Ford v A School Board of Trustees
[2021] NZHC 1608
•1 July 2021
NOTE: THE IDENTITY OF THE APPLICANT, THE CHILD AND THE SCHOOL IS PERMANENTLY SUPPRESSED.
CONFIDENTIALITY ORDERS APPLY TO THE EVIDENCE FILED. THE FILE IS NOT TO BE SEARCHED WITHOUT LEAVE OF A HIGH COURT JUDGE.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2021-454-30
[2021] NZHC 1608
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 BETWEEN
FORD
Applicant
AND
A SCHOOL BOARD OF TRUSTEES
Respondent
AND
SECRETARY FOR EDUCATION
Intervener
Hearing: 29 June 2021 Counsel:
A S Butler and S W H Fletcher for Applicant P A Robertson and C T Child for Respondent
K G Stephen and A M Piaggi for Secretary for Education as Intervener
Judgment:
1 July 2021
JUDGMENT OF SIMON FRANCE J
Introduction
[1] Smith Primary School1 operates an enrolment scheme under the Education and Training Act 2020 (the Act). That means that there is a geographical area known as
1 At the interlocutory stage it was directed that anonymised names be used.
FORD v A SCHOOL BOARD OF TRUSTEES [2021] NZHC 1608 [1 July 2021]
the home zone. All children of school age resident within the home zone are entitled to enrol at the school.2 All others, being “out of zone” must apply if they wish to enrol. They will take priority behind all home zone students.
[2] Mr and Mrs Ford’s eldest child attends Smith Primary School as an out-of-zone student. Another daughter, Bella, will turn five this year. Her parents applied for her to also attend the school as an out-of-zone student. On 25 August 2020 the principal of Smith Primary School wrote to Mr and Mrs Ford saying that the application on Bella’s behalf had been successful and the principal was
able to offer Bella a place at our school for new year.
As we have adopted a Cohort Policy,3 Bella will be eligible to start term 3 on Monday 26 July 2021, however we will discuss this with you closer to the time.
[3]On or about 28 August 2020, Mr and Mrs Ford accepted the offer.
[4] On 18 March 2021 the principal emailed Mr and Mrs Ford asking them to contact her, which they did. They were advised that due to unexpected numbers of home zone enrolments, the school could not proceed with the five out-of-zone enrolments due to commence on 26 July 2021.
[5] Mr and Mrs Ford bring these proceedings seeking declarations that the decision to cancel the offer was unlawful and that the offer remains valid. The import is that the initial letter of 25 August 2020 created a right to enrol concerning which there is no power to revoke.
The scheme
[6] Section 33 of the Act generally provides that every domestic student is entitled to free enrolment and free education at any State school from their fifth birthday.4 This starting date is subject to the cohort entry policy which may defer the commencement
2 Education and Training Act 2020, s 74(1).
3 A cohort policy controls the days on which children may start. Normally these are the first day of term or a nominated mid-term date.
4 Education and Training Act 2020, s 33(1).
of schooling to the first cohort entry day that is scheduled after the fifth birthday.5 Section 33(2) adds:
(2) This right includes the entitlement to attend the school at which the student is enrolled during all the hours that the school is open for instruction.
[7] To complete this group of provisions, s 62(a) provides that no child can enrol prior to the age of five.
[8] A limitation on these entitlements that is provided by this Part of the Act is an enrolment scheme:
71 Purpose and principles
(1)The purpose of the enrolment scheme of a State school is—
(a) to avoid overcrowding, or the likelihood of overcrowding, at the school; and
(b) to ensure that the selection of applicants for enrolment at the school is carried out in a fair and transparent manner; and
(c) to enable the Secretary to make the best use of existing networks of State schools.
(2)In achieving its purpose, the enrolment scheme of every State school must, as far as possible, ensure that—
(a) the scheme does not exclude local students; and
(b) no more students are excluded from the school than is necessary to avoid overcrowding at the school.
