High Court: National school in enrolment policy row granted application for judicial review

About this case:

• Judgment:
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Stating that this was “manifestly unfair” to the other unsuccessful pupils, Mr Justice Coffey agreed that there was no effective policy for dealing with oversubscription, but that the correct course of action should have been to remit the matter to the Board with a recommendation to adopt an effective policy.

The Board of Management of St Marnock’s National School brought the application for judicial review, challenging the lawfulness of decisions made by the Secretary General of the Department of Education and Skills, and an Appeals Committee consisting of Jack Cleary, Marie Lynch, and Mary Dunne (the Respondents) in the course of an appeal brought by Miriam Campbell on behalf of her son pursuant to s. 29 of the Education Act 1998 against a refusal by the Board of Management to enrol him in the Speech and Language Class at St Marnock’s for the academic year commencing September 2017.

Oversubscription

Ms Campbell’s child, EC, was one of fourteen otherwise eligible pupils who were unsuccessful in their application for three available places in the 2017 SL Class.

The Appeals Committee heard and allowed a s. 29 appeal by Ms Campbell, primarily on the grounds that despite being required to do so by law, the Board 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 EC on the basis that he was eligible for selection.

The Appeals Committee made a recommendation to that effect to the Secretary General, 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 Secretary General gave a direction to the Board to allocate a place to EC.

High Court

The Board sought the following reliefs:

The gravamen of the Board’s complaint was that the determination of the Appeals Committee was made in breach of fair procedures and was irrational or unreasonable, and so was the Secretary General’s decision to accept this recommendation. Justice Coffey stated that the legal principles applicable to judicial review for unreasonableness were summarised in Meadows v. Minster for Justice 2 IR 701.

Under the Constitution every child in the State has a right to free publicly funded education; and the admission policies of individual schools are governed by the Education Act 1998.

The law does not prescribe what an admission policy of a school must contain; but it does require that the policy be published.

Justice Coffey stated that the hearing before the Appeals Committee was a full rehearing of EC’s application for enrolment in the SL Class, and was satisfied from the evidence that the determination of the Appeals Committee to uphold Ms Campbell’s “complaint” was made in accordance with the provisions of the Education Act 1998. Furthermore, Justice Coffey rejected the Board’s allegation that the hearing was not conducted in accordance with fair procedures.

Admission Policy

Having found that the School’s published Admission Policy did not set out any criteria by which the otherwise eligible pupils could be prioritised for the allocation of the available places in the SL Class, Justice Coffey stated that it was “wholly unreasonable and irrational to apply that Policy which it had found to be fundamentally deficient and inoperable” in order to determine and recommend to the Secretary General that EC should be given a place in the SL Class.

This was also “manifestly unfair to the other thirteen unsuccessful pupils who were no less eligible and also entitled to equality of access to the Class” under the Education Act 1998.

Section 29(7)(b) of the Education Act 1998 gives the Secretary General discretion to give: “such directions to the board as appear to the Secretary General (having regard to any recommendations made by the appeals committee) to be expedient for the purpose of remedying the matter which was the subject of the appeal…”

The s. 29 appeal was heard three weeks before the commencement of the 2017 SL Class; wherein the Appeals Committee “found the published Admission Policy to be inoperable for the purpose of selecting anyone at all”.

The matter to be remedied was clearly the fact that there was no effective policy that could be interpreted and applied to the selection of otherwise eligible pupils for the Class in the event of oversubscription – as such, the Appeals Committee should have remitted the matter to the Board with a recommendation to adopt an effective Policy and rerun the selection process prior to the commencement of the academic year.

It would then have been for the Secretary General to give “expedient” directions to the Board for the purpose of remedying “the matter”.

Granting the reliefs sought, Justice Coffey held that the matter should be remitted back to the Secretary General for a further hearing, before a newly constituted Appeals Committee (pursuant to s. 29 of the Education Act 1998).