Wallace v Secretary of State for Education
Jurisdiction | England & Wales |
Judge | Mr Justice Holgate |
Judgment Date | 27 January 2017 |
Neutral Citation | [2017] EWHC 109 (Admin) |
Date | 27 January 2017 |
Docket Number | Case No: CO/2970/2016 |
Court | Queen's Bench Division (Administrative Court) |
[2017] EWHC 109 (Admin)
IN THE BIRMINGHAM CIVIL JUSTICE CENTRE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Bull St, Birmingham, B4 6DS
The Hon. Mr. Justice Holgate
Case No: CO/2970/2016
Andrew Faux (instructed by The Reflective Practice) for the Appellant
Rory Dunlop (instructed by the Government Legal Department) for the Respondent
Hearing date: 13 December 2016
Approved Judgment
Factual background
The Appellant, Mr Greg Wallace, appeals under Regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 (SI 2012 No. 560 – "the 2012 Regulations") against a decision of the Respondent, the Secretary of State for Education, dated 25 May 2016 that a prohibition order be made under section 141B of the Education Act 2002 ("the 2002 Act"). The order imposes an indefinite prohibition on the Appellant from teaching in any school, sixth form college, relevant youth accommodation or children's home in England. The Respondent also decided to allow the Appellant to make a subsequent application under Regulation 16 for the order to be reviewed, rather than to deny any such opportunity altogether. However, the prohibition order must last for a minimum period of 2 years before any review may be sought. Regulation 8(3) of the 2012 Regulations provides that a prohibition order may not allow for any application for a review to be made earlier than two years from the date on which the order takes effect.
Between July 1999 and March 2004 the Appellant had been the company secretary of a specialist ICT company, C2 Technology Limited ("C2"). The Appellant was in a sexual relationship with TZ, the director of that company, prior to 2008, thereafter they remained friends until 2012 going on holidays together, and from 2012 onwards they were in a sexual relationship again. The Appellant was also involved with TZ through a business called Effective Marketing, an internet service to which teachers and schools could subscribe for a fee.
In 2007 the London Fields Primary School was placed in special measures because of poor performance and the Governing Body was removed. In 2008 the Appellant was the head teacher of Woodberry Down Primary School. On 25 July 2008 the two schools formed a "Federation" known as the Best Start Federation ("BSF"). The Appellant became the Executive Principal of the BSF. The relationships referred to in paragraph 2 above were not disclosed by the Appellant to the BSF during the material period.
In June 2009 the Appellant became the Executive Principal of another underperforming school, Mandeville Primary School. That school joined the BSF. In February 2011 the Appellant became the Executive Headteacher of Whitmore Primary School. That school joined the BSF in September 2011. A fifth underperforming school, Burbage Primary School, joined the BSF on 1 September 2011.
By this stage the Appellant had become a "Super head" with a considerable reputation for successfully raising standards in failing schools. He was seen as an inspirational educator, both for his pupils and his colleagues. Plainly, he was in a very influential position.
The five schools in the BSF paid to C2 between them sums totalling £1.073m over the period 2008 to 2013. In 2013 one particular invoice was picked up in an internal audit by the London Borough of Hackney ("LBH"), the local education authority. On 16 April 2013 the Council's Audit and Anti-Fraud Division ("AAFD") visited the five schools and removed documents relating to their finances. C2 controlled access to the email accounts of the schools' staff and Governors. The company denied AAFD access to those emails. On 17 April 2013 the Appellant contacted TZ who helped him to "clear down" email accounts in order to avoid emails being seen at that stage by the AAFD.
On 14 June 2013 the Appellant was interviewed by the AAFD. On 23 July 2013 he was suspended and told not to access his email account. He did, however, access that account and delete emails.
On 16 August 2013 the AAFD completed their report in which they concluded that there had been "major mistakes in the management and governance arrangements" at the BSF in contravention of Hackney's Financial Procedure Manual for Schools. On 15 October 2013 AAFD issued an addendum report dealing with the outcome of its further investigation as a result of obtaining from the BSF's IT supplier emails to which C2 had refused access. These emails gave an insight into the relationship between the Appellant and TZ and the way in which the Appellant had assisted TZ and C2 to win service level agreements from the BSF schools in preference to a former contractor.
