Sheriffdom of Lothian and Borders at Haddington

 

 

 

 

Judgement of Sheriff Alan D Miller

 

in the summary applications by

 

KJD and SED

 

Pursuers

 

against

 

East Lothian Council

 

Defender

 

Court ref. no's. B293/08 and B369/08

 

 

 

 

Pursuer's solicitor: Mr. Scott, Campbell Smith W.S.

Defender's solicitor: Mr. Campbell, East Lothian Council

 

 

22nd August 2008

 

Introduction

 

1.     The pursuers Mr. and Mrs D are the parents of twin children, A and J, who are nearly five years old and are due to commence primary school this month. They also have a younger child, C, who is two years old. They live in Ferguson Drive, Musselburgh.

2.     In December 2007 the pursuers made a placing request to have the twins attend Stoneyhill Primary School in Musselburgh. The defenders refused the request and, in line with their established school catchment areas, allocated the twins places in Musselburgh Burgh Primary School. The pursuers appealed to the defenders' Education Appeal Committee. After a hearing on 28th May 2008, the committee confirmed the defenders' decision.

3.     The pursuers then raised summary applications under section 28F of the Education (Scotland) Act 1980 in order to appeal to the Sheriff against that decision. The two applications, one for each twin, were identical in substance and were conjoined for proof purposes. The applications were defended on the basis that placing the twins in Stoneyhill Primary would, firstly, make it necessary for the education authority to take an additional teacher into employment (section 28A(3)(a)(i); and, secondly, would prevent the defenders from retaining reserved places in Primary 1 at Stoneyhill for pupils likely to become resident in the school catchment area (section 28A(3A)). If I found that one or more of these grounds for refusal existed, the question of whether it would be appropriate in all the circumstances to confirm the defenders' decision would come into play and was also disputed.

4.     I heard evidence over 3 days from 19th to 21st August 2008 and undertook to give my decision the following day. By agreement, the defenders led at proof.

Facts

5.     Many of the relevant facts were undisputed. It was common ground that the pursuers' family live in the catchment area for Musselburgh Burgh Primary School, although Stoneyhill Primary is the closest school to their home. There are sufficient places for the twins in Primary 1 at the Burgh Primary. A small number of children from the pursuers' street attend the Burgh Primary; a more significant number attend Stoneyhill Primary.

6.     There are 24 children in the P1 class at Stoneyhill Primary. The Council had allocated 22 children places in the class, allowing them to keep 3 as reserved places. Two further children had been placed in the class as a result of appeal committee decisions made in or about May 2008. A number of parents had made unsuccessful placing requests for Stoneyhill Primary P1. The defenders had established a waiting list with 11 children on it, ranked in order of geographical proximity to the school as that had been a common factor in the placing requests. A and J were ninth and tenth on the list.

7.     The twins attended the nursery school at Stoneyhill Primary from November 2006 to June 2008. Mrs D regularly walked to and from nursery with them and C, by a route that was safe, well-lit and largely traffic-free. This took her about 20 minutes. She became involved in the school parents' association and got to know the school staff. A and J enjoyed nursery and, having initially relied mostly on each other, established friendships. Many of their friends from nursery or home have places at Stoneyhill Primary, and Mrs D knows many of the P1 parents. Although Mr. and Mrs D have two cars in the family, they are keen for their children to be able to walk safely to and from school. Mrs D will require to take C in a buggy while walking the twins to and from school.

8.     To travel from the pursuers' house to the Burgh Primary School involves either going by fairly busy roads to the west of the River Esk (route 1), or by a combination of footpath and road to the east of the river (route 2). Route 1 is about 1.5 miles and would take Mrs D and the children about 40 minutes. Route 2 is similar in length and time and includes a lengthy unlit section of riverside path, followed by a shorter section of unsurfaced path leading onto Inveresk Village Road.

9.     The Education (Lower Primary Class Sizes) (Scotland) Regulations 1999 established a maximum size for primary one-three classes of 30 pupils per qualified teacher. Certain pupils are excepted and do not count towards that maximum, including (but only for the first school year thereafter) a pupil placed by decision of an appeal committee or of the court. Further, in April 2007 the Scottish Executive issued Education Circular no. 1/2007 to local authorities. The Circular set out guidance that, from August 2007, primary 1 classes should have a maximum of 25 pupils, although excepted pupils in terms of the 1999 Regulations would not count towards this total. Under section 28A(1A) the defenders required to have regard to this guidance. The defenders have implemented it by ensuring that all P1 classes have a maximum size of 25 pupils per qualified teacher.

