King v East Ayrshire Council
| Jurisdiction | Scotland |
| Judgment Date | 17 July 1997 |
| Docket Number | No 19 |
| Date | 17 July 1997 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lady Cosgrove
Education—Duties of education authority—Closure of primary school against parents' wishes—Whether consent of Secretary of State required—Meaning of pupil capacity'—Education (Scotland) Act 1980 (cap 44), sec 22B(1)1—Education (Publication and Consultation Etc) (Scotland) Regulations 1981 (SI 1981/1558), sched 2, para (c)1
Practice—Pleadings—Mora, taciturnity and acquiescence—Whether petitioner acquiesced in closure of school
Section 22B of the Education (Scotland) Act 1980 enacts that: “(1) An education authority shall submit to the Secretary of State for his consent any proposal of theirs of a prescribed kind and shall not implement such a proposal without his consent. (2) In this section “prescribed” means prescribed for the purposes of this section by the Secretary of State by regulations and the Secretary of State may prescribe different kinds of proposals in relation to different education authorities.' Regulation 9 of the Education (Publication and Consultation Etc) (Scotland) Regulations 1981 provides that for the purposes of sec 22B the kinds of proposals which an education authority may not implement without the consent of the Secretary of State shall be the kinds of proposals specified in sched 2. Schedule 2, as amended, includes among the kinds of proposals specified: “(c) Proposals to discontinue any school or any stage of school education in any school or to change the site of any school or to vary the delineated area of any school, where the number of pupils in attendance at any such school is greater than 80 per cent of that school's pupil capacity, and in the calculation of that pupil capacity regard shall be had to—(i) the assessment of capacity on which the education authority have based their proposal; (ii) the maximum number of pupils in attendance at the school in any one year in the period of 10 years preceding the proposal; and (iii) the curriculum of the school.”
An education authority closed a school on 26 June 1996. On 23 August 1996 the mother of children who had attended at that school brought a petition for judicial review of the authority's decision. At first hearing the petitioner sought declarator that the authority were obliged to submit their proposal to discontinue the school to the Secretary of State for his consent in terms of the relevant legislation and also an order under sec 45(b) of the Court of Session Act 1988 ordaining the authority to submit their proposal to the Secretary of State. The authority pled, inter alia, that the petition was incompetent as the authority's decision had long since been implemented and stood unless it was reduced and that the time span between the closure and presentation of the petition meant that the petitioner was barred from challenging the decision by mora, taciturnity and acquiescence. In the ascertainment of whether the pupil capacity exceeded 80 per cent the authority relied upon a circular which explained that the capacity of each school required to be defined for various purposes, among which were requests for children to be placed in a school. The circular went on to outline the main factors which had to be considered in calculating the capacity of schools and then distinguished between “planning capacity” and “working capacity” The circular thereafter stated that it was planning capacity which was to be used for the application of the 80 per cent rule. The petitioner argued that, on a proper interpretation of sched 2, para (c) of the regulations, “pupil capacity” was to be equated with “working capacity”
and not “planning capacity” which would render the figure of pupils in attendance at the school in excess of the 80 per cent required for the decision on closure to be referred to the Secretary of State in terms of sec 22B(1) of the 1980 Act and that, since the authority had used the school's attendance figures over the previous 10 years in the wrong way, in comparing attendance with capacity rather than calculating capacity as required by sched 2, para (c), the decision fell to be reduced. The Lord Ordinary (Lady Cosgrove) repelled the authority's plea of mora, taciturnity and acquiescence on the basis that the authority's decision was implemented within only 18 working days and the petitioner, who was without resources, did not behave as if she had acquiesced in the decision. Her Ladyship thereafter, however, dismissed the petition on its merits. The petitioner reclaimed and the authority cross-reclaimed.Held (aff judgment of Lady Cosgrove in part) (1) that the petitioner was not an isolated figure but was one of a number of parents trying to prevent the permanent closure of the school and her opposition to the closure, in tandem with those other parents, was well known to the authority and the 80 per cent rule played a prominent part in the parents' objections and, although the petitioner's failure to write to the authority between 30 May 1996, when the authority intimated that the school was to be closed, and 26 June 1996, when closure was effected, might have given rise to an inference of acquiescence on the part of a body with resources and experience, in the circumstances the petitioner's delay did not preclude the raising of the petition; (2) that the Lord Ordinary had erred in her approach to “pupil capacity” in that she approached the matter on the basis that the regulations prescribed in the kinds of cases which were to be referred to the Secretary of State were concerned with strategic planning purposes but it was not clear that the regulations were so concerned with long-term rather than current capacity; (3) that, although Parliament had left the term “pupil capacity” undefined, it had given an indication of certain factors to which an education authority were to “have regard” in calculating a school's capacity for the purposes of the 80 per cent rule and, while Parliament directed attention to those factors, the authority were left free to decide for themselves what weight, if any, they wished to attach to them in any particular case; and (4) that the fatal objection to the petitioner's approach came with the second factor to which the education authority had to have regard, being the maximum number of pupils in attendance in any one year in the period of 10 years preceding the proposal, for the fact that in calculating the “pupil capacity” of the school the authority required to have regard to its historic attendance figures showed conclusively that a school's “pupil capacity” for those purposes was not synonymous with its “working capacity” in terms of the circular; and reclaiming motion and cross-reclaiming motion refused.