[9] It is mandatory for a school to have an enrolment scheme if overcrowding occurs or is likely to occur.6 Overcrowding is defined to mean the attendance at school of more students than its site or facilities can reasonably be expected to take.7
[10] As noted, an enrolment scheme identifies a home zone within which boundaries there is an absolute entitlement for resident children to attend the school. There are rules governing how to define the home area boundaries,8 and rules concerning the establishment and notification of an enrolment scheme. None of that
5 Sections 63–66.
6 Education and Training Act 2020, s 72(1).
7 Section 10.
8 Brown v Minister of Education [1985] 2 NZLR 356 (CA) discusses these rules.
is in issue here. It is common ground the Fords live outside the home area zone of Smith Primary School.
[11] Section 74 of the Act is a key provision. Section 74(1) provides the absolute right to a home zone student. Section 74(2) defines when an out-of-zone child may enrol at the school:
74 How enrolment schemes work
(1)A person who lives in the home zone of a State school that has an enrolment scheme is entitled to enrol at that school.
(2)An applicant for enrolment at a school with an enrolment scheme who lives outside the school’s home zone is entitled to enrol at the school only—
(a) if the applicant is offered a place at the school in accordance with the procedure set out in the enrolment scheme; or
(b) if the Secretary has agreed or directed under section 37, or directed under section 76, 82, or 87 or clause 14 of Schedule 20, or directed in accordance with regulations made under this Act, that the student be enrolled at the school; or
(c) if all of the following apply:
(i)the student has been excluded or expelled from another school (school A); and
(ii)the principal of the school at which the student wishes to enrol agrees, by arrangement with the principal of school A, to enrol the student; and
(iii)the Secretary endorses the proposal.
[12] Schedule 20 to the Act provides much of the detail as to how enrolment schemes are to operate. Clause 2 of the Schedule establishes six priority groups for out-of-zone applications. Places are to be allocated according to the priorities. If there are more children than places in whatever is the lowest priority group reached, then a ballot within that group of children is to be held.
[13] The Act authorises the Secretary for Education to issue Guidelines which has happened. Concerning the offering of out-of-zone places the Guidelines observe:9
9 Te Mumu Whakarae mō te Mātauranga | Secretary for Education Guidelines for the development and operation of enrolment schemes for State Schools (Ministry of Education, December 2020) at 5–6.
Operating an enrolment scheme
An enrolment scheme is meant to be a tool that enables a board to prevent overcrowding at its school. The board has to remember that students living within the home zone have an absolute right to be enrolled. The board should not, therefore, enrol so many out-of-zone students that the capacity of the school is exceeded if, at a later date, students living in the home zone claim their right to be enrolled. The Ministry of Education will not look favourably on a request for additional classroom accommodation in such a situation. Given the purposes of an enrolment scheme, it is illogical to automatically increase capacity to satisfy demand. If, however, there is a sudden roll surge that could not reasonably have been predicted, an application may be viewed more favourably. In all cases the Ministry will assess the situation on a case by case basis.
Offering places to out-of-zone students
In some areas, schools have found that a late surge in applications from in- zone students has seriously taxed the capacity of the school. This has mainly occurred in secondary schools. The Ministry recommends that boards should be cautious and prudent in offering places to out-of-zone students and points out that:
· although parents have to be informed of the outcome of the ballot within three school days, this does not mean that all out of zone places have to be offered at this point;
· in secondary schools in particular it might be prudent to offer only a restricted number of places immediately after the ballot and to hold off allocating others until the in-zone picture is clear;
· in situations where experience has shown that the in-zone environment is especially volatile, it might be necessary to create only a waiting list of out-of-zone students as a result of the ballot and offer places at a later date, possibly as late as January, in some cases.
The Ministry would want to assist schools that have experienced unforeseen roll growth, but would expect to see evidence that schools have adopted a policy of restraint similar to those suggested above.
Further facts
[14] The basic facts have been noted. An offer was made, accepted by Bella’s parents, and six months later was withdrawn by the school. It can be noted at this stage that the offer was made around 11 months before Bella was due to turn five.
[15] In evidence filed for the case, the principal of Smith Primary School explains how the enrolling system works. It is an exercise coordinated across the neighbouring schools, with an agreed ballot date being determined. Advertisements are then placed
for applications with the decisions for each school to occur on the same day. Parents are to be notified within three days.
