

3 The Applicant seeks the following reliefs:

(1) an Order of certiorari quashing the determination of the Second, Third and Fourth Named Respondents (hereinafter 'the Appeals Committee') made pursuant to s. 29 of the Education Act, 1998 (as amended) ('the Act of 1998') in the case of an appeal taken by the Notice Party on behalf of her son ('E.C.'), which said determination was communicated by letter dated the 15th August, 2017;

(2) an Order of certiorari quashing the direction of the First Named Respondent made pursuant to s. 29 of the Act and on foot of the determination of the Appeals Committee directing the Applicant ('the Board of Management') to arrange for E.C.'s enrolment in the Speech and Language Class, St. Marnock's National School from the 1st September, 2017, which said direction was made by way of letter dated the 15th August, 2017 and;

(3) an Order remitting the matter back to the First Named Respondent ('the Secretary General') for the purpose of a further hearing before a new constituted Appeals Committee pursuant to the provisions of s. 29 of the Act.

The Facts

4 St. Marnock's National School, ('the School') is located in Portmarnock, Co. Dublin and is a 'recognised school' within the meaning of s. 10 of the Act. Since 1998 it has operated a distinct Speech and Language Class ('the SL Class') together with its mainstream classes. The SL Class was established with the stated aim of providing children with severe speech and/or language impairment with the opportunity to spend one or two years in a small class setting in order to receive intensive educational and speech and language therapy support. The SL Class is staffed by a full-time teacher and a part-time senior Speech and Language Therapist employed by the Health Service Executive. The class is limited in size to seven places in accordance with the pupil/teacher ratio of 7:1 stipulated by the Department of Education and Skills in Circular 38/2007. The class caters for the entirety of North County Dublin and has been heavily oversubscribed for many years.

5 By virtue of s. 15(2)(d) of the Act, a 'recognised school' is required to 'publish' a policy on 'admission to the school' ('Admission Policy') and is further precluded by s. 19(1) of the Education (Welfare) Act, 2000 from refusing admission to a student unless its refusal is in accordance with the policy so published.

6 In this case, the School published two documents which provide information relating to admission to the SL Class:

(1) a document entitled 'Enrolment Policy';

(2) a leaflet entitled 'Referral Information for School Year September 2017' ('the Information Leaflet').

7 The documents do not refer to each other and critically make no provision as to what criteria are to be applied in order to determine priority in the event that there are more eligible applicants than places available in the SL Class.

8 Whereas the Enrolment Policy sets out the four eligibility criteria that must be met by a child applying for the SL Class, the Information Leaflet sets out the procedure for application for admission to and selection for the SL Class. The leaflet provides that admission to the SL Class is by way of 'referral' from a Speech and Language Therapist or a psychologist. It states that a referral so made should be accompanied by specified expert reports. It further provides that selection for the class is to be by a body described as an 'Admissions Advisory Committee' ('the AA Committee') which is required to make a 'decision' regarding each referral following an 'intake meeting' to take place in March/April 2017.

9 E.C. was one of seventeen children referred to the School for admission to the SL Class prior to the closing date of the 1st March, 2017.

10 In accordance with the Information Leaflet, the Board of Management referred the applications and the relevant supporting material to the AA Committee, who met to consider and assess the relevant referrals and expert reports on the 8th March, 2017 and 29th March, 2017.

11 The minutes of the two meetings are contained in a document dated 7th April, 2017. The minutes disclose that the AA Committee determined that seventeen of the pupils met the relevant eligibility criteria following which the AA Committee proceeded to rank the remaining applicants in order to determine which of the pupils were of the 'highest priority'.

12 As a result of carrying out its assessment, the AA Committee ranked E.C. fifth in order of priority. After the successful three applicant pupils had taken up their offers, the Board of Management by letter dated 26th April, 2017 wrote to the parents of E.C. to inform them that the Board were unable to offer him a place in the SL Class due to 'insufficient places'. The letter also informed E.C.'s parents of their right to appeal initially to the Chairperson of the Board of Management and thereafter to the Secretary General pursuant to s. 29 of the Act.

13 By letter dated 15th May, 2017 E.C.'s parents sought a review of the Committee's decision by the Applicant which was considered by the Board of Management on 8th June, 2017. The minutes of that meeting disclose that having been informed by the School's Principal that the 'appropriate processes' had been followed in the selection of the three successful pupils, the Board of Management determined that it could only offer places to those children 'with the greatest need' and therefore were not in a position to offer to a place to E.C.

14 By letter dated 9th June, 2017 the School Principal wrote to E.C.'s parents to inform them of the outcome of the internal appeal to the Board of Management. He explained that after prioritising the needs of the different children who applied, the three available places had been allocated to 'those children with greatest need'. The letter also informed the parents of their entitlement to appeal under s. 29 of the Act.

15 On 5th July, 2017 the Notice Party submitted an appeal in writing against the decision of the Board pursuant to s. 29 of the Education Act, 1998.

16 The grounds of appeal relied upon by the Notice Party are somewhat discursive in their nature but when looked at in the round they disclose a complaint based on her son's need for a place in the...