Public Law

There’s a new decision available on the Scotcourts website that might assist local authorities struggling with the Byzantine legislation governing school placing requests. The case was a placing request appeal in Edinburgh Sheriff Court, featuring your humble author as the solicitor for City of Edinburgh Council.

The decision is here, and it involves an issue of general importance which has been causing problems for several councils (and may affect others in the future).

That issue was whether the Council could defend itself at appeal stage on the grounds that accepting an extra child would make it necessary to employ an additional teacher, because the class would exceed the statutory limit of 25 pupils for P1. That limit was amended into the Class Sizes Regulations for this new school year, after councils lost a spate of placing request appeals when the 25 limit was only a policy preference.

The appellant argued that because a pupil placed by a Sheriff doesn’t count towards the 25 pupil limit for the purposes of the Regulations, no extra teacher would be needed if the appeal was successful – the “additional teacher” ground of refusal therefore did not exist, and so the appeal should succeed. In fairness, that argument is not as strange as it sounds, as the amendment to the Regulations failed to close the loophole that created the problem (even though the very same argument was responsible for some of the appeal defeats suffered by councils in recent years).

We opposed that argument on the grounds that it would make the 25 pupil limit meaningless, and suggested an alternative interpretation of the statute that would allow councils to defend decisions taken on the “additional teacher” ground (both before Appeal Committees and Sheriffs).

The Sheriff agreed with our suggested approach, and so his decision might be useful for other councils faced with the same argument in future. However, since one Sheriff’s decision is not binding on another, nothing is guaranteed!

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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