[16] The optimum roll for Smith Primary School is 208. However, overcrowding is a more complex analysis depending upon the numbers, for example, at each level. The Ministry sets ratios for the school for each year, which presently are:
Year 1 – one teacher in one teaching space with 15 students;
Years 2 and 3 – one teacher in each teaching space with 23 students; and Years 4–8 – one teacher in each teaching space with 29 students.
[17] Smith Primary School has three teaching spaces for Years 1–3. It needs four, as it has 85 students. The School is this year using a lined garage out of which to teach the 15 Year 1 students. It is a limited space, and is neither a designed classroom nor a designated teaching space. The curriculum is limited by this. Some aspects of the curriculum must be taught elsewhere meaning the students have to move to other spaces and at times just fit in with the other 70 children in their space.
[18] 2020 was not a typical year. One of the neighbouring schools was experiencing overcrowding so decided not to advertise at all for out-of-zone applications. It is seeking to review its home area zone to address the issue; this will have potential knock-on effects to neighbouring schools. Another neighbouring school has no numbers issues so did not have a ballot process for the opposite reasons, namely that all applicants would be accepted.
[19] Smith Primary School estimated likely home zone numbers and thought it could accommodate all the out-of-zone applications in priority group one, being those with siblings at school. Accordingly no ballot for group one was done, but all five applicants were offered places. This is the first time a ballot has not been held. It was expected the school would not reach capacity until Term 4, 2021.
[20]The principal, however, deposes:
The influx of students we received over the December 2020 to March 2021 period was simply unprecedented. We have never seen this kind of growth in the School nor in the wider ‘home-zone’ population.
[21] The school received six unexpected home zone applications between August and December 2020. It was thought at the time that this could be accommodated but then at the start of 2021, a further seven were received. This led the school to conclude it was not viable to maintain the out-of-zone Year 1 offers.
[22]The principal identifies several reasons for withdrawing the offer of enrolment:
(a)the increased numbers;
(b)the pressure currently on staff, students, and resources. The school is described as stretched and struggling to accommodate existing students;
(c)the workload on the new entrant teacher, and on external agencies that assist;
(d)the current poor building resource for existing Year 1 students; and
(e)planned classroom remodelling in the balance of 2021.
[23] It is noted that Bella can attend her own home zone school and there is an alternative out-of-zone school. Enrolling in those will not prejudice consideration of her application to join Smith Primary School from next year.
[24] The principal concludes with concerns over the impact on current Year 1 students, 25 per cent of whom have significant learning needs. In the principal’s professional opinion, the present situation makes it imprudent to increase numbers, and gives rise to health and safety concerns.
Submissions
[25] The applicant’s case is that the scheme of the Act is one of absolutely expressed entitlements. Where a general right is qualified, the qualification results in a similar absolute outcome once the conditions are met. The starting point is said to be s 33
which guarantees free access to any public school, subject only to limitations contained in the Act. One such limitation is where a school operates an enrolment scheme.
[26] An enrolment scheme is designed to allow a school to manage numbers, but also maintains elements of the absolute entitlement. Thus for students in the home zone, there is an absolute right to enrol. The school cannot manage these numbers and must otherwise plan against the background of that uncertainty. Where it is thought more places may be available than home zone student numbers, offers may be made to out-of-zone applicants but again according to statutory priorities, and with a power to ballot within groups so as to manage those numbers.
[27] At issue is the effect of the school offering such a place and the parents accepting the offer. Emphasis is here given to the statutory language of s 74:
(a)a home student is “entitled to enrol”; and
(b)a student who accepts an out-of-zone place that has been offered “is entitled to enrol”.
[28] The applicant submits this scheme makes plain the change in status from no capacity to enrol to an absolute entitlement which is of the same value and status of a home zone entitlement.
[29] It is submitted the language of the Secretary for Education’s Guidelines supports this approach.10 The cautious approach that schools are invited to take, including holding back places and creating wait lists rather than making offers, is submitted to be reflective of an awareness that offers change status. Students acquire a right to attend and so overcrowding can result. The resourcing context, and the Ministry’s warning to schools that it will not necessarily allocate further resources, seems premised on a recognition that the extra numbers will be there.
