Richard Bruton (Dublin Bay North, Fine Gael) | Oireachtas source

There may be a slight misunderstanding about what is being done. These subsections list the options that are available.They are not saying that there is an unfettered choice to take one or the other. They are saying that, if an error had occurred and a child was placed 30th on a waiting list when he or she should have been placed tenth, the decision can be made to place that child tenth. If the situation was that the child should have been admitted, the child will be admitted. This provides the range.

This comes up again in the Senator's amendment No. 10. This lists what a board can decide. It can obviously decide to do nothing and not to uphold an appeal, whatever that appeal might be. It can uphold the appeal and admit the child if that is the relevant and appropriate decision. It can place the child in his or her proper place on the waiting list if that is appropriate. I recognise that the section does not explain this, because it lists the available options. I will certainly ensure it will be very clear in the procedures that will accompany this Bill, but it is absolutely the intention that, where this occurs, that is what the boards will do. To be clear, if that was not done a decision would be open to judicial review on the grounds that it was totally unfair. If an appeals body trying the evidence and having a hearing finds that the child was wrongly excluded, he or she must be included. However, if a child was found to have been placed on the waiting list incorrectly, he or she must be put in his or her proper place. That is the intention of this section.

If the Senator's amendment was accepted it would result in a situation in which, if an error occurred and a child was placed 30th on a waiting list when he or she should have been tenth, the child would not be moved up to the appropriate place on the waiting list but rather the Bill would force his or her admission, even though that would breach the school's admission policy. While I understand what the Senator is driving at, I cannot accept the amendment because, if it was accepted, any error discovered in any material procedure would result in the child having to be admitted ahead of children with legitimate priority over that child under the admission policy and the Act. It would undermine what we are trying to do. I will, however, make sure that there will be no doubt in the procedures we issue to accompany this legislation that, where the evidence shows that a child ought to have been in the school, the adjudication will be to put him or her in the school and, if it is found that a child should be a higher on the waiting list, then the adjudication will be to put him or her higher on the waiting list.