Supreme Court allows appeal holding appeals committee has full hearing jurisdiction under s.29 of the Act.

THE SUPREME COURT

[Appeal No: 234/2009]

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Finnegan J.

Between/

Board of Management of St. Molaga's National School

Applicant/Respondent

and

The Secretary General of the Department of Education and Science, and Kevin Meehan, Máire Ní Mhairtín and Paddy Hogan

Respondents/Appellants

and

A. and B.

Notice Parties

Judgment delivered the 23rd day of November, 2010 by Denham J.

1. This appeal raises a net point of statutory interpretation. It is a preliminary issue.

2. The board of management of St. Molaga's National School, the applicant/respondent, referred to in this judgment as "the board of

management", brought judicial review proceedings in the High Court. The Secretary General of the Department of Education and

Science is the first named respondent/appellant and is referred to as "the Secretary General". Kevin Meehan, Máire Ní Mhairtín and

Paddy Hogan, the second to fourth named respondents/appellants, were members of the appeals committee, and are referred to as

"the appeals committee". The respondents/appellants are referred to collectively as "the appellants". A. and B., the notice parties, are

the parents who sought to enrol their children in St. Molaga's National School, and are referred to as "the parents".

3. In summary, the facts of this case are that in about February, 2008 the parents applied for places in St. Molaga's National School

for their two children who were 10 and 9 years of age at that time. The parents had recently moved to Balbriggan. In response to the

application the parents were told verbally that the school was full and that no more pupils were being accepted. The refusal was

confirmed in writing on the 6th February, 2008. In that written confirmation it was stated that the school was full.

4. St. Molaga's National School is a senior primary school with 3rd to 6th classes only. It has a longstanding relationship with St. Peter

and St. Paul's School which caters for children to 2nd class only. The published enrolment policy of St. Molaga's National School is to

give priority to pupils entering 3rd class having completed 2nd class in St. Peter and St. Paul's School, then to siblings of children

already in the school, then to catholic children of the parish, then to catholic children outside the parish, then to non-catholic

children of the parish, and finally to non-catholic children from outside the parish. There is no formal "transfer" policy to cater for

children seeking to enter the school other than new entrants in 3rd class. In practice it appears that the school has decided to

accept all entrants from 2nd class in St. Peter and St Paul's School, and appears to have decided to take no other entrants.

5. The board of management refused to enrol the two daughters of the parents. The reason they gave was that the school was full.

The parents appealed those decisions to the appeals committee. The appeals committee allowed the appeal. The board of

management brought judicial review proceedings of the decisions of the appeals committee. The High Court (Irvine J.) on the 17th

February, 2009 allowed the appeal and made orders of certiorari of the decision of the appeals committee. The appeals committee has

appealed to this Court against the judgment and order of the High Court quashing the decisions of the appeals committee.

Preliminary Issue

6. The Court determined that it would consider a preliminary issue, being the interpretation of s.29 of the Education Act, 1998,

hereinafter referred to as "the Act of 1998". This may also be described as interpreting the jurisdiction of the appeals committee when

hearing an appeal pursuant to s.29 of the Act of 1998.

The High Court

7. The learned High Court Judge accepted the board of management's submission that a s.29 appeal is limited in its scope. The

learned High Court Judge summarised her conclusion as follows:-

"The board of management of St. Molaga’s had been trying for a period of nine years prior to 2007 to continue expanding

its school in the face of a lack of resources and in particular, permanent physical accommodation. It had doubled its

number of students in the ten years prior to 2007 and with regret in March 2007, its board of management decided that

the school was full to capacity and that it could no longer justify trying to expand its school by the use of further

prefabricated buildings having regard to the standard of education it hoped to provide, the welfare of students and

teachers alike and the suitability of the accommodation within the school for the proper provision of education.

Having regard to the school’s special relationship with St. Peter and Paul’s Junior School, with whom it had been associated for well in

excess of 100 years and which was in effect its feeder school, it decided to implement a policy whereby it would take in only students

from St. Peter and Paul’s for a period of four years in the hope that it might thereby be in a position to provide for its pupils an

acceptable standard of education in an environment which provided adequately for the welfare of pupils and teachers alike.

