Board of Management of St. Molaga's School -v- Secretary General of the Dept. of Education and Science & Ors, [2009] IEHC 91 (2009)

Docket Number:2008 593 JR
Party Name:Board of Management of St. Molaga's School, Secretary General of the Dept. of Education and Science & Ors
Judge:Irvine J.
 
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THE HIGH COURT

JUDICIAL REVIEW 2008 593 JR

BETWEEN

BOARD OF MANAGEMENT OF ST. MOLAGA'S NATIONAL SCHOOLAPPLICANTAND

SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SCIENCE, KEVIN MEEHAN, ANN O'SULLIVAN AND PADDY HOGANRESPONDENTSAND

  1. AND B.NOTICE PARTIESJUDGMENT of Ms. Justice Irvine delivered on the 17th day of February, 2009

The within judicial review proceedings centre upon two decisions made by the second, third and fourth named respondents herein on 25th April, 2008. On that date the aforementioned respondents, in their capacity as members of an appeals committee established under s. 29 of the Education Act 1998, concluded that St. Molaga's National School ("St. Molaga's"), Balbriggan, Co. Dublin had the capacity to accept C and D the daughters of A and B as students and accordingly recommended to the first named respondent that they should be enrolled with immediate effect.

The Parties

The applicant in the within proceedings is the board of management of St. Molaga's. The board of management ("the Board") is a statutory board established pursuant to s. 14 of the Education Act 1998 ("the Act"). The Board comprises two nominees of the school's patron, the Catholic Archbishop of Dublin; the school principal, Mr. Bill O'Toole; a teachers representative; two parents' representatives; and two representatives of the wider community.

The second, third and fourth named respondents are members of an appeals committee established under s. 29 of the Act to hear appeals against certain decisions made by a board of management including a decision to refuse to enrol any particular student. That appeals committee had three members comprising its chairperson, Mr. Kevin Meehan a former principal of a post-primary school, Ms. Ann O'Sullivan a primary school inspector and Mr. Paddy Hogan also a retired principal of a post-primary school.

The notice parties, A and B are the parents of C and D who were refused enrolment by the Board of St. Molaga's in February, 2008 on the basis that the school had no capacity to accept them as students.

The first named respondent is the party to whom the appeals committee must report and who is charged with notifying the decision of the appeals committee to those concerned. Section 29 of the Act empowers the first named respondent to give such directions to the Board as appear to be expedient for the purposes of remedying any complaint upheld.

By order of Peart J. dated 26th May, 2008, the applicant was granted leave to apply for judicial review seeking to quash the decisions of the appeals committee and also the direction of the first named respondent dated 25th April, 2008, that C and D be enrolled as students in St. Molaga's. The statement grounding the application for judicial review was delivered on 23rd May, 2008 and the statement of opposition on 16th July, 2008. The proceedings were heard on affidavit and both parties delivered written submissions which have been fully considered by the Court.

The Legal Issues

The applicant seeks to quash the decision of the appeals committee on the following alternative bases, namely:-

(a) That the appeals committee in reaching its decision acted ultra vires in that it exceeded its jurisdiction under s. 29 of the Act in purporting to conduct the type of wide ranging investigation which it carried out.

(b) That if the appeals committee had the power to conduct the wide ranging inquiry which it carried out, that its decision should in any event be quashed by reason of the fact that:-

(i) it took into account matters which were irrelevant to the issue which it had to decide and/or

(ii) it failed to take into account in its considerations matters which were material to its decision and/or

(iii) its decision was irrational in all of the circumstances.

An order of certiorari is sought against the direction made by the first named respondent that C and D be enrolled as students in St Molaga's on the basis that if the appeals committee has acted ultra vires or if its decisions were null and void then it follows that the direction of the first named respondent made on the basis of such decisions must be quashed

The respondents deny that the appeals procedure provided for in s. 29 of the Act is in any way confined or constrained in the manner alleged by the applicants. The appeals committee further denies that it took into account matters which were immaterial to its considerations or failed to take into account matters which were material to its considerations. The appeals committee denies that its decisions were irrational as contended for by the applicant and all respondents deny that the applicant is entitled to the relief claimed.

