Out-of-zone pupil, 5, wins right to attend overcrowded school

The Court of Appeal has ruled it was "unlawful" to withdraw an offer of enrolment for an out-of...
The Court of Appeal has ruled it was "unlawful" to withdraw an offer of enrolment for an out-of-zone 5-year-old, even though the school was struggling with overcrowding. File photo: Getty Images
A new entrant girl has won the right to attend an out-of-zone school with her big sister after her family took the school to court.

The girl's big sister attended a primary school, despite living out of zone. Last year her 4-year-old sister was offered a place when she turned 5 in July 2021, as the rules give priority to siblings of current pupils.

But several months later, after the school's roll unexpectedly became overcrowded with kids from in zone, the school revoked the offer.

The family applied for a judicial review of the decision but were unsuccessful. However, the Court of Appeal has overturned the decision, giving her the right to attend.

Justices David Goddard and Clifford Brown today released their reasons for their July 15 decision. The names of the child and the school are permanently suppressed.

Under New Zealand law, all students/pupils living inside a school's geographic enrolment zone are entitled to attend that school. If there is remaining space, students from out of zone can enter a ballot, with priority given to students with family links to the school.

As the roll was nearly full, the school decided not to hold a ballot last year, for the first time in two decades. But it wrote to five out-of-zone families who had children currently at the school, advising that their younger children would still be able to enrol in 2021 due to their sibling links.

Then came an "unprecedented" influx of home zone students between December and March. Court documents say the school found itself "stretched and struggling to accommodate existing students". Facing pressure on staff, students and resources, including a high workload on the new entrant teacher, the school told the five families their offers had been withdrawn.

An adviser from the Ministry of Education told the school it had acted correctly.

Definition of 'entitled to enrol' called into question

The case hinged on whether it is lawful for a school to withdraw an unqualified offer to an out-of-zone student.

Section 74 of the Education and Training Act 2020 says that a person who lives in the home zone of a state school is "entitled to enrol" at that school.

An out-of-zone student is also "entitled to enrol" but only if they are offered a place at the school through correct enrolment scheme procedures.

The girl's parents argued that since she had been unconditionally offered a place at the school, and they had accepted it, she was now "entitled to enrol" there in exactly the same way as a home zone student.

That meant her offer could not be revoked.

In the High Court in July Justice Simon France said while that explanation was "tenable" he preferred the Ministry and school's explanation that there was a difference between the status of enrolment and the pre-enrolment process. The latter should not be viewed as creating a binding contract that would force a school to overload classes, he said.

But the Court of Appeal disagreed - concluding that "an unqualified offer of a place to an out-of-zone applicant may not be withdrawn even though the eventual number of in-zone enrolments is considered to cause overcrowding".

The school's decision to withdraw the girl's offer was thus unlawful, and the Court had no choice but to direct the school to enrol her.

Ministry of Education officials had advised the school incorrectly, the Court said.

Once an unconditional offer had been communicated, a child and their family could be expected to act on the basis of that offer.

"It would not be fair or transparent, or consistent with the requirements of good administration, for such an offer to be withdrawn in the absence of an express power to do so."

The Court said the girl's school start date could be varied if the parents and school could come to an agreement.

 

 

 

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