The board’s decision was made in March, 2007 and was notified to the Department in writing. Further, in keeping with the said

decision, the school implemented its altered policy with effect from September, 2007 as a result of which by February, 2008, being

the time at which the notice parties applied to have their children enrolled in the school, St. Molaga’s had rejected applications for

enrolment from approximately 41 students. At that time, every class in the school had in excess of 27 pupils including special needs

children and the school had not been in a position to keep its average size to that which the Department in Circular 0020/2007 had

asked the school to “ensure” that it would not exceed. As of the date of its refusal to enrol C and D, the school exceeded the

guidance from the Department by 25 students. Further, St. Molaga’s had 9 students in excess of the number that would have justified

the appointment of a 17th teacher but as it had no spare classroom it was futile to seek to make such an appointment. Accordingly,

the school was operating on a lesser number of teachers than was thought acceptable. It had also had the experience in previous

years of trying to deliver education to a larger number of students and had found that the school was physically unable to safely or

satisfactorily accommodate such numbers. With such numbers the Board had concluded that it could not comply with its obligations

to deliver a standard of education appropriate to the needs of its students and was concerned that by trying to continue to educate

such numbers that it was jeopardising the physical and mental welfare of both students and teachers alike. Against such a backdrop

the school refused the enrolment of some 41 children who had applied for a place in St. Molaga’s for the year 2007/2008 prior to

refusing similar applications by the children of the notice parties."

8. The learned High Court Judge considered the Act of 1998. The role of the State, the patron, the board of management and the

appeals committee were analysed. The learned High Court Judge held:-

" The Court has not detected any statutory provisions which might encourage it to the view that the legislature intended

that the Department or any committee established under the Act would be afforded the right to either make or reverse

management decisions lawfully made."

The Court continued later:-

"Of further assistance to the Court in endeavouring to assess the extent of the power vested in a s. 29 appeals

committee is to look at the problem that the State was seeking to address in enacting that provision. The problem which

became the subject matter of the appeal in the present case was the acute lack of school places for the rapidly

expanding population in the Balbriggan area… The Court concludes that it was never intended that the s. 29 appeals

committee would involve itself in making decisions which were destined to find places for students in local schools. This is

a problem which is addressed by s. 27 of the Education (Welfare) Act 2000. Under that legislation the National Education

Welfare Board was established and charged with making all reasonable efforts to find a school place for a child refused

enrolment in another recognised school."

9. The learned trial judge inferred the intent of s.29. She stated:-

"The legislation when taken as a whole is much more consistent with the inference that it is solely the right of the board

of management, who runs the school on behalf of the patron, to make all management decisions including a decision as to

the school’s capacity in terms of the numbers of children which it can educate at any given time."

10. The learned High Court Judge considered ss.9, 14 and 15 of the Act.

11. The High Court concluded:-

"For the aforementioned reasons, I reject the [appeals committee's] submission that s. 29 provides a broad and flexible

remedy which allows the appeals committee substitute its own judgment on a management issue such as the capacity of

a school for that of the Board itself. I believe it is far more likely that what the legislature intended to provide in s. 29 of

the Act was something akin to a professional regulator who would operate an appeals procedure that was transparent and

accessible to parents of children who were refused enrolment where they might complain about the lawfulness of that

decision. In this respect, the Court takes some comfort from the use of the word “complaint” in s. 29(6) of the Act.

Accordingly, I conclude that the substantive power conferred by s. 29 is limited to providing a student who is refused

enrolment with the type of review referred to above. In purporting to substitute its opinion for that of the board of

management as to the school’s capacity, I conclude that the committee acted ultra vires the substantive powers

conferred upon it by s. 29 of the Act of 1998."

Grounds of Appeal

12. The appeals committee filed a notice of appeal dated the 9th day of June, 2009. The grounds relevant to this preliminary issue are

as follows:-

(i) That the High Court erred in law and in fact in holding that the appeals committee acted ultra vires the powers

conferred on it by section 29 of the Education Act 1998.

(ii) That the High Court erred in law and in fact in holding that the substantive power conferred by section 29 of the

Education Act, 1998 did not confer jurisdiction on the appeals committee to re-hear the subject of a section 29 appeal.

(iii) That the High Court erred in law and in fact in holding that the substantive power conferred by section 29 of the

Education Act, 1998 did not confer jurisdiction on the appeals committee to substitute, on appeal from a decision of the

board of management, its decision for that originally made by the board of management.

(iv) That the High Court erred in law and in fact in holding that the power of the appeals committee was confined to a

right to review the lawfulness and/or reasonableness of the board of management's decision to refuse enrolment and/or

that the appeals committee's function was akin to that of a "professional regulator".

