R(L (A Minor)) v Governors of J School
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD HOBHOUSE OF WOODBOROUGH My Lords,LORD SCOTT OF FOSCOTE,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 27 February 2003 |
| Neutral Citation | [2003] UKHL 9 |
| Court | House of Lords |
| Date | 27 February 2003 |
[2003] UKHL 9
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
My Lords,
This appeal concerns the meaning and effect of "reinstate" and "reinstated" in section 67 and related provisions of the School Standards and Framework Act 1998 ("the 1998 Act"). The issue raised is one of importance not only to individual pupils but also to local education authorities, school governing bodies, head teachers, teaching staff and parents.
The effective appellant is L, who appears in these proceedings by his father and whose anonymity has been preserved by court order. L was aged just 16, and was embarking on the second term of his GCSE year, when on 22 January 2001 he was (to some extent) involved, with others, in a violent and injurious assault on a fellow pupil in the same year. The assault took place at the J School, which they all attended. On the following day L's head teacher excluded him permanently from the school. In a letter dated 23 January the head teacher notified L's parents of his decision and the reasons for it, stating that L had "kicked the victim several times". The governing body of the school (who are the respondents in these proceedings) reviewed the head teacher's decision at a hearing on 2 February 2001, when L's parents were heard, but the head teacher's decision was upheld and L's parents were promptly informed. They then appealed to an independent appeal panel which heard the appeal on 9 March 2001. The appeal panel allowed the appeal and directed that L should be reinstated immediately. As explained in a letter dated 12 March 2001 to L's parents, the decision to allow the appeal was based on several grounds: there had been significant deviations from recommended investigative procedures; there was concern that other pupils involved in the incident had not been permanently excluded, raising a question whether pupils had been treated equally; there were discrepancies and inconsistencies in the evidence; the evidence did not suggest that L had been involved to the same degree as other excluded pupils; on the balance of probabilities the appeal panel concluded that L had not been guilty of the specific behaviour of which he had been accused in the head teacher's letter (kicking the victim several times); permanent exclusion was not an appropriate response. During the hearing L told the appeal panel that he had aimed a kick at the victim, but had missed. He had no record of fixed term exclusions, and the head teacher believed him normally to be an honest pupil.
A meeting was held between the head teacher, the chairman of the governing body and L's parents on 20 March 2001, when the head teacher told the parents that the teachers at the school were unwilling to teach or supervise L and were balloting on industrial action, but that L was reinstated on the school roll. The meeting ended prematurely when L's parents left. The parents understood the head teacher to have said at the meeting that L "would not be allowed to return to the school between now and his GCSEs later this year", and they instructed solicitors who wrote on 21 March threatening proceedings. The head teacher replied by return, saying that he had made it clear to L's parents that L had been reinstated on the school roll and the school was now responsible for his continuing education. The purpose of the meeting, he said, had been to discuss how the school proposed to discharge both its obligations to L and its obligations to other pupils and members of staff.
On 23 March 2001 the head teacher wrote to L's parents in these terms [as anonymised]:
"Further to our discussion of Tuesday, 20 March, I am writing to provide details of [L's] reinstatement into the [….] School.
Given the circumstances which I outlined to you at our meeting specific arrangements are being made to provide for [L's] education at the School.
I have a duty to the health and safety of all children in the School and in the light of this I have arranged with the Local Education Authority that [L] has alternative provision made for his transport to and from School.
For the week beginning 26 March this will comprise a dedicated taxi from your home to the School and back.
[L] will be provided with work and a teacher in a room isolated from the mainstream of the School. He will not return to the classroom but will be taught privately. He will not be allowed to circulate with other pupils at any stage in the school day.
[L] should report directly to the reception area of the School on Monday morning and on each morning thereafter. He must not mix with pupils or students at any point in the school day, including the start and finish of the school day".
On L's return to school on Monday 26 March he was given a document bearing the name of the school and signed by the head teacher which, as anonymised, read:
"Requirements Relating to the Conduct of [L] Upon his Return to [school]
1 All work will be undertaken under supervision in the Parlour at the reception area of the school
2 There will be no contact at all with other members of the school community at any time in the course of the school day or in the journey to and from school
3 Morning breaks and lunch breaks will be spent in the parlour. Provision will be made by the school for lunch
4 The only toilet facilities to be used are in the reception area
5 In the event of a fire drill [L] and his supervisor will go to the area outside the school chapel
6 [L] is to report directly to the main reception area immediately upon arrival at the school. Other entrances may not be used".
Failure to keep any of these requirements will be considered a serious breach of school discipline and will result in permanent exclusion".
L did not rejoin mainstream classes at the school. He spent the school day in a room about 10 feet square, initially as the only pupil until he was joined by another pupil who had also been excluded over the same incident but whose appeal to the appeal panel had also succeeded. L was told that he must remain in the room (save for toilet breaks) throughout the day. He was not permitted to speak to or associate with any other pupil (until joined by the other pupil, and then only to and with him), or to staff members save for his supervisor and any other staff member who wished to visit him. He took his GCSEs in a different room from other pupils. He was not allowed to participate in communal acts of worship.
A maths teacher who had taught at the school before retirement but was not a trade union member was engaged to supervise L (and, in due course, the other pupil) and also taught him (and the other pupil) maths. Otherwise L received no face to face tuition, although teachers in other subjects set work and marked it. Evidence from the school suggested that this regime had proved beneficial to L's educational performance, but this was a view strongly challenged on behalf of L.
In a letter of 19 March 2001, the Association of Teachers and Lecturers (one of the trade unions with members among the teaching staff) told the school of its intention to hold a ballot on 27 March on industrial action in connection with the teaching and supervision of L. In a letter of 20 March a second union with members at the school, the National Association of School Masters/Union of Women Teachers, followed suit, giving notice of a ballot to be held on 28 March. Both ballots were duly held. Eight of the nine ATL members balloted by the ATL supported industrial action short of a strike, the only course of action on which the ballot was taken. Of twenty five NASUWT members, asked whether they were prepared to take part in either strike action or industrial action short of a strike in furtherance of the dispute concerning the head teacher's direction to teach L, only a minority favoured the former but all of the twenty four who responded favoured the latter course. The summer term was due to begin on 23 April 2001 and on that day the head teacher attended meetings first with the members of the staff who were union representatives, when it was indicated what members were and were not willing to do, and then with the chairman of the governing body and regional officers of the unions. It was indicated by the regional officers that the action balloted upon would be continued indefinitely. It was common ground in this case that, but for the decision of the teachers and the teaching unions to refuse to teach or supervise L, he would have been reintegrated into ordinary classroom life.
The statutory and regulatory framework
The public educational system in England is underpinned by two reciprocal obligations. First, an obligation is placed on the parent of every child of compulsory school age to cause that child to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have, either by regular attendance at school or otherwise (Education Act 1996, "the 1996 Act", section 7). This obligation is complemented by an obligation placed on local education authorities to secure that there are enough schools in their area to provide primary and secondary education of sufficient variety for pupils of different ages, abilities and aptitudes (the 1996 Act, section 14). Local education authorities must also arrange for the provision of suitable education at school or elsewhere for school age children who have been excluded from school (the 1996 Act, section 19(1)) and schools established for this purpose are known as "pupil referral units" (the 1996 Act, section 19(2)).
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