Appeal clarifies legal definition of capacity

A judicial review has upheld the legality of East Ayrshire's decision to close St Paul's primary school, Hurlford, and defined the legal criteria of a school's capacity.

In a judgment with important ramifications for councils attempting to close schools, Lady Cosgrove accepted at the Court of Session in Edinburgh last week that the authority had correctly assessed the capacity of the school and so there were no grounds for referral to the Secretary of State.

She awarded costs against the petitioner, Alyson King, mother of two former pupils of St Paul's, who says she will appeal. Her children are still being taught at home.

East Ayrshire closed the school last June, but a group of parents petitioned for a judicial review, maintaining that since the numbers at the school exceeded 80 per cent of its capacity the Secretary of State had to approve the council's decision. The school roll was 81 at the time and the parents argued that the capacity of the school was 100.

East Ayrshire argued that its decision was based on a capacity of 122, the total number that could legally be taught there, albeit some classes would have to be taken by two teachers. The 1980 Education Act does not define capacity.

Michael Upton, for the parents, said the school rarely had classes taught by two teachers and as such, the situation at the time of the closure was the "working capacity" and the council's definition the "planning capacity".

Mr Upton argued that a school was "more than bricks and mortar", and that capacity had to be one that properly reflected the children's educational needs.

But Fiona Reith, QC, for East Ayrshire Council, said the Oxford English Dictionary defined capacity simply as the "ability to hold".

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