(v) That the High Court erred in law in applying an "informed interpretation rule" to the interpretation of section 29 of the

Education Act, 1998 in circumstances where the literal interpretation of the said provision did not lead to an absurd or

ambiguous result or one plainly contrary to the legislative intent.

(vi) That the High Court erred in law and in fact in holding that the appeals committee in reaching its decision had had

regard to irrelevant considerations and/or not had regard to relevant considerations. In particular in circumstances where

these issues were being examined on the assumption that the appeals committee had the jurisdiction under section 29

contended for by the board of management herein, the High Court erred in law and in fact in treating the appeals

committee as being confined to matters regarded as being material by the board of management.

Section 29

13. The Court has been requested to interpret s.29 of the Act of 1998, which provides:-

" 29.—(1) Where a board or a person acting on behalf of the board—

(a) permanently excludes a student from a school, or

(b) suspends a student from attendance at a school for a period to be prescribed for the purpose of

this paragraph, or

(c) refuses to enroll a student in a school, or

(d) makes a decision of a class which the Minister, following consultation with patrons, national

associations of parents, recognised school management organisations, recognised trade unions and staff

associations representing teachers, may from time to time determine may be appealed in accordance

with this section,

the parent of the student, or in the case of a student who has reached the age of 18 years, the student, may,

within a reasonable time from the date that the parent or student was informed of the decision and following the

conclusion of any appeal procedures provided by the school or the patron, in accordance with section 28 , appeal

that decision to the Secretary General of the Department of Education and Science and that appeal shall be heard

by a committee appointed under subsection (2).

(2) For the purposes of the hearing and determination of an appeal under this section, the Minister shall appoint one

or more than one committee (in this section referred to as an “appeals committee”) each of which shall include in its

membership an Inspector and such other persons as the Minister considers appropriate.

(3) Where a committee is appointed under subsection (2) the Minister shall appoint one of its number to be the

chairperson of that committee and who, in the case of an equal division of votes, shall have a second or casting

vote.

(4) In hearing and determining an appeal under this section an appeals committee shall act in accordance with such

procedures as may be determined from time to time by the Minister following consultation with patrons, national

associations of parents, recognised school management organisations and recognised trade unions and staff

associations representing teachers and such procedures shall ensure that—

(a) the parties to the appeal are assisted to reach agreement on the matters the subject of the appeal

where the appeals committee is of the opinion that reaching such agreement is practicable in the

circumstances,

(b) hearings are conducted with the minimum of formality consistent with giving all parties a fair

hearing, and

(c) appeals are dealt with within a period of 30 days from the date of the receipt of the appeal by the

Secretary General, except where, on the application in writing of the appeals committee stating the

reasons for a delay in determining the appeal, the Secretary General consents in writing to extend the

period by not more than 14 days.

(5) On the determination of an appeal made under this section, the appeals committee shall send notice in writing of

its determination of the appeal and the reasons for that determination to the Secretary General.

(6) Where—

(a) an appeals committee upholds a complaint in whole or in part, and

(b) it appears to the appeals committee that any matter which was the subject of the complaint (so far

as upheld) should be remedied,

the appeals committee shall make recommendations to the Secretary General as to the action to be taken.

(7) As soon as practicable after the receipt by the Secretary General of the notice referred to in subsection (5),

the Secretary General—

(a) shall, by notice in writing, inform the person who made the appeal and the board of the

determination of the appeals committee and the reasons therefor, and

(b) in a case to which subsection (6) applies, may in such notice give such directions to the board as

appear to the Secretary General (having regard to any recommendations made by the appeals

committee) to be expedient for the purpose of remedying the matter which was the subject of the

appeal and the board shall act in accordance with such directions.

(8) The Minister, in consultation with patrons of schools, national associations of parents, recognised school

management organisations and recognised trade unions and staff associations representing teachers, shall from time

to time review the operation of this section and section 28 and the first such review shall take place not more than

two years from the commencement of this section.

(9) In the case of a school which is established or maintained by a vocational education committee an appeal

against a decision of the board of such school shall lie, in the first instance, to the vocational education committee

and thereafter to the Secretary General in accordance with subsection (1).

(10) The Minister shall, from time to time, following consultation with vocational education committees, national

associations of parents and recognised trade unions and staff associations representing teachers, prescribe—

(a) the procedures for appeals under this section to vocational education committees, and

(b) which appeals shall inquire into whether the procedure adopted by a board in reaching a decision or

conducting an appeal was fair and reasonable and which appeals shall be by way of a full re-hearing.

