Fagan v Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 07 June 2022
• Neutral Citation: [2022] IEHC 379
• Court: High Court
• Docket Number: [Record No. 2021/634JR]

Between

G.F. and L.F. (A Person of Unsound Mind, Not so Found, Suing by His Mother and Next Friend, G.F.)

Applicants

and

The Minister for Education and Skills, The National Council for Special Education, Ireland and The Attorney General

Respondents

and

The Board of Management of a National School

Notice Party

[2022] IEHC 379

[Record No. 2021/634JR]

THE HIGH COURT

Education – Special needs – Legitimate expectation – Applicants challenging the withdrawal of sanctioning for a specific learning disability special class – Whether the doctrine of legitimate expectation applied

Facts: The applicants challenged the withdrawal of sanctioning for a special class known as a Specific Learning Disability Special Class (SLD class), which had been sanctioned by the second respondent, the National Council for Special Education, for the notice party’s school on 16th April, 2021; but which sanction was subsequently withdrawn by them on 6th May, 2021, on the instructions of the first respondent, the Minister for Education and Skills, because the policy for the provision of primary education known as the “new model” provided that, as far as possible, students with special needs would be educated in mainstream schools, with such supports as were necessary. The applicants challenged the withdrawal of the sanctioning of the SLD class on the following grounds: (i) the second applicant’s right to an appropriate education was not being met in the notice party’s school; (ii) the Minister’s actions in adopting a strict policy of not funding new SLD classes was unlawful, as it fettered the discretion of the Minister to provide an appropriate education for pupils who cannot be accommodated in mainstream classes even with supports; (iii) the Minister acted ultra vires in adopting the new model policy for primary education by circular, rather than by regulation, as required under the Education Act 1998; (iv) in circumstances where sanctioning had been given by the second respondent for the creation of an SLD class in the notice party’s school, in which the second applicant was enrolled, he had a legitimate expectation that the respondents would not resile from their representation that such a class would be created by withdrawing the sanction.

Held by the High Court (Barr J) that the new model was a reasonable and fair policy for the provision of primary education for all within the State, it accorded with the statutory provisions of the 1998 Act and the Education for Persons with Special Educational Needs Act 2004, and it did not in its general terms contravene the constitutional rights of the second applicant. Barr J held that, having regard to the nature of the policy, it was preferable that it be implemented by means of circulars, which allowed the policy to be implemented and changed over time in a fast and efficient manner. Barr J granted a declaration that insofar as the Minister adopted a policy whereby she would not consider the creation of any new SLD classes simpliciter, the Minister acted contrary to the provisions of the 2004 Act and contrary to the provisions of the new model policy. Barr J held that where a representation was made as a result of a genuine error and where that error was corrected very quickly, those circumstances cannot give rise to any form of legitimate expectation on the part of any member of the class of persons to whom the representation may be said to have been made.

Barr J held that, having regard to the evidence of Ms Timoney as to what was required to provide an appropriate education for the second applicant and having regard to the response thereto from the school that they could not provide that level of support, the second applicant was not receiving an appropriate education and would not get such an education under the levels of Special Education Needs (SEN) supports available in the school as of November 2021. Barr J deferred making any final order in the matter, pending the outcome of the SEN inspection and review of the Special Education Teacher hours’ allocation for the notice party’s school. To that end, Barr J put the matter in for mention on 20th July, 2022 at 10.30 hours to review progress.

Relief granted in part.

JUDGMENT of Mr. Justice Barr delivered electronically on the 7 ^th day of June, 2022

Introduction.

1 . The first applicant is the mother of the second applicant. He is a young boy of nine years of age. Testing has revealed that he is a bright child. However, he was diagnosed in December 2020 as suffering from severe dyslexia.

