Grounds of appeal
In appeals under both pieces of legislation, one of the most common statutory grounds of refusal relates to a situation where complying with the request would place a particular burden on the school, for example, requiring the employment of an additional teacher. Another ground is where placing a child in accordance with the request is likely to be seriously detrimental to the educational wellbeing of the other pupils attending the school. This may arise where placing a child in accordance with the placing request would exceed the capacity at the school (which may have a knock on effect to the health and safety of the other pupils attending the school) or it may arise where placing the child in accordance with the placing request would require the school to extend or alter its accommodation. Other less common grounds include things such as the education normally provided at the school is not suited to the child or the authority has already required the child to discontinue attendance at the particular school (i.e. the child has been excluded from the school).
How the decision-maker's approach appeals
Before the parent has the right of appeal to a Sheriff, the local authority's decision to refuse the placing request must be referred to the appeal committee. The appeal committee can confirm or refuse the authority's decision. If they confirm the authority's decision to refuse the placing request the parent then has a right of appeal to a Sheriff who has jurisdiction over the area where the school is situated. Before a Sheriff can confirm the education authority's decision to refuse the placing request, he/she must be satisfied that (1) one or more of the statutory grounds exists, and (2) that it is reasonable in all the circumstances to confirm the education authority's decision. This means that even if the Sheriff accepts that a statutory ground exists, the Sheriff can refuse to confirm their decision if he/she decides that it isn't reasonable in "all the circumstances" to do so. An "all the circumstances" argument is subjective and will be dependent on the individual facts and circumstances of each case. In our experience, "all the circumstances" arguments which relate to journey time to and from school (one of the most popular "all the circumstances" arguments) are regularly rejected. One Sheriff considered such a matter as "merely a matter of parental convenience" which failed to hold sufficient significance to make the case special.
Appeals dealing with additional support needs can also be considered by the Health and Education Chamber of the First-tier Tribunal for Scotland, as an alternative to a Sheriff.
Increase in volume of appeals
As the population continues to grow, the pressure on education authority resources continues to mount. One of the effects being there are an increasing number of placing requests year on year with fewer available spaces. According to the Scottish Government's annual pupil census in 2023, 37% of all pupils had an ASN. This was an increase from 34.2% of pupils in 2022.
Our experience of appeals
We have found the Court was impressed, and more importantly persuaded, that one or more of the statutory grounds existed if we could point to well documented policy decisions in respect of matters such as intake and overall capacity of the school. These are matters which education authorities will want to consider carefully as it will be pivotal in defending any appeals raised against them. Morton Fraser MacRoberts has successfully defended almost all of the placing appeals in which it has been instructed before both the Sheriff and the First-tier Tribunal for Scotland.
