R (S (A Child)) v Brent London Borough Council; R (P (A Child)) v Oxfordshire County Council Exclusions Appeals Panel ;
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann |
| Judgment Date | 17 May 2002 |
| Neutral Citation | [2002] EWCA Civ 693 |
| Docket Number | Case No: C/2001/1124 (“S”) C/2001/1309 (“P”) |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2002 |
[2002] EWCA Civ 693
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR. JUSTICE SCOTT-BAKER
MR. JUSTICE NEWMAN
MR JUSTICE TURNER
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Sedley and
Mr. Justice Charles
Case No: C/2001/1124 (“S”)
C/2001/2083 (“T”)
C/2001/1309 (“P”)
Murray HUNT (instructed by Ashok Patel & Co.) for “S”
Murray HUNT and Oliver HYAMS (instructed by Ashok Patel & Co.) for “T”
David WOLFE (instructed by Levenes) for “P”
Peter OLDHAM (instructed by Legal Services, London Borough of Brent) for “S”
Oliver HYAMS (instructed by Legal Services London Borough of Brent) for “T”
Nigel GIFFIN (instructed by Legal Services, Oxfordshire County Council)
Clive LEWIS (instructed by Treasury Solicitor) for the Secretary of State.
Introduction
1. This is a judgment of the court to which each of us has contributed. We have heard three appeals together. All the appeals relate to the permanent exclusion of pupils from school. In each case the Governing Body of the school decided not to reinstate them at their school and the appeal to the Appeal Panel against the decision of the Governing Body failed. The present proceedings relate to the decisions of the Appeal Panels which were challenged by the parents by way of judicial review. In each case the judge dismissed that application. In each case the parents have appealed to us. The three days that these matters took in front of us is thus the fifth occasion on which they have been examined – on 3 occasions by people concerned with education, the head teacher, the Governing Body and the appeal tribunal, and on two occasions by the courts.
2. The Queen (S) v The LB Brent [2002] ELR 57, which we shall refer to as Re S, concerns a 16 year old boy (S) with a troubled background who lived with his grandparents. He was permanently excluded after a serious fight with another boy C. The fight took place on 2 October 2000. C was excluded for three days. S does not, and did not, dispute that a serious fight took place. The contentions which relate to the individual facts of this case are that:
(a) the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of Guidance issued by the Secretary of State (“the Guidance”),
(b) having regard to the overall role of the local education authority (“LEA”) the written and oral representations of the Exclusions Officer of the LEA (Easter Russell) to the Appeal Panel give rise to an appearance of bias, or are otherwise improper,
(c) the Appeal Panel failed to give proper regard to S's mitigating circumstances (which is both a freestanding point and part of the argument relating to (a)), and
(d) the Appeal Panel failed to comply properly with paragraph 16 of the Guidance when considering and comparing the position of the other pupil involved in the fight.
3. The Queen (B) & ors v Alperton & ors [2001] ELR359. This judgment concerned three cases. The part thereof under appeal concerns the case of The Queen (T) v the Head Teacher of Wembley High School and others. We shall refer to it as Re T. It concerns a 12 year old boy (T) who, following a warning for misbehaviour given in December 1999, was permanently excluded from school for misconduct on 24 January 2000. T disputed that the misconduct for which he was permanently excluded took place. The misconduct alleged was that T had attacked a fellow pupil and had punched and pulled the hair of a teacher who had come to the classroom to assist in the situation that had developed. The contentions which relate to the individual facts of this case are that:
(a) the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance,
(b) having regard to the overall role of the LEA the written and oral representations of the Exclusions Officer of the LEA (Easter Russell) to the Appeal Panel give rise to an appearance of bias, or are otherwise improper, and
(c) the Appeal Panel failed to allow questioning of the teachers involved in the incident.
