IPPN

Published: 04 May 2009

Source: Irish Times

Board of management of St Molaga's School -v- the secretary general of the Department Education and Science. High Court Judgment was delivered by Ms Justice Mary Irvine on February 17th, 2009.

Judgment

An appeals committee, set up under S 29 of the 1998 Education Act, acted ultra vires its powers in overturning a decision of the board of management of St Molaga's national school to refuse to enrol two girls on the grounds that it lacked the capacity to accommodate them. Even if it had not, the decision should be quashed on the basis that it either failed to consider matters it should have, or it gave consideration to irrelevant matters. Further, its decision was not supported by any credible evidence and was irrational.

Background

The case arose from a decision of St Molaga's school in Balbriggan to refuse to enrol two girls into third and fourth class respectively in February 2008. This followed the refusal of the board of management to accept 41 other pupils earlier that school year, on the grounds that the school lacked the capacity for them.

The parents of the girls, notice parties in this application, appealed that decision to a committee. Such a committee can be set up under section 29 of the 1998 Education Act to hear an appeal against a decision not to enrol a student. That committee reports to the Department of Education.

St Molaga's is a Catholic school in Balbriggan catering for pupils from third to sixth class and run by a board of management representing the patron, staff, parents and the wider community.

For almost 100 years until 1987, it shared a campus with St Peter and Paul's junior primary school, which was a feeder school for St Molaga's. In 1987 it moved to a new site about a kilometre away.

Between 1997 and 2007, St Molaga's almost doubled in size, to 457 pupils. For many years it had been seeking assistance from the Department of Education to provide additional permanent accommodation. In September 2007 it was using 12 prefabricated classrooms.

In March 2007 it considered the deteriorating physical conditions in the school and their implications for the health and safety of staff and pupils and the educational welfare of the pupils.

Accordingly, the board decided it would have to confine enrolment to students who were leaving second class in St Peter and Paul's school.

It advised the department of its decision, explaining that conditions in the school were a danger to pupils and staff alike.

Its enrolment policy gave priority to the pupils leaving St Peter and Paul's, followed by those who already had siblings in the school.

The family in this case moved to Balbriggan knowing that they would have difficulties getting their two daughters into local schools. They sought places in St Molaga's in February 2008, on the basis that it was a Catholic school and the one closest to their home. They were told it was full. It had already rejected 41 other applications since September 2007.

Among the reasons outlined were the fact that the school already had 457 pupils, nine more than the number that would have entitled it to another teacher, but it had not sought another teacher because it did not have a classroom he or she could teach in; the physical conditions of the school were not satisfactory for the education of students; there were health and safety issues as a result of the overloading of the ESB supply in the prefabricated classrooms; it already had 25 more pupils than was thought desirable by the department, according to its own circular, and the school had applied its enrolment policy, drawn up the previous March, to deal with these problems.

The families appealed the decision to a committee set up to hear it. This committee overturned the decision of the board of management, on the grounds that the school had capacity for the two additional pupils.

They gave reasons including that this was the choice of the parents and the one closest to their home; the expressed willingness of St Molaga's to facilitate all pupils if it had enough permanent accommodation, and its implementation of a departmental circular concerning the integration of pupils from the dyslexia unit.

The school challenged this decision by judicial review, seeking the quashing of the decision as ultra vires in that the committee exceeded its jurisdiction; that it took into account matters that were irrelevant; that it failed to take into account matters that were material; and that its decision was irrational in all the circumstances.

Decision

Ms Justice Irvine examined the school's enrolment policy and section 29 of the 1998 Act in order to establish the jurisdiction of the committee set up under it. The respondents had claimed in their affidavits that the appeals procedure provided for in section 29 of the Act was not in any way confined or constrained in the manner alleged by the school, which had argued that an appeal was limited to a review of the lawfulness of the decision to refuse enrolment.

Ms Justice Irvine said that a decision made as to a school's capacity "is a sophisticated decision" which must involve the consideration of a wide range of issues, including the health and safety of all in the school, the school's obligations as an employer, its obligations regarding the standard of education, and the requirements of the department.

If the court were to accept the respondent's contention that the committee had wide powers to overturn such a decision, it "would make it very difficult for a board of management to plan with any degree of certainty for the school's future", the judge said.

She said the interpretation of section 29 should be made in the context of the Act as a whole and the relationship between the State and national schools.

She cited the Supreme Court decision in O'Keeffe -v- Hickey, where the State had argued that it was excluded from the running of the school and that that function had been conferred on the religious authorities by long-standing legal arrangements. The Supreme Court had found that the Minister and the State authorities were distanced from the management of the school in question in this case.

The 1998 Act did not alter these arrangements and there was nothing in section 29 to suggest that any committee set up under it could either make or reverse management decisions lawfully made.

The legislation, when taken as a whole, suggested that it was solely the right of the board of management to make all management decisions, including a decision as to the school's capacity.

Ms Justice Irvine rejected the contention that section 29 provided for a broad and flexible remedy, enabling the committee to substitute its decision for that of the board, when lawfully made.

It was far more likely that the legislature intended this section of the Act to provide for an appeals procedure for parents who might complain about the lawfulness of the decision.

The committee had acted ultra vires in substituting its opinion for that of the board of management.

In the event the court was wrong on this, she considered whether the committee had regard to all the material considerations, and whether it had regard to considerations which were irrelevant.

"The desire of the notice parties to send their children to St Molaga's or the fact that it was the school nearest to their family home were not matters which should have engaged the committee. Either the school had the capacity to accept them or it did not," she said.

The committee had also discounted special needs students in calculating the numbers of pupils in each year, she said, contrary to the department's own circular on how school numbers should be calculated, making the classes appear smaller.

The committee had cited the siblings rule in support of its decision, notwithstanding the fact that neither child was yet enrolled in the school.

It also cited the "higher than average" academic ability of the girls, which was impermissible, as using this as a basis for enrolment policy could be invidious and/or discriminatory.

For all these reasons, the decision of the appeals committee should be quashed as based on considerations which were irrelevant. In relation to relevant considerations, the committee "appeared to avoid considering issues which had been material to the board's decision as to the school's capacity".

Thus the decision of the committee was irrational and should, for all these reasons, be quashed.