The most common reason for a placing request to be refused is that the specified school is oversubscribed. In such cases, spare places (once catchment area pupils have been accepted) are allocated in accordance with the Council's policy, including any places which are being “reserved” for pupils who may move into the area.
However, there is no one ground of refusal which directly deals with schools being full. Instead, there are a number of separate grounds each of which relate in some way to school capacity, but in a variety of ways. To add to the confusion, there is no legal definition on how to calculate the capacity of a school in the first place. Parents are left to grapple with national and local guidance and policy documents. Further, the case law on minimum class sizes at lower primary stages is conflicting.
Parents have a right of appeal against a refusal of a placing request. An appeal – called a “reference” must be lodged with the education appeal committee no later than 28 days after the refusal.
It is important to note that if a parent lodges an appeal against the refusal of a placing request, then they are not allowed to lodge another placing request appeal for the next 12 months – although there are some exceptions to this rule. Parents should therefore think carefully before lodging a placing request appeal.
The education appeal committee is a body of (usually) 3, (sometimes) 5 or (almost never) 7 people, which is constituted by the education authority whose decision is under appeal. The members are ordinarily a mix of locally elected councillors and parent members, drawn from parent councils at other schools in the area.
An appeal against a refusal of a placing request must be granted unless the education appeal committee, Sheriff or Tribunal is satisfied both that there is a ground for refusal and that it is appropriate for the placing request to be refused. Otherwise, the appeal must be allowed, and the pupil placed in the specified school.
On appeal, it is for the education authority to prove that the grounds for refusal relied upon actually exist. Therefore, the education authority should be in a position to demonstrate that the capacity of the school has been calculated correctly, for example. If they cannot do this, then the appeal should be successful.
The education appeal committee also has a discretion to allow an appeal, even where a ground for refusal does apply, if it is appropriate to do so in all the circumstances.
A decision in favour of the parents is final, but there is a further right of appeal for the parents to the Sheriff Court within 28 days of the appeal committee's decision.
Cairn Legal are able to assist with any stage of your appeal against a placing request refusal. Please contact us on 0141 303 8401 or info@cairnlegal.co.uk
NB - Where the child in question has additional support needs, there are slightly different rules which apply, which are not dealt with in this post.
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