Carter v Minister for Education and Skills

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date03 October 2018
Neutral Citation[2018] IEHC 539
Docket Number[2018 No. 738 J.R.]
CourtHigh Court
Date03 October 2018

[2018] IEHC 539

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 738 J.R.]

BETWEEN
REBECCA CARTER
APPLICANT
AND
THE MINISTER FOR EDUCATION AND SKILLS, THE STATE EXAMINATION COMMISSION

AND

THE CENTRAL APPLICATIONS OFFICE
RESPONDENTS
AND
UNIVERSITY COLLEGE DUBLIN – NATIONAL UNIVERSITY OF IRELAND, DUBLIN
NOTICE PARTY

Judicial review – Balance of justice – Higher education – Applicant seeking judicial review – Whether the applicant’s fundamental rights were engaged in the question of her admission to higher level education

Facts: The applicant, Ms Carter, in 2017, sat the Leaving Certificate examination but did not meet the required level to qualify for veterinary medicine in UCD. She then repeated the Leaving as an external candidate. In August, 2018, she was informed that she again did not meet the course requirement. She viewed her examination scripts and saw that there had been a computation error in the business paper which, had it not occurred, would have entitled her to a H1 grade rather than the lower H2 grade actually awarded. The higher grade would have qualified her for her chosen course. She completed a form for review outside the appeal process (ROAP1 form). On 1st September, 2018 she electronically paid for the review application and also for a formal appeal and on 3rd September, 2018 she submitted a hard copy formal appeal form (AP1). On the 4th and 5th September, 2018 an internal memorandum was prepared to the effect that the computational error was “not a clerical error” and that the matter was going for appeal. The applicant sought relief by way of judicial review. On 7th September, 2018 leave was granted by Creedon J. The matter came before the High Court (Humphreys J) on 11th September, 2018. The action was heard on 25th and 26th September, 2018. Humphreys J announced the order at the conclusion of the hearing and indicated that written reasons would be provided later.

Held by Humphreys J that: (i) given the intimate connection between access to higher education and the rights that were specifically relied on by the applicant, including the right to earn a livelihood, the applicant’s fundamental rights were engaged in the question of her admission to higher level education and therefore in the process and timescale for informing her of the outcome of her appeal against her Leaving Certificate grades; (ii) the proportionality test casts an obligation on a respondent to demonstrate that the interference with the right at issue meets the Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 criteria, which had not been discharged in this case; (iii) a process that had deprived the applicant of the first weeks of her course through no fault of her own, and threatened to require a postponement of her year of entry altogether, was inherently disproportionate and substantively unfair; (iv) the State Examinations Commission (SEC) has a duty to take all relevant facts into account before adopting procedures, which was not done in this case; (v) the SEC’s statutory duties under art. 6(1)(f) of the State Examinations Commission (Establishment) Order 2003 to “determine procedure to enable the review and appeal of results of examinations at the request of candidates” must be construed as involving an implied requirement to provide for timely review and appeal in accordance with the constitutional rights of persons subject to those procedures, a requirement that was not complied with in this case; (vi) in terms of the balance of convenience and justice relevant to a stay, they were massively in favour of the applicant being allowed to have her paper correctly re-marked even apart from the point that the stay would have nullified the benefit to the applicant of having won the case.

Humphreys J, on 26th September, 2018, made the following orders: (i) an order compelling the SEC to consider and determine the appeal of the applicant and notify the applicant, the Central Applications Office (CAO) and UCD by 12 noon on Friday 28th September, 2018; and (ii) a consequential order that the CAO is to notify the applicant and UCD of any offer of a place by 5 pm on 28th September, 2018 and subject to the applicant’s acceptance, that UCD forthwith facilitate the applicant’s admission to any course so offered, prior to 1st October, 2018.

Application granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of October, 2018
1

Writing in 1957, Professor C. Northcote Parkinson announced the principle that ‘ delay is the deadliest form of denial’ ( The Law, 1957, 1981 Penguin ed., p. 158). If proof were needed of Parkinson's Law of Delay, the present case will stand as a helpful illustration.Instead of saying “No”, the P[rohibitive] P[rocrastinator] says “In due course” … The theory of N[egation by] D[elay] depends upon establishing a rough idea of what amount of delay will equal negation. If we suppose that a drowning man calls for help, evoking the reply “In due course,” a judicious pause of five minutes may constitute, for all practical purposes, a negative response’ (p. 157).