The Facts

The facts in the present case are to be gleaned from the fulsome affidavits and exhibits filed by the parties. On behalf of the applicant, two affidavits were sworn by Catriona O'Reilly, the chairperson of the Board of St. Molaga's. The respondents filed two affidavits. The first of these was sworn by Mr. Peter Rafferty, an Assistant Principal Officer in the post-primary administration section of the Department of Education and Science ("the Department"). The second affidavit was sworn by Mr. Kevin Meehan, the chairperson of the appeals committee.

Because of the extensive nature of the challenge to the decision of the appeals committee, it is necessary to set out the facts which emerge from the aforementioned affidavits and exhibits in some detail.

St. Molaga's is a senior primary school with classes from third to sixth year inclusive. St. Molaga's is a recognised national school under the patronage of the Catholic Archbishop of Dublin and is situated in Balbriggan. From sometime late in the 1800s until 1987 it shared the same campus as a junior primary school, namely, St. Peter and Paul's Junior National School ("St. Peter and Paul's"). Children consequently transferred automatically from one school to the other. In 1987, St. Molaga's moved to a new site approximately 1km away from St. Peter and Paul's.

On 30th September, 1998, St. Molaga's had a total of 238 children enrolled. Ten years later, on 30th September, 2007, it had increased its number of students to a total of 457. The 30th September in any year is an important date in the educational calendar as it is the number of students in a recognised school on that date that determines the number of teachers who will be funded by the Department in the subsequent school year. Hence, for the school year 2007/2008 the number of teachers would have been determined by reference to the school's valid enrolment as of 30th September, 2006 as per Primary Circular 0020/2007. St. Molaga's had a total teaching staff of 24 including 16 mainstream teachers for the school year commencing September, 2007.

For many years prior to 2007, St. Molaga's had sought assistance from the Department to provide additional permanent accommodation for the school. Due to the fact that the school had doubled in size over the previous ten year period, a significant number of the classes within the school were being taught on a permanent basis in twelve prefabricated classrooms. It is not denied that for some nine years prior to March, 2007, the Board had lobbied parents, public representatives and Ministers in the hope of obtaining additional permanent accommodation. St. Molaga's had at all times advised the Department that it was anxious and willing to expand its school subject to obtaining additional permanent classrooms.

As a result of deteriorating conditions within the school, the perceived risks to the health and welfare of students and teachers alike and concerns regarding the ability of the school to deliver an appropriate standard of education to its students, the Board, according to the evidence, was forced as of March, 2007 to reflect upon the school's capacity and its admissions policy. On 5th March, 2007, the Board resolved that the school could no longer continue to expand without further permanent accommodation. It accordingly wrote to the Department by letter dated 6th March, 2007, wherein it summarised the more significant matters which had informed its decision that for the following four years it would have to confine enrolment in St. Molaga's to students who were leaving second class in St. Peter and Paul's. In particular, the letter referred to the fact that conditions in the school constituted a danger to staff and pupils alike. The letter advised the Department of the unhealthy environment provided by prefabricated classrooms, the lack of P.E. facilities, the shortage of storage facilities and ancillary rooms for other activities, the inadequacy of the kitchen and of a fire risk due to the strain on the electrical system generated by the prefabricated classrooms.

As a result of the aforementioned decision of the Board in September, 2007, St. Molaga's admitted only those children who had previously been pupils of St. Peter and Paul's. It admitted 120 students into its third year including two special needs students. In much of the documentation exhibited in these proceedings the special needs students are referred to as "S.N." students. At the same time St. Molaga's had 109 students in fourth year of whom 11 were special needs students, fifth year had 117 pupils, 7 of whom were special needs students and sixth year had 111 of whom 4 were special needs students.

The evidence established that St. Molaga's had an enrolment policy which, according to the notes exhibited to the respondents' affidavit, had been reviewed by the Board shortly prior to January, 2008. That policy, which was exhibited in Ms. O'Reilly's first affidavit at exhibit "A", set out the priority to be afforded to applicants applying for enrolment to St. Molaga's. The first category of students prioritised were those leaving second class in St. Peter and Paul's Junior School followed by brothers and sisters of children already in the school and thereafter Catholic children of the parish.

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