Judgement reserved in appeal against court's finding in leaving cert student case

Last September Ms Carter won her High Court case aimed at forcing the State Examinations Commission (SEC) to rectify an error in the totting up of her Leaving Certificate marks before UCD closed its admissions for 2018.

Mr Justice Richard Humphreys ruled that the appeals process was highly unfair, not fit for purpose and caused untold stress to students.

He said the Minister and Department of Education should review the process to ensure all appeals were completed before the start of the academic year in 2019.

Ms Carter of Ardcolm Drive, Rectory Hall, Castlebridge, Wexford, sued the SEC challenging its decision not to re-check her points score in time to allow her to obtain a place in Veterinary Medicine.

She had repeated her Leaving Certificate in order to get a place in the course having just missed out on a place the year before.

At the Court of Appeal on Friday Nuala Butler SC, for the Minister for Education, said his concern in the appeal is about the judge’s finding of a constitutional right of access to higher education.

The Minister's objection was not personal to Ms Carter whom he wished well but higher education is a "very complex thing", she said.

The disputed finding places a "significant obligation" on the Minister to provide for higher education commensurate with abilities of the relevant student, she said.

While veterinary science is an important source of study, we need a lot fewer vets than, for example, teachers and if the requirement to make places available is to be decided by individual student desires, that imposes significant resource obligations on the Minister and requires different strategic decisions by the Minister, she said.

The finding of such a right was inappropriately made for reasons including an appropriate State party was not on notice of any such argument and had been released from the case before the judge himself introduced the issue, she said.

The trial judge had made the finding in the context of Ms Carter’s pleaded claim of generic breach of her rights, including the constitutional right to earn a livelihood, counsel said.

While the right to earn a livelihood is a recognised constitutional right, the trial judge had on the second day talked of a constitutional right of access to higher education which would allow for securing the qualification necessary for success in the area where Ms Carter wished to earn a livelihood.

It was the judge who had maintained that argument in the case and it formed the basis of his judgment, she said.

The SEC, represented by Conor Power SC, is also appealing the High Court's decision on the existence of a constitutional right to a third level education. It also submitted that it then appeals system was not to blame.

It was UCD's fault, counsel said, as it did not adhere to the published arrangements in the CAO Handbook in regards to university places.

The SEC is also appealing the High Court findings that the appeal system was irrational, flawed, that the SEC failed to take relevant matters into account, and there was a breach of fair procedures.

The SEC further complains that the trial judge engaged in speculation and went beyond the evidence heard in the case.

Micheal P O’ Higgins SC for Ms Carter rejected claims her application was misconceived and argued that the appeals process was not rational nor reasonable.

Counsel told the court there was a contradiction by the appellants in their decision not to appeal the substantive orders by the High Court, while at the same time challenging the underlying reasons for the orders.

The appellants, it was submitted, were trying to have things both ways by not seeking to interfere with Ms Carter's offer of a place in UCD while at the same time inviting the court to reject the High Court's analysis that led to its conclusions.

In regards to the High Court's finding in regards to the constitutional right to access third level education, it was submitted by Mr O'Higgins that this was a matter for the Court of Appeal to assess if such a right exists. Ms Carter was not present in court for the hearing of the appeal.

Following the conclusion of submissions from the parties the three-judge court comprised of Mr Justice Michael Peart, Ms Justice Marie Baker and Mr Justice Brian McGovern reserved its decision. The court did not say when it would be in a position to deliver judgement.