Secular school firm wins appeal over patronage application

A company promoting secular education has won its appeal over the Department of Education’s rejection of its application for patronage of a new primary school in Co Cork.

Because of a “serious administrative error” by the Department, Secular Schools Ireland (SSI) suffered an injustice in being excluded from the application process, the Court of Appeal found.

In circumstances where SSI had confirmed to the court it was not now seeking to “unseat” the Cork Education and Training Board as patron, it is entitled to a declaration its application was “not invalid”, the court held.

While this might appear of little practical benefit to SSI, the case raised a “significant issue of public administration” and it was “of real importance” to SSI that its position be vindicated.

SSI was among four applicants for patron of the school at Carrigtwohill when it was announced it would open in Autumn 2015. Its March 2015 application contained names and details of 98 parents who favoured a secular school.

Requirements

In June 2015, the Department informed SSI that its application was invalid after stating SSI had only confirmed its willingness to meet one of seven requirements set out in guidelines provided by the Department to patronage applicants.

SSI, represented by Michael Lynn SC and Gerard Humphreys BL, took judicial review proceedings against the Minister for Education and State.

It argued that it did not understand there was any requirement to make an explicit statement concerning the requirements and the fact of its application should have been understood as tacit acceptance to all conditions.

The Department argued that the SSI application was required, but failed, to include the necessary commitments. The New Schools Establishment Group, an independent body overseeing the patronage process, agreed that the SSI application was invalid, it added.

After the SSI's case was dismissed by the High Court in September 2016, it appealed to the Court of Appeal which, in a unanimous judgment on Tuesday, allowed the appeal.

Valid

Giving the three judge court’s decision, Mr Justice Sean Ryan said the core issue was whether the SSI application for patronage was valid or not. The court was not required to decide wider issues concerning the State’s obligations or parental rights in relation to secular education.

There was no application form for patronage applicants, he noted. The Department’s case was its information and guidelines for patronage applicants contained “mandatory commitments” that applicants must sign up to “in their applications” for patronage.

The Department’s understanding of its own guidelines was “erroneous” for reasons which included that it was not stated anywhere in the guidelines the commitments referred to must be expressed “in the application”, he found.

The guidelines did not contain the specific demands the Department argued for and the Department should have explicitly said what an application had to contain, he said.

The information provided also failed to make clear to applicants that failure to specify acceptance of the conditions “in their application” would be “fatal”.

What happened here was “a case of confused thinking based on a misleading choice of words which the Department proceeded to misunderstand”.

Error of administration

The Department, as a result of a “serious error of administration”, wrongly concluded the SSI application was invalid and thus wrongly excluded it from consideration.

This was the first application by SSI and it was “not fair or reasonable” to expect it to know about pre-conditions for validity of an application based on evaluation reports in previous years and other cases, he said.

It was unnecessary to consider if the Department should have asked SSI for reassurance or confirmation as to its commitments before making its decision, he said.

SSI only discovered from the Department’s website that its application was not evaluated on its merits, he noted. That was not calculated to inspire confidence in the process or the decision, especially for a disappointed applicant, he said.