Ali v Head and Governors of Lord Grey School

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sedley,Lord Justice Clarke
Judgment Date29 Mar 2004
Neutral Citation[2004] EWCA Civ 382
Docket NumberCase No: A2/2003/1548

[2004] EWCA Civ 382

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

(STANLEY BURNTON J)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

The President

Lord Justice Clarke and

Lord Justice Sedley

Case No: A2/2003/1548

Between:
Abdul Hakim Ali
Appellant
and
The Head Teacher and Governors of Lord Grey School
Respondents

Cherie Booth QC and Carolyn Hamilton(instructed by The Children's Legal Centre) for the Appellant

Jonathan Moffett (instructed by Borough Solicitor, Bracknell Forest Borough Council) for the Respondent

Lord Justice Sedley

The issue

1

If a state school unlawfully excludes a pupil who is on its roll, or excludes a pupil who has been unlawfully removed from its roll, has it violated his right to education under the European Convention on Human Rights; and if it has, are the headteacher and governing body liable under the Human Rights Act 1998 to pay him damages?

2

School exclusions are a serious matter. A disturbingly high proportion of the prison population has begun by being excluded from school. But a refractory pupil can disrupt the education of others and make teachers' work impossible. Legislation, guidance and case-law have sought in recent years to keep a workable balance between justice to pupils in trouble and justice to the school as a functioning unit. That is one aspect of the present case.

The structure of state education

3

The other aspect is that, while it is the state which both domestically and internationally bears the obligation to provide universal education, the law of England and Wales does not know the state as a legal entity. Centrally, the core functions of the state are performed by individuals in the name of the Crown, which since the Crown Proceedings Act 1947 has been able to be sued (as it always could be in Scotland) as if it were a legal person. Locally, the functions of the state have for centuries been discharged by a variety of corporations or boards, local authorities prominent among them. Other layers (agencies, quangos, trusts) now complicate the pattern but do not matter to the present case.

4

It is the central state which by longstanding policy and more recently by international obligation has undertaken the provision of education. Today, s.10 of the Education Act 1996 places on the Secretary of State the general duty of promoting the education of the people of England and Wales. For largely historical reasons the obligation has, since the Education Act 1944, been discharged through local authorities; but in more recent years many of the educational powers and duties of local authorities have been transferred to schools in the interests of greater local autonomy.

5

The state school, however, is neither an emanation of the Crown nor ordinarily a corporate entity. It is described in the 1996 Act as an educational institution (see s.4(1)) but as an institution it has no legal personality. In the case of a community school, a voluntary controlled school or a community special school, its teachers, including the headteacher, are employed and dismissable by the local education authority, which (being by s.12 a designated local authority) does have corporate status.

The LEA's duties

6

Sections 13 to 18 spell out the functions of LEAs in providing nursery, primary and secondary education for their areas, including a duty to ensure that the areas contain sufficient schools of appropriate kinds (s.14). Relevantly to the present case, s.19(1) as amended provides:

"Each local education authority shall make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."

In other words, it is the LEA's obligation to ensure that no child falls out of the education system, even if excluded from school. The content of this duty is amplified

by the provision of subsection (5) that any such child continues to be a pupil for all statutory purposes;

by the provision of subsection (6) that 'suitable education' means efficient education suitable to the pupil's age, ability and aptitude;

by Circular 11/99 which requires LEAs to ensure that temporarily excluded pupils are reintegrated where possible and educated meanwhile; and

by Circular 10/99, which reminds LEAs that the obligation to provide for the education of permanently excluded pupils reverts to them.

The school's duties

7

The school of which the present respondents are respectively the headteacher and the governing body is a foundation school, one of the five types of maintained school now contained within the state system: School Standards and Framework Act 1998 (hereafter SSFA), s. 20. The duty to maintain the school rests on the LEA (SSFA, s.22). By SSFA s.36 every maintained school is to have a governing body, to which the section accords corporate status and which is made responsible for the conduct of the school (s.38) and its budget (ss. 49, 50).

8

The legislation does not create the office of headteacher: it assumes its existence. Thus SSFA s.61(1) requires the governing body to ensure that policies designed to promote good behaviour and discipline are pursued at the school, and subsections (4) and (6) allocate to the headteacher the making and implementation of rules to implement the governors' policies. This division of responsibility is elaborated in paragraphs 4 and 5 of the Education (School Government) (Terms of Reference) Regulations 2000, which give the governing body "a largely strategic role" and make the headteacher responsible for "the internal organisation, management and control of the school". By s.579(1) of the Education Act 1996 "headteacher" includes an acting headteacher.

9

By SSFA s.68 (repealed as from 20 January 2003), both the headteacher and the governing body of a maintained school were required, in discharging their functions in relation to the exclusion of pupils, to have regard to any guidance given by the Secretary of State. In the present case this includes the two circulars referred to in paragraph 6 above. The detail of the school's disciplinary powers and related functions is spelt out in the provisions set out later in this judgment.

Events

10

The careful judgment of Stanley Burnton J [2003] EWHC 1533 (QB), [2003] 4 All ER 1317 makes it possible to set out the material facts shortly for present purposes.

11

Lord Grey School is a larger-than-average comprehensive school specialising in modern languages. Its headteacher is Ms Despina Pavlou. The local education authority is Milton Keynes Council.

12

A was born on 21 April 1987 and so was 14 on 8 March 2001 when a fire was deliberately started in a room during the lunch hour. A, who admitted being present, was among the three pupils suspected of being responsible for it and excluded without any term being set. On 29 March they were all charged with arson. On 19 June the proceedings before the magistrates were discontinued for want of sufficient evidence.

13

The headteacher, who had been away on the date of the fire, had next day endorsed the deputy head's decision that the boys should stay away from school until it was known what the police were going to do. It was, however, not until 21 March that she wrote to A's parents to notify them that she was excluding A until the end of term, 5 April. Then on 25 April the deputy head wrote to A's parents, further excluding him until 15 May (the day after his SATS examinations). The letters did not give the legally requisite information about the right of access to the governing body.

14

During the whole of this time self-assessed revision work in English, mathematics and science was provided for A to do at home, and he was permitted to return to school between 8 and 14 May to sit the examinations (which he passed), but for no other purpose.

15

On 4 May the school completed a form referring A to the LEA, giving the date of referral as 25 May. The entry on the form explained that a court appearance was pending, and continued:

"Referral to Access Panel is requested as the Headteacher is not willing to negotiate transfer to another school at this stage given the circumstances and severity of the incident. If [A] is deemed to be innocent then the Headteacher will be willing to negotiate integration at that stage."

16

On 25 May the school wrote to A's parents to say that he was excluded for a further 20 days as from 14 May—that is, counting only school days, until 15 June. The letter went on: "We will continue to set work as appropriate and would ask that you make contact with the school to arrange it." This, evidently, did not happen. Again, proper information about access to the governing body was not given.

17

The legal maximum period of 45 days for a fixed-term exclusion expired on 6 June. On that date the school sent the referral form to the LEA. An accompanying letter said that the headteacher would prefer the boys to be referred to the access panel rather than to other schools, and that the school would be happy to discuss reintegration once the court case was over.

18

On 19 June, when the proceedings were discontinued, A and his brother went from the magistrates' court to the school to ask for his reinstatement. The headteacher said that she would arrange it as soon as she had written confirmation of the court's decision. When at the end of June she received official notification that the proceedings had been discontinued, she wrote to A's parents convening a "reintegration"...

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