2 . The first respondent is the Minister for Education and Skills, in which capacity she is responsible for carrying into effect the constitutional obligation on the State to provide for the primary education of children. The second respondent is a body established under the Education for Persons with Special Educational Needs Act 2004. Its functions are set out in s.20 of the 2004 Act. They include the implementation of policies formulated by the first respondent in relation to the education of pupils with special education needs. The third and fourth respondents are the State. The notice party is the school in which the second applicant is currently enrolled.

3 . Put at its simplest, the applicant's challenge is to the withdrawal of sanctioning for a special class known as a Specific Learning Disability Special Class (hereinafter ‘SLD class’), which had been sanctioned by the second respondent for the notice party's school on 16 ^th April, 2021; but which sanction was subsequently withdrawn by them on 6 ^th May, 2021, on the instructions of the first respondent, because the policy for the provision of primary education known as the “new model” provided that, as far as possible, students with special needs would be educated in mainstream schools, with such supports as were necessary. The Minister had not sanctioned funding for any new SLD classes since 2011.

4 . The second respondent accepts that sanction was given for the SLD class, but maintains that that was done in error by them, as they were not aware of the policy of the first respondent not to fund any new SLD classes, but would instead provide funding for the provision of special education needs supports in mainstream schools.

5 . The applicants challenge the withdrawal of the sanctioning of the SLD class, on the following grounds: (i) that the second applicant's right to an appropriate education is not being met in the notice party's school; (ii) that the Minister's actions in adopting a strict policy of not funding new SLD classes, is unlawful, as it fetters the discretion of the Minister to provide an appropriate education for pupils who cannot be accommodated in mainstream classes even with supports; (iii) that the Minister acted ultra vires in adopting the new model policy for primary education by circular, rather than by regulation, as required under the Education Act 1998; (iv) that in circumstances where sanctioning had been given by the second respondent for the creation of an SLD class in the notice party's school, in which the second applicant is enrolled, he had a legitimate expectation that the respondents would not resile from their representation that such a class would be created by withdrawing the sanction.

6 . In very brief terms, the respondents resist the declaratory and other reliefs sought by the applicants herein on the following grounds: (i) that while the general policy under the new model is for the education of students with special needs to take place in mainstream schools; this is not an inflexible rule or policy, such that there can be SLD classes and SLD schools where necessary; (ii) the first respondent does not accept that the educational needs of the second applicant are not appropriately catered for at present in the notice party's school; (iii) the introduction and implementation of the new model for primary education, which was introduced in 2017, is a matter of policy, which comes within the competence of the executive and within the jurisdiction of the first respondent in particular, and is not an area into which the courts can, or should intervene; (iv) the Minister was entitled to introduce a new model by means of guidelines; she was not obliged to do so by regulation under the 1998 Act; (v) the doctrine of legitimate expectation was not applicable in the present case, because the representation was made to the school, not to the applicants; the representation was made in error, which was very quickly corrected; in the circumstances the applicants did not act in reliance on the letter of sanction, nor did they act to their detriment on foot of it; accordingly, the doctrine did not apply.

7 . That is but a very brief outline of the issues that arise for determination in this case. The issues and the evidence that was led in relation to them will be discussed in more detail later in the judgment.

Chronology of Key Dates.

8 . It will be helpful to set out a brief chronology of the key dates in this case, which can be summarised in the following way:-

2012	The second applicant was born. It is not clear when he first enrolled in the notice party's school (hereinafter referred to as ‘the school’), however he was in second class in the school in the academic year 2020/2021.
2/12/2020	The second applicant was examined by Ms. Patricia Timoney, Chartered Educational Psychologist. She diagnosed the second applicant as suffering from severe dyslexia. She recommended that consideration should be given to transferring him into an SLD school.
12/3/2021	The second applicant was reviewed by Ms. Timoney, who recommended that given the extent and severity of his dyslexic condition, it was recommended that he be offered a place in a reading unit (SLD class) where children with severe dyslexia could benefit from intensive support in a class with a greatly reduced pupil/teacher ratio.
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