Appeal by Edinburgh mother against refusal of placement request for S1 child refused by sheriff

About this case:

• Citation:
  [2024] SC EDIN 50
• Judgment:
  External link
• Court:
  Sheriff Court

The pursuer, N, had previously had an appeal heard by the City of Edinburgh Council’s Placing in Schools Committee but refused. She appealed again in terms of section 28F of the Education (Scotland) Act 1980, with the defender arguing that the refusal of the request was in line with its policy.

The case was heard by Sheriff Fergus Thomson in Edinburgh Sheriff Court, with the pursuer appearing as a party litigant and the defender represented by Clarke, solicitor.

Policy issues

In 2024, the pursuer’s child started S1 at School A. They reported instances of bullying involving several individuals, who were also involved in other reported incidents at the school. The pursuer, believing that her child’s education would suffer if they remained at School A, made a request to the defender for her child to be transferred to School B.

Evidence was heard that School B was already 9 pupils over its capacity, albeit 7 below the agreed intake limit for S1 pupils. In accordance with policies set by the education authority, a number of places were reserved for children who may move into the catchment area. Were the placing request here to be granted one of these places could not be retained, although three other schools in the area had available S1 places.

The pursuer made no submissions on whether any the grounds of refusal existed. Her principal submission was that that in all the circumstances it was inappropriate to confirm the education authority’s decision. For the defender it was submitted that it would be inappropriate, in considering the appeal, for the court to stray into and take into account matters which were properly policy issues for the defender.

It was further submitted for the defender that the pursuer’s wish in making the placing request was based primarily on it being more convenient that the child should attend School B. There were no circumstances specific to the facts of the case which rendered it inappropriate to confirm the education authority’s decision.

Test of appropriateness

In his decision, Sheriff Thomson began: “Dealing first with the requirements of section 28F(5)(a), I am satisfied that should the placing request be granted the result would be that one of the places reserved at school B for pupils likely to become resident in the catchment area could not be retained. The number of such places is a policy matter for the defender. The ground in section 28A (3A) exists. That is sufficient.”

However, he continued: “I consider that the ground set out in section 28A (3) (a) (vii) also exists. Following M v North Lanarkshire Council (2012), it is open to the defender to rely upon that ground despite capacity at the school having already been exceeded. In my view, this ground is also sufficient to cover the circumstances of the present case.”

Assessing whether in all the circumstances it is appropriate to confirm the education authority’s decision, the sheriff said: “The pursuer and her husband are concerned that AB should attend a school other than school A, given their understanding of the child’s experiences there and the impact on the child. That is, of course, entirely understandable. However, the court was advised that there are three schools other than school B, each a similar if slightly further distance away, where spaces are available, and where there is no reason to think that the issues experienced by the child at school A would arise.”

He concluded: “The pursuer and her husband candidly admitted in evidence that their reasons for wishing to send the child to school B, as opposed to any of these other schools, were primarily ones of convenience, and that they would prefer school B over these other options. The child is used to the area where school B is, the pursuer has another child at a school nearby and the alternative options would involve a more difficult school run. While I appreciate these sentiments, I do not consider that the circumstances are sufficient to meet the legal test of appropriateness I am required to apply.”

The sheriff therefore refused the appeal and confirmed the decision of the education authority.