On 18 December 2013 the Hackney Learning Trust held a disciplinary hearing in respect of the Appellant. He did not attend. By a letter dated 20 December 2013 the Trust informed the Appellant of its decision to dismiss him summarily for serious professional misconduct. They said (inter alia) that there had been little or no reasonable explanation as to why the Appellant had not included governors of schools in the process of awarding valuable contracts to one contractor, the Appellant had misused his official position to enable C2 to compete unfairly, and he had pursued malicious and vexatious grievances against certain individuals in order to delay and frustrate the disciplinary investigation. The disciplinary panel concluded that at that stage the Appellant had demonstrated a failure to understand the seriousness of his misconduct or to show insight. But it is significant that by the time of her decision letter nearly 18 months later, the Respondent found that the Appellant had fully acknowledged his errors and had "shown great insight into his actions."
In a letter to the Trust dated 8 February 2014 the Appellant announced that he would not appeal against the decision to dismiss him. Subsequently he continued to work in the teaching profession. The Respondent's decision letter of 25 May 2016 stated that the Appellant had taken on a valuable role in the Harris Federation and played a significant part in turning around failing schools so that there had been a substantial improvement both in pupils' attainments and the schools' OFSTED ratings.
The matter was reported to the National College for Teaching and Leadership ("NCTL"). The NCTL is an Executive Agency of the Respondent. It exercises a number of functions on behalf of the Secretary of State, including her responsibilities in Part 8 of the Education Act 2002 for dealing with misconduct by teachers. Mr. Rory Dunlop, who appeared on behalf of the Respondent, submitted that Parliament's intention in 2011 when enacting the present statutory scheme, was to replace the former General Teaching Council for England with a regime which would be democratically accountable through ministerial responsibility to Parliament (see paragraph 47 of the Respondent's skeleton). Mr. Andrew Faux, who appeared on behalf of the Appellant, agreed with that submission.
Following an investigation, it was found that the Appellant had a case to answer in respect of eight allegations which were referred by the relevant department within the NCTL to a professional conduct panel ("PCP") to consider the case and to make a report to the Respondent under the 2012 Regulations. The PCP dealt with the matter at a hearing which began on 16 May 2016. On 18 May 2016 the PCP announced which of the allegations it found to be proven and proceeded to hear evidence and submissions on sanction. The panel recommended to the Respondent that no prohibition order be imposed. However, in her decision letter dated 25 May 2016 the official acting on behalf of the Respondent disagreed with that recommendation and decided that a prohibition order should be imposed allowing for a review after a minimum period of 2 years. The order was subsequently served on the Appellant and it appears that it came in to effect on 2 June 2016. Since that date the Appellant has been unable to carry out any "teaching work" in England. He may not apply for the order to be reviewed until June 2018.
Legal framework
Section 7 of the Education Act 2011 ("the 2011 Act") provided for the abolition of the General Teaching Council for England. Section 8 enacted a new statutory code for dealing with misconduct by teachers in England, by inserting sections 141A to 141E and schedule 11A into the 2002 Act. The new scheme came into force on 1 April 2012.
Section 141B provides (in so far as material):
" 141B Investigation of disciplinary cases by Secretary of State
(1) The Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person to whom this section applies—
(a) may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or
(b) has been convicted (at any time) of a relevant offence.
(2) Where the Secretary of State finds on an investigation of a case under subsection (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the person.
(3) Schedule 11A (regulations about decisions under subsection (2)) has effect.
(4) In this section—
A "prohibition order" means an order prohibiting the person to whom it relates from carrying out teaching work
……"
"Teaching work" is defined in section 141A(2) and in regulations made thereunder.
Paragraph 1 of schedule 11A requires the Respondent to make regulations in accordance with the provisions of the schedule. The relevant regulations are the 2012 Regulations.
Paragraph 2 of schedule 11A requires the regulations to make provision about the procedure to be followed by the Respondent in reaching a...
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