10 Set out above at [12].
[30] Finally, in terms of policy implications, it is submitted the applicant’s interpretation is consistent with the Act’s goals of efficiency, fair and transparent processes, and certainty for parents and children. In this context it is important to emphasise that the schools have control – they do not need to make an offer. It is also noted that if these five students were unexpected home zone students, the school would have to take them notwithstanding the concerns raised by the principal as to the current situation.
[31] The Secretary for Education joins with the Smith Primary School Board of Trustees in arguing for a different interpretation. The emphasis is on the difference between a status of enrolment, which accords many rights, and pre-enrolment processes which should not be seen as creating binding contracts that force a school to overload its classes with consequent impacts on existing students and staff.
[32] It is submitted the scheme of the Act makes plain that no child has any entitlement until they turn five years of age.11 It would be inconsistent with this to lock in entitlement prior to that date, be it an entitlement based on home zone (families can move) or an away zone offer (unexpected roll fluctuations occur). The purpose of an enrolment scheme is to allow schools to manage numbers. They exist only because of overcrowding issues, and the applicant’s interpretation is inconsistent with that purpose.
[33] For completeness I note that by the end of the hearing it was accepted that the school’s letter was not expressed in conditional terms. On its face it represented the offer of a place, and spoke of Bella being eligible to start on the nominated cohort day. The offer was accepted.
Decision
[34] The applicant’s interpretation is clearly tenable, and has some strength. That strength lies in the use in s 72 of the same expression to describe the status of a home zone student, and of an out-of-zone student who has had an offer of a place. Both are
11 See Education and Training Act 2020, s 62(a).
“entitled to enrol”. On normal interpretation principles, that expression would have the same meaning.
[35] That said, the applicant’s case gives insufficient weight to the fact that the home zone entitlement does not arise before a child turns five. It is at that date, or any date subsequent, that a child can present themselves. This matters because here the applicant is contending that Bella had an irrevocable right from a date not long after her fourth birthday. In that sense it seeks to accord a greater status to the out-of-zone child with an offer than the home zone child has. The home zone child must remain resident yet Bella is said to be absolutely entitled.
[36] It is I consider clear that the applicant’s interpretation is inconsistent with the purposes of the Act. In extreme circumstances, of which the present case is a good example, it would mandate the school taking steps (enrolling Bella and four others) at a significant cost to the well-being of existing Year 1 students. And it would bind the school to cause potential harm to third parties (existing students and staff) because a good faith prediction has unexpectedly proved incorrect through no real fault of the school. If it were only a matter between the school and Bella, these matters may be of less moment, but the reality is a cohort of similar-aged children, all already being taught in a less than ideal environment, would be impacted.
[37] The health, safety and well-being of students and staff appears in two purpose provisions relevant to the present exercise – in the Act’s overall purposes, and in the specific purposes provision for Part 3.12 Part 3 of the Act provides for enrolment schemes. As detailed earlier, enrolment schemes exist as a limit on the capacity of a child to enrol at any school. They address the specific issue of overcrowding, and by way of emphasising the concerns that attach to overcrowding and its impacts, it is mandatory for relevant schools to have an enrolment policy. All this makes unlikely an interpretation that would completely bind a school in the situation Smith Primary School finds itself.
[38] Schedule 20 of the Act contains details for how to run enrolment schemes. It requires schools once a year to publicly advise “the likely number” of out-of-zone
12 Sections 4 and 32 respectively.
places, and to seek applications. Ballot days are to be nominated and there are rules about how soon thereafter parents must be advised of the outcome. This process means schools are looking well into the future – for Bella it was an August 2020 notification for a July 2021 commencement, but there will be later cohort entry dates in 2021, so the period could be longer. This also tells against an inability to revisit.
[39] None of this is to suggest a school can simply change its mind. The reasons for revisiting would obviously have to be linked to the purposes of an enrolment scheme – overcrowding. What is a sufficient reason to revisit will be case-specific but on the present evidence I am well satisfied that if a power to revisit exists, it is a reasonable decision in this case.
[40]Other purposes identified in the Act are also relevant. For example,
Schedule 20 notes that a scheme:13
must promote the best use of the network of State schools in the area.
