Carter v The Minister for Education and Skills
|Mr. Justice McGovern
|29 May 2019
| IECA 162
|Court of Appeal (Ireland)
|[C.A. Nos. 415 & 416 of 2018],Neutral Citation Number:  IECA 162 Record No. 2018/415 2018/416
|29 May 2019
 IECA 162
THE COURT OF APPEAL
Neutral Citation Number:  IECA 162
Record No. 2018/415
Judicial review – Third level education – Constitutional right – Appellants seeking to appeal against High Court judgment – Whether an un-enumerated constitutional right to third level education was engaged
Facts: The appellants, the Minister for Education and Skills, the State Examinations Commission and the Central Applications Office, appealed to the Court of Appeal against the judgment of Humphreys J delivered on 3rd October, 2018. The background to this judicial review hearing concerned the appeals process in respect of the Leaving Certificate Examination results and how the time in which that process is completed affects access to third level education for the current academic year. The appeal brought by the appellants was against the finding of the trial judge in respect of the engagement of an un-enumerated constitutional right to third level education.
Held by McGovern J that he would allow the appellants’ appeal in respect of the judge’s findings in regard to such an un-enumerated constitutional right. In McGovern J’s view, the Court of Appeal should not express any view on whether such a right exists as it was not claimed by the respondent, Ms Carter, nor were the parties who were necessary to be heard on such an issue before the court. McGovern J held that it should not have formed any part of the High Court judge’s decision and therefore the Court of Appeal should not express any view on the merits of such an argument. McGovern J held that he would also allow the appeal of the first appellant in respect of the findings of the High Court judge based on proportionality and the failure to take relevant matters into account.
McGovern J held that he would direct that the findings of the High Court judge should be set aside. In the particular circumstances that arose in this case McGovern J saw no reason to send the matter back to the High Court for further consideration.
This is an appeal against the judgment of Humphreys J. delivered on 3rd October, 2018. The background to this judicial review hearing concerns the appeals process in respect of the Leaving Certificate Examination results and how the time in which that process is completed affects access to third level education for the current academic year.
The respondent had long desired to study veterinary medicine and in the years 2016/17 she completed the practical work experience required for admission to veterinary medicine at University College Dublin (“UCD”) by working in a vet's clinic. In 2017 she sat the Leaving Certificate examination and when the results were published she was twelve points short of the required level to qualify for the course. She decided to re-sit her Leaving Certification examination the following year. On 15th August, 2018 she received her results which showed that she had obtained 554 points. On 20th August, 2018 the first round of offers was made by the Central Applications Office (CAO) and the applicant found that she 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 leaving the applicant one point short.
Having reviewed her examination scripts, the respondent realised that there had been a computation error in the score awarded to her in the business paper on which she had been examined and she realised that if this error had not occurred it would have entitled her to a Higher 1 Grade (H1) rather than the lower H2 Grade actually awarded. The higher grade would have qualified her for the veterinary medicine course in UCD.
As the State Examination Commission (“SEC”) deemed the error not to be a ‘clerical error’ it required the respondent to go through the formal appeals process. The effect of this decision was that the respondent would not have obtained a decision on her appeal until 10th October, 2018, which was outside UCD's cut-off date of 30th September for admission of students for the current academic year, which meant that even if her appeal were successful she would have had to defer the commencement of her chosen course until September 2019.
It is important to note, in the context of this appeal, that in 2018 UCD changed the cut-off date for the admission of students and it did not inform the SEC. This was not in dispute. It is accepted by the parties to this appeal that if UCD had not made that change to its admissions process that the respondent's successful appeal would have been determined in time for her to commence the course at the beginning of the UCD academic year in the autumn of 2018.
As a result of these proceedings the respondent was admitted to the UCD veterinary medicine course in the autumn of 2018, albeit a number of days after the academic year had commenced.
In this appeal the appellants challenge findings made by the High Court Judge of a constitutional right of access to higher education which they say were made in error and have significant implications for the system of admission to third level education, the rights of students and the obligations of the appellants which go beyond this particular case. It is agreed by the appellants and the notice party, UCD, that they do not seek to interfere with the respondent's position as a student on the veterinary medicine course in UCD and that the result of this appeal will not have any bearing on her status as a student on that course.
On 7th September, 2018 leave to apply for judicial review was granted by Creedon J. on the grounds set out in para. E of the statement of grounds which include the following:-
• the appellants misconstrued and/or misapplied their own policy;
• the decision of the appellants is unfair and lacking in proportionality and reasonableness;
• the decision of the appellants amounts to a breach of fair procedure and of the respondent's rights to natural and constitutional justice; and
• the respondent has been denied fair procedures.
The matter came back before the High Court (Humphreys J.) on 11th September, 2018 and on that date the Minister was released from the proceedings with the consent of the other parties. Thereafter the Minister had no involvement in the proceedings. This matter is of significance in view of certain findings made by the trial judge on the question of whether there exists a constitutional right of access to higher education and vocational training. No claim was made by the respondent that such a right existed and the respondent declined an opportunity to make that case when invited by the trial judge. These findings or observations were made after the Minister had been released from the proceedings and in circumstances where he had no notice that any such claim was being advanced. During the appeal there was some debate as to whether the trial judge's remarks on this issue were obiter or whether they amounted to findings and this issue will be discussed later in the judgment. But the Minister asserts that, in any event, the issue should not have been canvassed in his absence and in circumstances where it did not form part of the statement of grounds but came into the case as a result of judicial intervention.
The SEC is an independent body established under the powers granted to the Minister for Education and Skills by s.54 of the Education Act 1998, and created by the State Examination Commission (Establishment) Order 2003 (S.I. 373/2003) (“the Establishment Order”). Pursuant to Art. 6, the SEC has responsibility for the delivery of the state certificate examinations.
The SEC organises the holding of state examinations, involving the preparation of examination papers and materials along with the prescribing of procedures for examinations and arranging for the marking of work and the issuing of results. Within that remit it organises the holding of both the Leaving Certificate and Junior Certificate examinations on an annual basis. By virtue of Art. 6(1)(f) of the Establishment Order the SEC is required, inter alia, to:-
‘determine procedures to enable the review and appeal of results of examinations at the request of candidates…’
So far as these proceedings are concerned the applicable arrangements for the Leaving Certificate, including the processes applicable for viewing scripts and the appeal process, were contained in the 2018 candidate information booklet. The results of appeals made in 2018 were due to be published in mid-October 2018.
If a student wishes to question a mark given to him/her, he/she is entitled to:-
(i) have the marking of the script reviewed through the appeals process; and/or
(ii) seek rectification outside the appeals process.
They are separate processes. One is clerical in nature and the other more substantive. The rectification outside the appeals process (“ROAP”) is a process through which certain limited errors may be corrected and so may be rectified by clerical action. As outlined in the candidate information booklet the ROAP mechanism is specifically precluded from applying to questions of interpretation relating to disallowed questions, computation of marks, the application of the marking scheme and claims that the work has not been fully marked.
The purpose of the Leaving Certificate examination is to satisfy the achievement of completing second level education. While the CAO and the Higher...
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Elijah Burke v The Minister for Education and Skills
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