10. I heard evidence from 7 witnesses in total, which focused on certain disputed factual issues. The first disputed issue was whether the defenders had in fact adopted the terms of Circular 1/2007 as their policy. Fiona Brown, Principal Officer Inclusion and Equality and Maureen Jobson, Acting Head of Education, both gave evidence for the defenders. A committee report dated 6th March 2007 by Mrs Brown was produced. In effect, this sought the Education Committee's approval to reduce P1 class sizes to 25, in line with Circular 2007/1. Although the evidence on this point was less than compelling, on balance I was satisfied that the defenders' Education Committee had approved the policy, if only by a form of negative resolution process referred to as the Members' Library process. Mrs Jobson in particular spoke of her certainty as head of service that Committee members strongly supported the policy of limiting P1 classes to no more than 25 children, and that it was a good policy in the interests of children. She was clear that the defenders would have to employ an additional teacher at Stoneyhill Primary, at a gross salary cost of about £39,500, if the pursuers succeeded in this case. She seemed, however, uncertain about the meaning and effect of the exceptions carried forward from the 1999 Regulations, and did not know which class size limits were now reflected in teachers' terms and conditions.

11. The second issue concerned the effect on A and J of moving to a new and unfamiliar school. In her evidence, Mrs D expressed a potential risk that the twins would react by withdrawing into mutual reliance and thus isolating themselves from other children. Giving evidence for the defenders, Jenny Wilson, Principal Educational Psychologist acknowledged this as a possibility but noted that the twins had demonstrated a capacity to make friends at nursery. She felt there was no reason why they could not do so again, particularly with the benefit of parental encouragement and the support that would be available in the Burgh Primary as in any other school. On this point, I preferred her evidence and consider that any withdrawal would be unlikely to have serious repercussions.

12. The third issue concerned the suitability of the available routes for walking to and from the Burgh Primary School. Lengthy evidence was taken from 2 witnesses on this issue: Mr. Colin Baird, the defenders' Area Network Officer; and Mr. Paul Richardson, an independent road safety expert instructed and called by the pursuers. A considerable number of photographs were lodged as productions, as were reports by the 2 witnesses. Mr. and Mrs D also gave evidence on this issue.

13. Mr. Richardson's report drew on guidelines for assessment of walking routes to school, produced by the Local Authority Road Safety Officers' Association (LARSOA). Mr. Campbell attacked his reliance on these guidelines, given that they referred exclusively to English legislation and case law and were not up to date. I accepted Mr. Richardson's explanation, however, that they were the only national guidelines available and that several Scottish local authorities made use of them.

14. The defenders' Education Department had asked Mr. Baird to investigate walking routes from the pursuers' home to the Burgh Primary. He came up with the 2 suggested routes and considered both to be safe options with adequate footpaths and safe crossing points. His instructions, however, had been to assess routes for a parent accompanying one child. When Mr. Richardson reviewed the routes, he did so from the perspective of a parent accompanying twin children aged 4 or 5 and with a third child in a buggy. I accepted his contention that such a parent would require more footway space and more time to cross roads than a parent with only 1 child.

15. Mr. Richardson considered route 1 to be deficient in various respects for this purpose: the pavement was constricted to an unsafe degree at a bend on a busy road by encroaching vegetation from a derelict plot; on a further stretch of the same road, the pavement had been constricted by hedging, although this had been cut back during the school holidays; the opposite footway was often partially blocked by vehicles parked partly off the road; and at some points heavy traffic had no choice but to pass uncomfortably close to pedestrians. While I accepted his evidence on these points, I considered the only serious safety concern to be the first one - a matter that Mr. Baird acknowledged could readily be resolved by action by the defenders to cut back the encroaching vegetation.

16. Mr. Richardson also considered route 2 to be defective: a significant part of it followed an unlit riverside path, raising issues of personal safety; and the unsurfaced part would be difficult with a buggy. He was particularly concerned about the point where the route then came out onto a road, with a requirement to cross immediately. In his view an adult with 3 children would not have time to check the roadway and cross safely. Mr. Baird considered visibility at this point would be adequate if the adult stood in front of the child's buggy. I preferred Mr. Richardson's evidence here, which took proper account of the pursuers' circumstances.

17. Mr. D also gave evidence that he had tested out 2 alternative routes for coming off the riverside path to join the roadway towards the Burgh Primary: neither was at all suitable. I accepted his evidence.

18. In summary on this third disputed issue, then, I found that route 1 is less than ideal. It included one significant safety issue for a family such as the Devines, but which should be capable of ready resolution by the defenders. I considered, however, that route 2 could not realistically be suggested as a safe and suitable route for Mrs D to walk with the twins and C to and from school.

Submissions

19. For the defenders, Mr. Campbell referred to Dundee City Council Petitioners (reported at 1999 FamLR 13) and Smiles v City of Edinburgh Council 2006 SLT(Sh Ct) 6 in support of his contention that the court should respect the defenders' statutory policy-making powers and thus the terms of the defenders' policy reflecting the 2007 Circular. Mrs Jobson's judgement, in terms of that policy, was that an additional teacher would be required if the placing requests were now allowed. It was on that basis that I should confirm the education authority's decision. He did not now seek to rely on the reserved places ground.

20. On the question of appropriateness, to overturn the decision on the grounds of road safety would in effect be to re-write the catchment areas along routes 1 and 2. Some footways were less than ideal, but the safety issues were certainly not at the level of seriousness implicitly required by the terms of Lord Cameron of Lochbroom's judgement in the Dundee case. In any event, the pursuers had the option of using the car for at least part of the route; walking to school was a lifestyle choice.

