Placing Requests - Current Issues and Developments

Posted On: 03 June 2009

Author: Janys M Scott QC

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 MURRAY STABLE
and
LEGAL SERVICES AGENCY

SEMINAR ON EDUCATION LAW
1 June 2009


PLACING REQUESTS – CURRENT ISSUES AND DEVELOPMENTS

What does an education authority do if it has more pupils for a particular school than places at the school?  It’s an old question, but in the current climate it is being posed in some new ways.  It is linked to the perennial dilemma about resources.  That issue also arises acutely in relation to placing requests for children with additional support needs.  Education is never far from the political agenda, but there is a worrying gap between the expectations of politicians in the Scottish Parliament and the reality for education authorities and parents when it comes to placing request.

Placing requests
For those unfamiliar with the structure of the law, this is a thumbnail sketch of the basic position.  The Education (Scotland) Act 1980 was amended in 1981 to give parents dissatisfied with the school at which their child was placed by the education authority the right to make a placing request for a school of the parents’ choice.  The education authority are obliged to accede to the request, unless one or more of a number of grounds for refusal are present .  There are eleven grounds on which a request may be refused, plus a provision for treating certain places as reserved.  The eleven grounds are:
“(a) if placing the child in the specified school would—
(i) make it necessary for the authority to take an additional teacher into employment;
(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school;
(iii) be seriously detrimental to the continuity of the child’s education;
(iv) be likely to be seriously detrimental to order and discipline in the school; 
(v) be likely to be seriously detrimental to the educational well-being of pupils attending the school;
(vi) assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at that school;
(vii) though neither of the tests set out in sub-paragraphs (i) and (ii) above is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers;
(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child;
(c) if the education authority have already required the child to discontinue his attendance at the specified school;
(d) if, where the specified school is a special school, the child does not have additional support needs requiring the education or special facilities normally provided at that school; or
(e) if the specified school is a single sex school (within the meaning given to that expression by section 26 of the Sex Discrimination Act 1975) and the child is not of the sex admitted or taken (under that section) to be admitted to the school”
 
Education authorities have a discretion to place the pupil at the school specified in the request, despite the existence of a ground for refusal. If they refuse, then the parent may appeal to an appeal committee. If the appeal committee refuses the appeal, then there is a further appeal to the sheriff, whose decision is final  (subject to judicial review by the Court of Session).  The right to appeal is the right of the parent, not the child, so any application for legal aid must be based on the means of the parent. Both the appeal committee and the sheriff are obliged to apply a two-stage test.  They cannot confirm the decision of the education authority unless satisfied that one or more of the grounds of refusal exists or exist, at the time of their determination.  They must also be satisfied that it is in all the circumstances appropriate to confirm the authority’s decision.

There are similar provisions which apply to pupils with additional support needs.  These are found in the Education (Additional Support for Learning) (Scotland) Act 2004 .  If a child has a co-ordinated support plan (“CSP”), or one is in prospect, then refusal of a placing request must be referred to the Additional Support Needs Tribunal (ASNT) .  

Education authority arrangements and guidelines for admitting children to schools
The current structure of the law imposes a duty on education authorities to secure for their area adequate and efficient provision of school education .  They have a duty to provide sufficient accommodation.  Schools have to be maintained and equipped .  As the curriculum changes, new facilities are required.  All this means planning.  As populations change, changes are required in schools.  Schools are built, schools are closed, schools merge.  On top of this there are political imperatives to reduce class sizes (of which more later). 

From the perspective of the individual child the education authority are obliged to have, and to publish, their arrangements for placing children in schools under their management.  The scheme established by the Education (Scotland) Act 1980 assumes that an individual child will be allocated a place in terms of the general arrangements, the child’s parent will be informed, and can then decide whether to accept the place, or to make a placing request for the child to attend school somewhere else .  Authorities are required to formulate guidelines that they will apply if there are more placing requests for a particular school then places available. Those guidelines too require to be published.  Furthermore, the arrangements and the guidelines cannot be changed without a process of public consultation . 

So what happens if there are more children entitled to a place under the council’s general arrangements than there are places? 

(Continued.  For full paper please click on the link at the top of the page.)