Ford v Board of Trustees for Smith Primary School (reasons) - [2021] NZCA 363

Date of Judgment

02 August 2021

Decision

Ford v Board of Trustees for Smith Primary School (reasons) (PDF 333 KB)

Summary

Appeal allowed. 
Judicial Review -   Education and Training Act 2020. 

The appellant, who lives outside the home zone prescribed in the enrolment scheme for Smith Primary School, applied to enrol there. She was offered a place at the School in accordance with the predecessor of s 74(2)(a) of the Education and Training Act 2020, she having priority because her older sister is already a student there. This offer was accepted. However, due to unexpected numbers of home zone enrolments with overcrowding consequences, several months later this offer was withdrawn. The appellant unsuccessfully applied for judicial review of the withdrawal decision. 

Appeal allowed. 

The offer was not expressly conditional, and therefore the question is whether the Act should be interpreted as conferring a power to withdraw an unqualified offer of a place at a school made to an out-of-zone applicant under s 74(2)(a). The text of the Act does not support this. The use of the present tense in s 74(2)(a) ("if the applicant is offered a place in the school") is not significant. It would be a distortion of language to endeavour to read the wording as meaning the applicant must be in a continuing constant state of being offered a place at the School. The fact that the pathway for out-of-zone applicants involves a pre-enrolment process determined in advance of the enrolment date does not mean that offer is revocable up until that enrolment date. 

This is supported by the purpose of the legislation. While one purpose of the enrolment scheme is to avoid overcrowding, another is fairness and transparency in the selection of out-of-zone applicants. This is achieved in multiple ways, including by a waiting list process of balloted students not offered a place. The waiting list is to be available for inspection at the school. The Act envisages a binary scheme: an applicant is offered a place or is recorded on the waiting list in the order drawn from the ballot. However, if such offers could be withdrawn, presumably those offerees would be expected to have priority if a space later became available, and so those on the waiting list would be relegated. This could not have been the intention of the legislature. The concept of offers that could be revoked creates an opaque system, rather than one of fairness and transparency