4. The Queen (P) v Oxfordshire CCEAP and SSEE [2001] ELR 631, which we shall refer to as Re P, concerns a 13 year old boy (P) who has special educational needs and who had received a written warning as to his conduct by a letter dated 12 April 2000. The incident leading to his exclusion on 9 June 2000 involved a threat by P to another boy using a replica gun. P disputed the misconduct for which he was permanently excluded. The contention which relates to the individual facts of this case is that the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance.
5. It follows that:
(a) the contention that an Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance is raised in each appeal;
(b) the issue of whether improper representations were made by the Exclusions Officer of the LEA is raised in both Re S and Re T (no representations were made by an Exclusions Officer in Re P); and
(c) further specific points are taken in Re S and Re T.
The statutory Background
6. The most relevant provisions are to be found in the School Standards and Framework Act 1998. The broad scheme of the legislation is that no pupil can be excluded unless his head teacher decides to exclude him. Where a head teacher decides on exclusion he must inform the discipline committee of the Governing Body. The discipline committee must consider whether to re-instate the pupil. Before concluding their consideration the discipline committee must consider any representations made by the parents and by the LEA. If the Governing Body decides not to re-instate the pupil his parents can appeal to an appeal panel. The appeal panel must be willing to receive representations from the parents, the head teacher, the LEA, and the Governing Body. The head teacher, the Governing Body, the LEA and the Appeal Panel must have regard to guidance given by the Secretary of State. The main statutory provisions are annexed.
The Guidance
7. The Guidance has been modified from time to time, was at the relevant time contained in three documents and is currently once more the subject of consultation. The primary source is Circular 10/99. This was issued in July 1999, amended in January 2000 and in part replaced in August 2000. The effect of the January 2000 amendment was to widen the circumstances in which a pupil could be excluded consistently with the policy set out in the Guidance. The effect of the August 2000 replacement was to change the Guidance in relation to Appeal Panels. The more important parts of the three documents which between them contained the Guidance are annexed.
The Law : The Appeal Panels
8. Before coming to the factual detail of these appeals we will set out what we consider to be the material principles of law to be derived from the foregoing and other sources. If we do not set out the full and scholarly arguments presented to us by all six counsel, it is not out of disrespect but because these are addressed, so far as appropriate, in our conclusions on the law.
9. The right to education, which is one of the Convention rights scheduled to the Human Rights Act 1998, is not a right to be educated in any particular school. So far as the latter entitlement exists, it is by virtue of either or both of legitimate expectation and of Regulation 9 of the Education (Pupil Registration) Regulations 1995. Permanent exclusion, which is an acknowledged exception to both, has a radical impact on the choice of school, the continuity of schooling and the future prospects of the pupil. The injury capable of being done by it to a child's socialisation and self-esteem is incalculable. It is estimated that about half the male prison population has been the subject of permanent exclusion from school. Equally, schools cannot function as places of learning and social development in an ambience of violence or abuse, whether directed at teachers or at other pupils, or of misconduct or disorder. Pretty well every decision about exclusion is a negotiation between these anxious and competing considerations.
10. Until the Education (No 2) Act 1986 there was no recourse against exclusion beyond the Governing Body. The Appeal Panels which LEAs were required to set up under that Act were subject to no ministerial guidance or other central direction. The different scheme now contained in ss. 64–68 of and Sch. 18 to the School Standards and Framework Act 1998 can, we think, be characterised in the following way.
11. First, it creates a tribunal which has the hallmarks of an independent adjudicative body. The Panels have the final say on a matter of critical importance to pupil, school and society, and they are carefully constituted to ensure that they are independent of the school, the pupil and the LEA. One has only to read the scrupulous provisions about eligibility contained in paragraph 2 of Sch. 18 to see how central Parliament intended their independence and impartiality to be. They are scheduled to the Tribunals and Inquiries Act 1992 and so are subject to the supervision of the Council on Tribunals. For reasons touched on above, it is accepted by Mr Hunt that the Panels are not what one might call article 13 bodies – that is to say bodies but for the existence of which the United Kingdom would be in breach of its Convention obligation to provide an effective remedy for breaches of a Convention right. His and Mr...
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