A legal loophole which allowed parents making placing requests to circumvent the government's 25-pupil class-size limit for P1 has been addressed by one of the top courts in the land.
A ruling by Lord Glennie at the Outer House of the Court of Session will make it easier for education authorities to refuse placing requests which would require them to employ an additional teacher.
Until now, a parent who was turned down for a P1 placing request could get round the "additional teacher" ground for refusal by referring the case to the council's appeals committee or a sheriff court.
The child would be given "excepted pupil" status in the interim, which did not count towards class size. This allowed the parent to argue that the council did not have to employ an additional teacher if a placing request appeal was granted. In fact, once the child was accepted permanently into the class, the authority did have to employ an additional teacher.
The ruling earlier this month by Lord Glennie reverses that position. He said the anomaly was not picked up by the Scottish parliament when it was amending earlier regulations in 2009. It was "far from clear that at the committee stage the particular issues with which I am here concerned had been identified", he said.
Iain Nisbet, a solicitor with the Govan Law Centre who represented the unnamed parent against Edinburgh City Council at the Sheriff Court stage of the case, called for the current regulations to be "tidied up" to give greater certainty. His centre had raised the anomaly at the consultation stage but the regulations had gone through unchanged, he said.
John Stodter, general secretary of ADES, welcomed what he called a "logical judgment" which made clear that the "excepted pupil" category was a "a bit of a red herring".
"The excepted pupil concept was only a holding situation so that a class didn't become full while an appeal was going ahead. This gives councils the confidence that they can plan for class sizes in the interests of all the children and that can't be overturned in the interest of one child," he said.
The case will be seen as highly persuasive but not definitive, cautioned Charles Livingstone, a lawyer with the Edinburgh firm Brodies which represented the council at the earlier stages.
An Outer House decision is not binding on sheriffs; only if a case is sent on appeal to the Inner House can the issue be settled absolutely, he said.
Case reference: U T-H, Petitioner  CSOH 008
April 2007: The Scottish government introduced a policy of limiting P1 class sizes to 25, but local authorities were unable to comply because statutory regulations passed in 1999 set the maximum at 30.
2008: Lord Woolman in the Outer House of the Court of Session confirmed a series of cases from East Lothian - that if a class had fewer than 30 pupils, a placing request could not be refused by the council on "additional teacher" grounds.
2010: The government attempted to close the loophole by amending the 1999 regulations, but in doing so created another one: a category of "excepted pupils" who did not count towards the class size limits in the regulations. But parents could circumvent a council's refusal of a placing request on the additional teacher ground by going to the council's appeals committee or a sheriff. This process automatically exempted the child from being counted.
2011: Sheriff Nigel Morrison decided in Edinburgh City Council's favour, saying the regulations had led to an "absurd" outcome which the government could never have intended when it amended them.
2012: Lord Glennie agreed with Sheriff Morrison's decision.