Fri 05 Oct 2018

Handling Challenges to the Refusal of Education Placing Requests

We have recently represented education authorities in a number of cases where disputes have arisen as a result of a refusal by the education authority to place a child in accordance with an education placing request. An education placing request is a request by a parent to an education authority asking for their child to be educated at a particular school for which the authority is responsible. 

There is a general duty under the Education (Scotland) Act 1980 ("the 1980 Act") for education authorities to place a child in accordance with a parent's placing request. However a number of exemptions (known as "statutory grounds of refusal") are specified within the 1980 Act which means that the duty to place the child in accordance with the placing request does not apply. In short, this means that the education authority can refuse the placing request. The onus is on the education authority to show that one or more of the statutory grounds exists.

One of the most common statutory grounds of refusal relates to a situation where complying with the request would place a particular burden on the school, for example, requiring the employment of an additional teacher. Another ground is where placing a child in accordance with the request is likely to be seriously detrimental to the educational wellbeing of the other pupils attending the school. This may arise where placing a child in accordance with the placing request would exceed the capacity at the school (which may have a knock on effect to the health and safety of the other pupils attending the school) or it may arise where placing the child in accordance with the placing request would require the school to extend or alter its accommodation. Other less common grounds include things such as the education normally provided at the school is not suited to the child or the authority has already required the child to discontinue attendance at the particular school (i.e. the child has been excluded from the school).

Before the parent has the right of appeal to a Sheriff, the local authority's decision to refuse the placing request must be referred to the appeal committee. The appeal committee can confirm or refuse the authority's decision.  If they confirm the authority's decision to refuse the placing request the parent then has a right of appeal to a Sheriff who has jurisdiction over the area where the school is situated. Before a Sheriff can confirm the education authority's decision to refuse the placing request, he/she must be satisfied that (1) one or more of the statutory grounds exists, and (2) that it is reasonable in all the circumstances to confirm the education authority's decision. This means that even if the Sheriff accepts that a statutory ground exists, the Sheriff can refuse to confirm their decision if he/she decides that it isn't reasonable in "all the circumstances" to do so. An "all the circumstances" argument is subjective and will be dependent on the individual facts and circumstances of each case. In our experience, "all the circumstances" arguments which relate to journey time to and from school (one of the most popular "all the circumstances" arguments) are regularly rejected. One Sheriff considered such a matter as "merely a matter of parental convenience" which failed to hold sufficient significance to make the case special.

As the population continues to grow, the pressure on education authority resources continues to mount. One of the effects being there are an increasing number of placing requests year on year with fewer available spaces.  Morton Fraser were instructed in 19 Placing Request Appeals during the month of July and August this year, almost of all of which were successfully defended.

In our experience of dealing with these cases, we found the Court was impressed, and more importantly persuaded that one or more of the statutory grounds existed if we could point to well documented policy decisions in respect of matters such as intake and overall capacity of the school. These are matters which education authorities will want to consider carefully as it will be pivotal in defending any appeals raised against them.

Please contact Nikki Hunter if you have any questions about how to respond to an appeal against a decision in respect of an education placing request.

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