(11) The Secretary General may, in accordance with sections 4 (1) (i) and 9 of the Public Service Management Act,

1997 , assign the responsibility for the performance of the functions for which the Secretary General is responsible

under this section to another officer of the Department of Education and Science.

(12) For the purposes of subsection (1)(c), “student” means a person who applies for enrolment at a school and

that person or his or her parents may appeal against a refusal to enroll him or her in the same manner as a student

or his or her parents may appeal a decision under this section."

[Emphasis added]

Construing Section 29

14. First it is appropriate to consider the words of the section. The committee is called the "appeals committee". The description of

the process in s.29(1) is clear. Where a board refuses to enrol a student in a school the parent of the student, following any appeal

procedures provided by the school or patron, may "appeal that decision" to the Secretary General of the Department of Education and

Science and "that appeal" will be heard by a committee appointed under s.29(2). Section 29(2) states that for the purpose of "an

appeal" under the section the Minister shall appoint a committee. As already noted this is referred to as "an appeals committee".

15. The process is called "an appeal" in s.29(4). The procedures may be determined by the Minister, following consultation.

16. It is specifically provided that the parties "to the appeal" be assisted to reach agreement on matters the subject of the appeal

where the appeals committee is of the opinion that reaching such agreement is practicable. Thus, in this process, there is a statutory

recognition of the benefits of mediation where it is practicable.

17. The statute provides that the procedures be conducted with the minimum of formality consistent with giving all parties a fair

hearing. Such provision is consistent with a fair appeals process.

18. Section 29(4)(c) makes provision for time limits, in reference to the appeal, unless there are stated reasons for the delay. Even

then there is a limit on the permitted statutory extension of time.

19. Section 29(5) provides that on the determination of an appeal, the appeals committee shall send notice in writing of its

determination, and the reasons, to the Secretary General.

20. Section 29(6) provides that if the appeals committee upholds a complaint and considers it should be remedied the appeals

committee may make recommendations to the Secretary General as to the actions to be taken.

21. Section 29(7) provides that as soon as practicable after the receipt of the notice by the Secretary General, the Secretary

General shall by notice in writing inform the person who made the appeal and the board of the determination and the reasons of the

appeals committee. And, if the appeals committee has upheld a complaint and made recommendations, the Secretary General may, as

appears expedient, give directions to the board and the board shall act in accordance with such directions. Consequently, it is clear

that the appeals committee may make recommendations and the Secretary General then "may … give such directions to the board as

appear to the Secretary General (having regard to any recommendations made by the appeals committee) to be expedient for the

purpose of remedying the matter which was the subject of the appeal. ..." The board is required to act in accordance with such

directions. So there is a specific reference to "remedying the matter". This is consistent with a full hearing with jurisdiction to remedy

the matter.

22. Taking an overview of s.29 it is clear that the words "appeal" and "appeals" are dominant. They appear 21 times, excluding

references to "appealed" and "appeals committee". Further, the decision-making body is called an "appeals committee".

23. The words in s.29 are very clear. The term "appeal" is not obscure. It has a plain meaning in relation to procedures. The concept

of an appeal is a full hearing on the merits with the jurisdiction to make a determination on the issues raised. An appeal goes beyond a

review of a decision-making process.

24. As the words of s.29 are clear, with a plain meaning, they should be so construed. The literal meaning is clear, unambiguous and

not absurd. There is no necessity, indeed it would be wrong, to use other canons of construction to interpret sections of a statute

which are clear. The Oireachtas has legislated in a clear fashion and that is the statutory law.

25. Consequently, the appeals process enables the appeals committee to have a full hearing on the matter and if so determined to

replace its judgment on the matter for that of the Board and to make such recommendations as it considers appropriate. Such a

decision is anticipated as a possible outcome of an appeal by the section itself, in the provisions enabling a Secretary General to

require a board to remedy a situation in accordance with the recommendation of an appeal committee.

26. Thus the jurisdiction of an appeals committee is not limited to a review, for example, of the lawfulness or reasonableness, of a

decision of a board of management.

Conclusion

27. For the reasons given, I would apply a literal interpretation to the section, and thus I am satisfied that an appeals committee has

the jurisdiction to conduct a full hearing on an appeal under s.29 of the Act. It is not limited to a review of the decision of the board

of management.

28. Consequently, I would hold that the High Court erred in its interpretation of s.29 of the Act in determining that an appeals

committee is limited to the review of the lawfulness and/or reasonableness of a decision of the board of management. For the reasons

given I would allow the appeal on this preliminary issue.