The High Court has quashed the Department of Education and Skills’ refusal to provide calculated grades to a home-educated Leaving Certificate student, ruling that the process unlawfully excluded her because her tutors were not registered teachers.
The judgment does not award the student calculated grades. It quashes the decisions refusing them and declares the refusal irrational, arbitrary, unfair and unlawful. The court said it would hear the parties on consequential orders and listed the matter for 30 September 2020.
The student, identified as N.P., was home educated by her mother, with help from her father and other tutors. Her mother engaged two tutors to provide grinds. Neither was registered with the Teaching Council. One submitted estimated percentage marks in six subjects to the Department in July 2020.
The Department refused to provide calculated grades, saying there was no satisfactory, credible evidence from an appropriate source because the tutor did not meet the criteria of a previous or currently registered teacher. The refusal was communicated on 11 August and repeated in a letter on 27 August.
The student sought judicial review, arguing that she should be allowed to be considered for grades, rather than claiming an entitlement to receive them. Her case included that school students could have marks initially estimated by a non-registered teacher and then reviewed by a registered principal, while the out-of-school arrangements offered no equivalent route for her.
Justice Meenan found that this difference placed home-educated students at a considerable disadvantage. He said the Department could have provided for an outside registered teacher to review the evidence and give an estimate, potentially enabling a calculated grade. The evidence had not been assessed on its contents; the decision turned on its source, the judge said.
The court distinguished between the calculated grades decision and the separate question of whether the student would ultimately receive a grade. It also rejected the Department’s submission that she could sit the November Leaving Certificate as an answer to her case, noting that she had been excluded from the calculated grades process from the outset and that the examination’s holding depended on public health circumstances.
The ruling followed the approach taken in an earlier case, Elijah Burke v. The Minister for Education, which the Department had appealed. In that case, independent teachers became involved and Burke received calculated grades totalling 577 points. The judgment noted the appeal but did not determine its outcome.