What is Section 29?

Section 29 of the Education Act 1998 gives parents and students who have reached the age of 18 the right to appeal certain decisions made by a school’s board of management to the Secretary General of the Department of Education and Skills. This includes decisions to exclude, suspend and refuse enrolment.

Background

In a recent High Court case, Board of Management of Presentation College Athenry v Secretary General of the Department of Education and Skills and Others, the school challenged the decision of a section 29 appeals committee to uphold an appeal by parents on behalf of their son against a decision to refuse his enrolment in the school.

The school’s enrolment policy set a limit of 180 places. It provided that if the number of applications to enrol exceeded this stated limit, places would be offered in descending order of priority in accordance with six categories. The applicant, in this case, came within the sixth category: pupils of a number of specified feeder schools. The policy provided that random selection would be applied if there were more applicants than places available in a particular category.

After allocating places to students who were in the first five categories, seven places remained to be filled from the sixth category. A lottery was carried out, but the applicant was unsuccessful.

Appeals Committee Decision

The parents appealed against the decision to refuse enrolment. Their appeal was based on the fact that they had moved their son to one of the listed feeder schools in order to ensure that he would obtain a place in the school. The parents claimed that the former principal had given them assurances that their son would be guaranteed a place in the school if they moved him to a particular feeder school. They did so, but as there was no place available in sixth class, their son was forced to repeat fifth class.

The appeals committee found that the boy had been placed correctly in category six and that he had not been successful in the lottery. The appeals committee found that the parents had demonstrated a reasonable expectation that their son would be offered a place following conversation with the previous principal. It further found that the parents had relied on this and had made significant changes in their child’s education, moving him and his sister to another school.

The key issue to be determined in this case was whether:

  1. the appeals committee was entitled to take into account the personal circumstances of the boy and, in particular, the fact that his parents had relied on assurances from the former principal, or
  2. whether it was confined by the parameters of the school’s enrolment policy in conducting the appeal in the same manner as the board had been.

In her decision, Judge Ní Raifertaigh considered the High Court and Supreme Court judgments in the St Molaga’s case before considering the High Court judgments in the County Westmeath VEC, Lucan Educate Together, City of Waterford VEC and Scoil Lorcain cases. Judge Ní Raifertaigh found that it was clear from these authorities that an appeals committee is required to conduct a full appeal within the parameters of the school’s enrolment policy. It was determined that, although the committee was satisfied that the boy fell within category six and that random selection applied in accordance with the school’s policy, it had taken into account the interactions between the former school principal and the parents. Judge Ní Raifertaigh found that the enrolment policy of the school had not permitted such matters to be taken into account.

The High Court judgment was appealed by the Department of Education and Skills to the Court of Appeal. This appeal, however, was refused with the Court of Appeal affirming the High Court judgment of Judge Ní Raifertaigh.

Implications for Boards of Management

Some admissions policies include a provision which allows a Board of Management to exercise discretion and to offer places to applicants in “exceptional circumstances”. In practice, this allows a board of management to offer a place to an applicant whose application might otherwise be unsuccessful if the priority categories were applied. Boards of Management should be aware that if their enrolment policy allows a Board of Management discretion to offer places in exceptional circumstances, an appeals committee will have the same discretion when hearing an appeal. It is entirely possible, therefore, that an appeals committee may find that exceptional circumstances apply in a particular case where a Board of Management has decided they do not.

In this case, the school’s enrolment policy contained an “exceptional circumstances” provision although the parents had not sought to rely on this provision in their application. If they had, however, there may well have been a different outcome to the case.