21. If the defenders were ordered to place the children at Stoneyhill Primary, in terms of section 28F(6) of the 1980 Act they would then require to re-visit all the other unsuccessful placing requests for P1 at Stoneyhill, and to contact the parents. Further appeals might well ensue.

22. For the pursuers, Mr. Scott's primary position was that none of the section 28A grounds for refusal existed in the circumstances of this case. The undisputed legal maximum pupil numbers in a P1 class was 30, by virtue of the 1999 regulations. The 2007 Circular was guidance, and moreover still recognised the exceptions from the 1999 Regulations: thus, for the first year after a child was placed by virtue of an appeal committee or shrieval decision, that child would not count towards the 25 maximum established in the Circular. Placing A and J could not thus affect the defenders' duties under their policy which implemented the Circular, and by taking the class to 26 would not in fact affect the position under the higher limits applicable from P2 onwards.

23. The same argument applied to the reserved places ground. For the purposes of the P1 class size policy under the Circular, the defenders were entitled to ignore A and J and indeed the other 2 children placed by appeal committee decisions. That meant that the 3 reserved places which the defenders sought to protect in fact still existed. By the time these 4 children counted for the purposes of the Circular, they would be in P2 where the limit was 30; the 3 reserved places would thus still be available.

24. Mr. Scott's secondary position was that, even if a statutory ground for refusal existed, it would not be appropriate in all the circumstances to confirm the defenders' decision. The underlying concept driving the legislation was parental choice, and no unreasonable public expenditure would be incurred by acceding to the pursuers' wishes: section 28(1) of the 1980 Act. The children's interests would be better served by placement at Stoneyhill Primary. There were genuine concerns about road safety in walking to the Burgh Primary. It was not unreasonable for the pursuers to want to walk the children to school. The concept of assessing suitability of a route to school by reference to walking distance over the nearest available route was reflected in the 1980 Act at section 42(1).

Decision

25. By the conclusion of the proof hearing, the defenders were reliant solely on the additional teacher ground in their opposition to these applications. That ground is that "placing the child in the specified school would ... make it necessary for the authority to take an additional teacher into employment": 1980 Act, section 28A(3)(a) and (3)(a)(i).

26. There is no doubt that placing A and J in the P1 class at Stoneyhill Primary would bring the total number of children in the class to 26, of whom 4 would have been placed by virtue of appeal committee or shrieval decisions. Equally, however, the plain implication of the Schedule of excepted pupils, which appears in both the 1999 Regulations and the 2007 Circular, is that these 4 pupils would not count towards class size limits during the 2008-09 school session. On moving into P2 in August 2009, the applicable class size limit would be 30, as per the 1999 Regulations.

27. The committee report from which I was prepared to infer that the defenders had adopted as their policy the 25 limit for P1 was very brief. It did, however, acknowledge that Scottish Executive guidance (that is, Circular 1/2007) allowed for the exceptions as set out in the 1999 Regulations. The exceptions must thus form part of the defenders' policy.

28. Whatever the defenders might consider ideal or desirable, in terms of their policy it is thus clear that the defenders would not require to employ an additional teacher in 2008-09 if A and J were now placed in Stoneyhill Primary. Nor would they need to budget for employing an additional teacher in future years, since by the time the 4 excepted children counted towards the class size maximum, that maximum would be 30 rather than 25 and the class would contain only 26 pupils.

29. Given that the defenders no longer rely on the reserved places ground of refusal, it is unnecessary to consider it at any length. I will simply say that, as far as the point was debated before me, I found Mr. Scott's argument persuasive. It seems logical that the method of calculating class sizes applicable for the purposes of the section 28A(3)(a)(i) ground of refusal should also apply to the section 28(3A) ground.

30. The defenders do not seek to rely on any of the other grounds of refusal set out in section 28A of the 1980 Act. Accordingly, I am satisfied that none of the grounds of refusal specified in section 28A exist.

31. It is thus strictly unnecessary for me to consider the question of whether it is appropriate to confirm the defenders' decision. I have to say that I was not persuaded by the pursuers' arguments on this point. While there was some force in the points that Mr. Scott advanced, in my view the court must have regard both to the principle of parental choice and to the powers of the local authority to determine its own procedures and policies in order to ensure fairness in the allocation and use of its resources. If I had come to a different conclusion on the additional teacher ground for refusal, I would have required to take account of the financial implications that would flow from my decision for the defenders. Given in particular my view that the one serious safety concern relating to route 1 could be resolved quickly by action of the defenders, I would have required further persuasion that the test of appropriateness in all the circumstances had been met.

Conclusion

32. As I have found that none of the statutory grounds for refusing the pursuers' placing requests exist, I shall refuse to confirm the defenders' decision and shall require them to give effect to the placing requests to which the appeals relate.

33. Neither party sought an award of expenses. I shall therefore find no expenses due to or by either party.

 

 

 

Alan Douglas Miller

Sheriff of Lothian and Borders