Refusal of Placing Requests, Appeal Committee and Sheriff Court Appeals

We frequently act for parents seeking to appeal after their Placing Requests in respect of their children have been refused by the education authority for the area in which their school of choice is situated.  

If you have made a written request to the education authority to place your child within a particular school and they have made a decision refusing this, it is open to you to appeal.  

 Even if  the local authority was  satisfied that grounds of refusal in terms of the Education (Scotland) Act 1980 exist, for example,  that placing the child in the specified school would make it necessary for the authority to take an additional teacher into employment or that acceptance of the placing request would prevent the education authority retaining reserved places at the specified school,  you have the right to refer to the refusal to an Appeal Committee.    

 In the event that the Appeal Committee confirms the local authority’s decision to refuse the written placing request a further appeal lies to the Sheriff Court and is made by way of Summary Application.  The application must be lodged within 28 days of the date of the decision of the Committee and therefore strict time limits apply and late appeals are only exceptionally received.  We are frequently instructed at this stage of the process to assist with the framing technical legal documents required by the Court and ensuring that all the relevant evidence is before the Sheriff when the appeal is determined.  

 It is important to have the case fully prepared by a legal advisor, who will assist you in obtaining evidence and submit documentary productions to the court and will address matters raised by the Defender, the local authority,  in their Answers.  At the full hearing or “proof” the Sheriff will hear evidence from witnesses, before determining whether grounds of refusal exist and whether it is in all the circumstances appropriate to confirm the Education Authority’s decision.   

As well as leading evidence in support of the appeal from you and any witnesses, the Defender’s witnesses can be cross-examined and their evidence challenged in the course of the hearing. Often the Defender will be ordained by the Sheriff to lead at Proof as the onus is on the Local Authority to show that both grounds of refusal exist and that is reasonable in all circumstances to refuse the request.       

The appeal by Summary Application to the Sheriff is made in terms of section 28F of the Education (Scotland) Act 1980 ("the 1980 Act")   

1. Section 28F(5) of the 1980 Act provides as follows: 

"The sheriff may on an appeal under this section confirm the education authority's decision if he is satisfied-  

(a) that one or more of the grounds of refusal specified in section 28A(3) exists or exist; and  

(b) that, in all the circumstances, it is appropriate to do so  

but shall otherwise refuse to confirm their decision and shall, where he so refuses, require the authority to give effect to the placing request to which the appeal relates."  

This means that even in cases where it is accepted by the pursuer that the grounds of refusal relied upon by the education authority do exist, an appeal to the Sheriff Court can competently be made to challenge the appropriateness of the decision of the education authority.  

There is a large body of legal authorities in this area of law, which are often referred to in legal submissions at the appeal. Essentially, however, what is “in all the circumstances appropriate” is fact specific, and each case will turn very much on its own particular facts and circumstances.  

We have had considerable success in appeals lodged on behalf of clients against refusals of Placing Requests.  By exploring the impact of the decision on our clients, we ensure to   present comprehensive evidence to the court in order that the Sheriff will be able to consider the cumulative impact of all the various factors affecting the child and family arising from the refusal of the Placing Request.   

For example, if the child is likely to be much more settled and content attending the requested school where he or she has siblings or a known friendship group and will derive significant support from this, this is one of the key factors to highlight. If there is a likelihood the child may experience anxiety if removed from siblings or close friends, the argument in favour of granting the Placing Request is even stronger.   

It is also important to explore the logistical impact of the refusal. If children in the same sibling group are forced by the refusal   to attend different schools, the travel arrangements involved in this can often be impracticable. Where there is not a workable solution in practice, the court will require to consider carefully whether it was reasonable to refuse the Placing Request.  Even when there has been an offer by the defender to place all the children at a different school instead, this may not be feasible especially if this will have a potentially adverse impact on the welfare of another child of the family.  

The court will also consider any personal or health issues faced by parents and how these may be impacted by the refusal of the Placing Request. For example, if the parent with care responsible for school runs has health issues or a degree of fragility, the burden imposed by practical issues of having children at different schools some distance apart could well have an adverse impact on the parent’s health, with a consequential adverse impact on the children.  

The more relevant factors affecting the children or their family life that can be identified, and the better the evidence produced to substantiate them, the more likely it will be that the court will reach the conclusion that it is in all the circumstances not appropriate to confirm the education authority's decision to refuse the Placing Request. If the court refuses to confirm the decision, the Sheriff will then require the defender to give effect to the Placing Request.  

If you are considering making an appeal to the Education Authority’s Committee or to the Sheriff Court by way of a Summary Application, we would urge you to seek legal advice at the earliest stage.  Julia Donnelly, at Livingstone Brown has years of experience in this area of law, will be happy to assist you. She will give you clear and concise advice in relation to all aspects of your position including preparation and conduct of your Placing Request appeal. Please do not hesitate to arrange an appointment with her.