R (S (A Child)) v Brent London Borough Council; R (P (A Child)) v Oxfordshire County Council Exclusions Appeals Panel ;

JurisdictionEngland & Wales
JudgeMR JUSTICE SCOTT BAKER
Judgment Date09 May 2001
Neutral Citation[2001] EWHC 384 (Admin)
Docket NumberCO/295/2001
CourtQueen's Bench Division (Administrative Court)
Date09 May 2001

[2001] EWHC 384 (Admin)

IN THE HIGH COURT OF JUSTICE

(ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand

London WC2

Before:

Mr Justice Scott Baker

CO/295/2001

The Queen on the Application of
“S” (A Minor who proceeds by way of his Grandmother and Litigation Friend “PM”)
and
(1) London Borough Of Brent
(2) Secretary Of State For Education
(3) The Independent Appeal Panel Of Brent

MR M HUNT (instructed by Ashok Patel, 257 Balham High Road, London SW17 7BD) appeared on behalf of the Applicant.

MR P OLDHAM (instructed by Trivedy & Virdi, 52 Lower Clapton Road, Hackney, London E5 0RN) appeared on behalf of the 1st and 3rd Respondents.

MISS E LAING (instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the 2nd Respondent.

MR JUSTICE SCOTT BAKER
1

This case concerns the exclusion from school of S. S is 16. He has a sad background. His parents separated early in his life, and both of them ended up serving prison sentences. S was taken into the care of the London Borough of Camden. At the age of two, he was placed with his paternal grandparents under a residence order. He did well at primary school and in September 1996 started at Wembley High School. Matters were satisfactory to start with, but then he became unhappy. He was involved in fights and he was bullied.

2

In October 1999, S's mother died, at the age of 32, of a heart attack. He was devastated. His grandmother discussed the situation with Ms Easter Russell, the Exclusions Officer for the London Borough of Brent. They agreed that it would be a good plan if S moved schools, and he moved in January 2000 to the John Kelly Technology College for Boys. At first this resulted in a big improvement for S, but the improvement did not last. He was the subject of two temporary exclusion orders, the first from 10th to 16th May 2000, for verbally and physically threatening a teacher and a student; the second between 14th and 19th September 2000, for similar conduct.

3

Then on 2nd October 2000 occurred the incident that led to the permanent exclusion which is the subject matter of this case. The incident involved a boy called C. It began with paper darts being thrown and, apparently, the claimant being threatened with a lighter. The next thing that happened was that C stabbed S, the claimant, with a pencil, and this drew blood from his stomach region. There followed a fight, in the course of which S stabbed C with a screwdriver. Teachers intervened to try and get the boys to stop. S would not stop, but the other boy did. As a result of this incident, the other boy, C, was given a fixed term exclusion of three days, and S was excluded permanently.

4

The headmaster made that decision in S's case on 9th October last year, and the decision was upheld on 1st November by the Governing Body. S appealed to the Independent Appeal Panel of the Brent Council. His appeal was dismissed on 23rd November last year. It is that decision that gives rise to this application for judicial review.

5

For some time S has been supported by a charity called Turnaround, and indeed representatives of that charity helped him with the appeal.

6

I turn now to the law. The relevant law is to be found in the School Standards and Framework Act 1998. Sections 64 to 68 are headed “Exclusion of Pupils”. Section 64 sets out the power of a head teacher to exclude pupils. Section 65 provides for the giving of information to parents, and other matters in relation to exclusions. Section 66 sets out the functions of the Governing Body in relation to excluded pupils. Subsection (2) says:

“The governing body shall in any such case -

(a) consider the circumstances in which the pupil was excluded;

(b) consider any representations about the exclusion made to the

governing body -

(i) by the relevant person in pursuance of section 65(1)(c) or

2(b), or

(ii) by the local education authority;

(c) allow each of the following, namely -

(i) the relevant person, and

(ii) an officer of the local education authority nominated by

the authority, to attend a meeting of the governing body and to make oral representations about the exclusion…”

7

It will be apparent that the local education authority is involved in the process.