Opinion that, in any event, although judicial review was a flexible procedure and the court could take account of new matters and grant different remedies from those which were originally sought, in deciding whether to grant a remedy on a different basis, the court had not to lose sight of the wider interest in good administration and the fact that the argument based upon the authority's erroneous approach to the calculation of “pupil capacity” was first presented 10 months after proceedings began and over a year after the school was closed justified another reason for not reducing the decision.
Mrs Alyson Catherine Ann King presented a petition under the judicial review procedure against East Ayrshire Council in respect of a decision made by them to discontinue St Paul's Primary School, Hurlford, Ayrshire and for an order in terms of sec 45(b) of the Court of Session Act 1988 ordaining them to submit their proposal to the Secretary of State.
The council lodged answers and pled, inter alia, mora,taciturnity and acquiescence.
The petition and answers called before the Lord Ordinary (Lady Cosgrove) for a first hearing.
At advising, on 6 March 1997, her Ladyship repelled the respondents' plea of mora, taciturnity and acquiescence and quoad ultra dismissed the petition.
The petitioner reclaimed and the respondents cross-reclaimed.
Cases referred to
Hanlon v Traffic Commissioners 1988 SLT 802
London & Clydeside Estates Ltd v Aberdeen District CouncilSC 1980 SC (HL) 1
Malloch v Aberdeen CorporationSC 1971 SC (HL) 85
O'Reilly v MackmanELR [1983] 2 AC 237
R v CD [1976] 1 NZLR 436
Simpson v Corporation of the City of EdinburghSC 1960 SC 313
The cause called before the First Division, comprising the Lord President (Rodger), Lord Sutherland and Lord Macfadyen for a hearing on the summar roll.
At advising, on 17 July 1997, the opinion of the court was delivered by the Lord President (Rodger).
Opinion of the Court—On 26 June 1996 the respondents, East Ayrshire Council, closed St Paul's Primary School in Hurlford. St Paul's was a denominational school serving the Roman Catholic community in the area. Among the children who attended St Paul's were David and Sarah King. On 23 August their mother, Mrs Alyson King, commenced the present proceedings for judicial review of the respondents' decision. At the first hearing the petitioner sought a declarator that the respondents were obliged to submit their proposal to discontinue St Paul's to the Secretary of State for his consent and also an order under sec 45(b) of the Court of Session Act 1988 ordaining the respondents to submit their proposal to the Secretary of State. The Lord Ordinary repelled the respondents' preliminary plea of mora, sustained the fifth plea-in-law for the respondents, repelled the first plea-in-law for the petitioner and dismissed the petition. The petitioner reclaimed.
The issue on which the whole dispute turns is whether, once they had adopted the proposal to discontinue St Paul's, the respondents were obliged to refer the proposal to the Secretary of State for his consent. Section 22B of the Education (Scotland) Act 1980 provides: “(1) An education authority shall submit to the Secretary of State for his consent any proposal of...
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