This highlights that well-being of students and staff, while no doubt a paramount factor, is not the only consideration. Overcapacity in one at the expense of under- utilised others is not a sensible use of resource.
[41] It is correct, as Mr Butler submits, that avoidance of the problems is in the control of the schools who need not offer places. But at some point the risk will emerge of defensive decision-making if complete inflexibility exists. That would equally be undesirable. It is worth emphasising that what has occurred here will be far from typical. Schools will have data and experience to inform their decisions and no doubt most times they will be near enough for issues such as the present not to arise. Here there were 13 unexpected home zone enrolments in a roll of 208 and a junior class of 80. That is a significant event which, as the principal says, is unprecedented for the school and probably more generally.
[42] I agree that the Guidelines can be read as working from a premise that is different from the position taken by the Secretary in this proceeding. However, the
13 Schedule 20, cl 5(d).
passages cited have as their context a situation of already enrolled out-of-zone students and then unexpected home zone arrivals:
The board should not, therefore, enrol so many out-of-zone students that the capacity of the school is exceeded if, at a later date, students living in the zone claim their right to be enrolled.
It is not therefore a statement that an-out-of-zone student must be enrolled even though the school is over-capacity.
[43] There was discussion of the Secretary’s ability to direct enrolments. Bella could apply to the Secretary for an order directing Smith Primary School to enrol Bella. Mr Stephen for the Secretary explained the limited circumstances in which such a direction would be given, and agreed with Mr Butler that it was not a realistic option here. The Board had relied on this power both to contest reviewability of the decision to withdraw the offer, and as a relevant discretionary relief factor.
[44] Concerning reviewability, the offer of a place was plainly the exercise of a statutory power. The issue of the lawfulness of withdrawing that offer is reviewable. The applicant seeks declarations as to the power to withdraw and there is no doubt that is a valid application. The view I take of matters makes it unnecessary to determine relief. Although the school’s situation is concerning, if no power existed to withdraw an offer it would be unlikely a Court would in effect create the power by declining relief.
[45] Finally, it is relevant but not determinative that the school could be in the same situation by virtue of home zone children unexpectedly presenting for enrolment. Indeed, that is why the school is where it is at now. The scheme of the Act is to guarantee every child a school with geographical proximity being the determinant of which school it is. Some method is needed, and it does not particularly influence the issue of whether the Act binds a school in relation to out-of-zone students.
Conclusion
[46] Section 33(1) of the Act entitles a child to enrol at school from their fifth birthday. Section 33(2) links the right to attend the school to enrolment. Section 62(a) says that a child under five may not be enrolled. The scheme of the Act therefore is
that rights to enrol only begin at the age of five, and that rights to attend a particular school flow from enrolment at that school.
[47] Concerning a school operating an enrolment scheme, rights to enrol will not completely vest until the child is five. It is at that date a home zone student must live in the area, and at that date an out-of-zone student must have an offered place. It is necessary and sensible to operate a pre-enrolment process for out-of-zone students that offers places to children in advance of their fifth birthday. While the normal expectation, and no doubt experience, is that such offers are honoured, it would be inconsistent with the scheme of the Act, and the purpose of enrolment schemes, to interpret the Act as preventing a school from ever revisiting an offer prior to the child being actually enrolled.
[48] The circumstances in which an offer be lawfully withdrawn are likely to be very limited. There is no doubt that the decision was properly taken in the present case.
[49] The applications for declarations that the actions of the Board are unlawful are declined. The parties may file costs memoranda if necessary with the timetable to be agreed by them. The Secretary for Education intervened on the basis that there would be no costs issues either for or against.
[50] Interim orders were made concerning the identity of the child, and consequently her parents. These are appropriately made permanent, as is suppression of the school. The affidavit evidence filed in support contains confidential and personal information, and although the Principal has sought to redact information, there are risks of identification of students. It is appropriate to afford confidentiality by restricting access to the file, the purpose of which is to restrict access to these affidavits.
Simon France J
Solicitors:
Woods Fletcher, Wellington for Applicant Heaney & Partners, Auckland for Respondent Crown Law, Wellington for Intervener
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