8

Section 67 deals with appeals against the exclusion of pupils. It provides:

“(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority.

(2) Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4) ‘appeal panel’ means an appeal panel constituted in accordance with paragraph 2 of that Schedule.”

9

Section 68 is headed “Exclusion of pupils: guidance”. Section 68(2) requires an appeal panel to have regard to guidance given by the Secretary of State. It says specifically:

“In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.”

10

As will already have become apparent, schedule 18 of the Act is of relevance in relation to appeals against exclusions. I shall read certain material paragraphs. Paragraph 1 sub-paragraph (2):

“Any notice in writing given by the relevant person to the local education authority which states that he does not intend to appeal against a decision not to reinstate the pupil shall be final.”

11

Paragraph 2, headed “Constitution of appeal panels”:

(1) An appeal pursuant to arrangements made by a local education authority under section 67(1) shall be to an appeal panel constituted in accordance with this paragraph.

(2) An appeal panel shall consist of three or five members appointed by the authority from -

(a) persons who are eligible to be lay members; and

(b) persons who have experience in education, are acquainted with educational conditions in the area of the authority or are parents of registered pupils at a school.

(3) Of the members of an appeal panel -

(a) at least one must be a person who is eligible to be a lay member and is appointed as such; and

(b) at least one must be a person falling within sub-paragraph (2)(b).”

12

It will be apparent that the legislature is clearly making an effort to ensure a panel of an independent nature, but also a panel that is apprised of the type of circumstances with which it is likely to be dealing. It is also apparent from schedule 18 and the other provisions of the legislation I have read that the local education authority has a significant role in the setting up and arranging of these panels.

13

Under section 68(2) the Secretary of State issued new guidance dated 4th August 2000 which amended pre-existing guidance. That new guidance, therefore, covered this appeal. The purpose of the guidance, which was sent to all Chief Education Officers in England, was, inter alia, it seems to me, to ensure that a firmer line was taken against reinstatement of certain pupils. The guidance is to be found at page 30 of the claimant's bundle. In fact, page 30 is not the guidance itself but the covering letter. The material parts of the covering letter read:

“The Secretary of State has made clear that head teachers must have the power to exclude violent or very disruptive pupils who prevent other pupils from learning, or who threaten the health and safety of themselves or others at the school. Local education authorities have an important role in making sure that the exclusions process operates correctly, and in setting up independent appeal panels to consider appeals against permanent exclusions.

It is vital that an appeal panel takes into account the impact on other members of the school of re-instating a permanently excluded pupil. The revised guidance makes clear (paragraph 17 and 18) that the Secretary of State would normally regard it as inappropriate for an exclusion appeal panel to re-instate a pupil who has been permanently excluded for:

• serious actual or threatened violence against another pupil or a member of staff; or

• sexual abuse; or

• presenting a significant risk to the health and safety of other pupils by selling illegal drugs;

or

• persistent and malicious disruptive behaviour – including open defiance or refusal to conform with agreed school policies on for example, discipline or dress code.”

14

Paragraph 16 of the guidance provides:

“In considering an appeal, the panel should decide whether the pupil actually did what they are accused of doing.”

15

Then it goes on to say that:

“…then the panel should decide whether permanent exclusion is a reasonable response to that conduct. Relevant factors that must be taken into account include:

• whether permanent exclusion was used in accordance with the Secretary of State's guidance – where there is doubt the appeal panel should direct re-instatement;

• the broader interests of other pupils and staff in the school, as well as those of the excluded pupil;

• the school's published discipline policy;

• the fairness of the permanent exclusion in relation to the sanctions imposed on any other pupils involved.”

16

Then at paragraph 18:

“The school is responsible for promoting good behaviour and discipline on the part of its pupils and for securing an orderly and safe learning environment for its pupils and staff. In deciding whether to direct re-instatement, therefore, the panel must consider the impact that it may have on other members of the school. The Secretary of State would normally regard it as inappropriate to re-instate a pupil who has been...

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4 cases
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