Facts and procedural history
2

The applicant is a student who has had the life-long dream of being a veterinary surgeon. In 2016-17 she completed the practical work experience required for admission to veterinary medicine in UCD by working in a vet's clinic. In 2017, she sat the Leaving Certificate examination but was twelve points off the required level to qualify for the course. She then determined to repeat the Leaving as an external candidate, studying at home under her own steam.

3

In the meantime, on 23rd November, 2017, unknown to the applicant and to the State Examinations Commission (SEC), UCD's Programmes Board decided to bring forward its cut-off date for current students so that any places offered after 30th September would be deferred for a calendar year. The SEC only became aware of UCD's policy in the course of the present judicial review proceedings (Affidavit of Andrea Feeney, para. 37). The Central Applications Office (CAO), which acts on behalf of higher education institutions in offering places, has published a handbook which states that the offer season ends on 17th October. But while superficially that might give the impression that participating institutions will take students for the current year up to that date, the handbook does not preclude any given institution from deferring offers to the following year.

4

The 2018 Leaving Certificate exams took place between 6th and 22nd June. Results were posted on 15th August, 2018, at which stage the applicant was informed that she had 554 points. On 20th August, 2018, the first round of CAO offers were made, at which point the applicant was six points short of the course requirement for veterinary medicine in UCD, which was 560 points. On 28th August, 2018, second round offers were made and the course requirement dropped to 555 points, the applicant being only one point short.

5

The applicant's initial option was to accept her second preference course, Health and Performance Science at UCD. On 30th August, 2018 she contacted UCD by email to change her mind and state that she was not taking up this option and was going to repeat the leaving cert yet again.

6

On 31st August, 2018 the applicant viewed her examination scripts and saw that there had been a computation error in the business paper which, had it not occurred, would have entitled her to a H1 grade (the highest available) rather than the lower H2 grade actually awarded. The higher grade would have qualified her for her chosen course.

7

The SEC's functions, conferred by the State Examinations Commission (Establishment) Order 2003 (made under s. 54 of the Education Act 1998), include determining procedure to enable the review and appeal of results of examinations at the request of candidates (art. 6(1)(f)). The SEC procedures provide two routes for students dissatisfied with their grade – (i) review outside the appeal process (ROAP) or (ii) formal appeal. The review option is limited in scope and is dealt with by clerical staff, and is a fast-track process because the grade can be changed very rapidly where that process applies. The appeals process goes to an examiner who in principle has appropriate educational qualifications, and takes considerably longer.

8

The applicant forthwith completed a form for review outside the appeal process (ROAP1 form). On 1st September, 2018 she electronically paid for the review application and also for a formal appeal and on 3rd September, 2018 she submitted a hard copy formal appeal form (AP1). The appeal form is attached to the candidate script and sent to the SEC by the school. Also on Monday 3rd September, 2018 the orientation of new students for UCD veterinary science began, which is effectively the start of the academic year and of the course. On 4th September, 2018 the applicant contacted the SEC by email, in which she stated that ‘ I sat the leaving cert as an external candidate, meaning I studied myself for the entire year which is something I truly feel shows how extremely passionate I am with regards (sic) to becoming a vet. I never had the chance to celebrate my achievements nor acknowledge them. I have been left devastated over the past few weeks and this is solely down to an error made in the adding up of three figures … after all my diligent work I am left without a place because of not mine, but somebody else's mistake’.

9

This was followed up by an email from a friend on her behalf on the following day as well as phone contact from the applicant's mother and aunt on 4th, 5th and 6th September, 2018. On the 4th and 5th September, 2018 an internal memorandum was prepared to the effect that the computational error was ‘ not a clerical error’ and that the matter was going for appeal. The applicant was informed of this on 6th September, 2018.

10

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1 books & journal articles
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