Circular No 3/2004: GUIDANCE ON DETERMINING SCHOOL CAPACITIES
ANNEX
Section 28A(3) of the Education (Scotland) Act 1980, as inserted by Section 1 of the Education (Scotland) Act 1981, Section 28A(3A) to (3E) of the 1980 Act, Section 33 of the Education (Scotland) Act 1996, and Section 44 of the Standards in Scotland's Schools etc Act 2000, sets out the exceptions to the duty on an education authority to comply with a placing request. It states (with the new sub-section highlighted in bold):
"(3) The duty imposed by subsection (1) above does not apply-
(a) if placing the child in the specified school would -
(i) make it necessary for the authority to take an additional teacher into employment;
(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school;
(iii) be seriously detrimental to the continuity of the child's education;
(iv) be likely to be seriously detrimental to order and discipline in the school;
(v) be likely to be seriously detrimental to the educational well being of pupils attending the school;
(vi) assuming that pupil numbers remain constant, make it necessary at the commencement of a future stage of the child's primary education, for the authority to elect to create an additional class (or an additional composite class) in the specified school or take an additional teacher into employment at the school; or
(vii) though neither of the tests set out in sub-paragraphs (i) and (ii) above is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers.
(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child;
(c) if the education authority have already required the child to discontinue his attendance at the specified school;
(d) if, where the specified school is a special school, the child does not have special educational needs requiring the education or special facilities normally provided at that school; or
(e) if the specified school is a single sex school (within the meaning given to that expression by section 26 of the Sex Discrimination Act 1975) and the child is not of the sex admitted or taken (under that section) to be admitted to the school."
but an education authority may place a child in the specified school notwithstanding paragraphs (a) to (e) above."