England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2 Friday 24th August 2001

1. LORD JUSTICE SEDLEY: This application concerns the permanent exclusion of the applicant's son, Nicholas, from school on 11th March 1999. He was 12 at the time. He is now 15 and all those intervening crucial years of his schooling have been lost as a consequence of something which should never have happened.

2. The decision of the Headteacher of Nicholas's secondary school, St Christophers Church of England High School, to expel him was upheld by the school's governing body. On 31st May 1999, it was further upheld by the decision of an independent appeal committee set up by the local education authority.
3. The applicant, who is Nicholas's mother, went to solicitors. They went, very wisely, to the Commissioner for Local Administration, better known as the local ombudsman. After a full investigation of the appeal process which was the subject of the complaint, the local ombudsman found dramatically in the applicant's favour. I will explain what I mean by dramatically. Her report, which was dated May 2000, found not only that the appeal hearing had been procedurally flawed but (I quote from paragraph 82):

"In my opinion the conduct was not sufficiently serious to justify exclusion where there was no previous history of misbehaviour and no attempt had been made to try alternative ways of dealing with the situation such as a suspension for a fixed period. I do not accept that any Appeal Committee could reasonably conclude that exclusion was appropriate in these circumstances."

4. In the light of the fact that this had been a single case of verbal offence given by a previously model pupil, whose parents, as the school knew, were in the process of parting, and of the fact that the second ground for expelling him was that he had been disbelieved by the Headteacher about the reasons for the first ground (a form of injustice which even the prison system has had to eliminate from its rules), I find the ombudsman's conclusion entirely unsurprising.
5. The conclusion she reached in paragraph 85 was this:

"I consider it will be a waste of everyone's time to re-hear the appeal when [the applicant] has no intention of returning [Nicholas] to the school. To remedy the injustice caused by the Committee's decision it should ensure that all school records held on [Nicholas] include a copy of this report and its conclusions."

6. Nicholas was unable, for reasons that I do not have to go into, to find a satisfactory new school placement notwithstanding at least two offers. He has been educated, so far as he has been educated at all, at home in the interim.
7. If the ombudsman is right about the want of any factual foundation for the Appeal Committee's conclusion she must be right too about a similar want of foundation for the Headteacher's decision. But the school, it appears, has done nothing to retract, much less to apologise for, its action against Nicholas.
8. The applicant therefore seeks permission to apply for judicial review. Her written application does not make it entirely clear what she seeks to achieve but she explained to Moses J, who heard the application, and has explained again to me today that it is to obtain the formal quashing or expunging of the original decision of the school.
9. Moses J refused her permission for two reasons. The first was that the application was long out of time, not having been filed until March 2001. The second was that, even if time was extended, the applicant could achieve nothing practical, and it would place Mrs Slinger at risk of paying heavy costs if for some reason she lost.
10. In so far as Moses J's first reason was based on the applicant having gone to the local ombudsman and waited for the local ombudsman's report, I would accept for present purposes that it is challengeable. As Mrs Slinger says, judicial review is a remedy of last resort and recourse to the local ombudsman is in many cases and was in this case a sensible first step for which a person should not be penalised if they later come appropriately to the court. Going to the ombudsman may also turn out to be the only worthwhile step. That is a point to which I shall come in a moment. If however resort to the ombudsman turns out to be inappropriate because the issue, is truly a legal issue the ombudsman has power to say so and no further time need to be lost in coming to court. So, for my part, I am prepared not to count the delay up to May 2000 against Mrs Slinger at all.
11. From then until March 2001 when she lodged the application for judicial review she had difficulties, which I will not go through in detail, in securing legal advice and legal aid, the latter ultimately being refused to her on the ground of delay. In those circumstances I can see at least an argument for not holding the delay against Mrs Slinger and I will assume in her favour that the objections on the ground of lapse of time can be overcome.
12. So I turn to Moses J's second ground. The application which Mrs Slinger made to him was made on notice, and counsel instructed by Lancashire County Council appeared for the three proposed respondents. On express instructions before Moses J, he undertook on behalf of all three of them (the Headteacher of the school, the Chairman of the school's governors and Lancashire County Council, the local education authority) that all three of them would do what the ombudsman had recommended and would keep the ombudsman's report with Nicholas's school records.
13. As Moses J said at paragraph 6 of his judgment:

"There is now an independent review which has established that the exclusion was without justification. That will remain upon the records so that should anybody be interested they must bear that in mind.

It seems to me, therefore, that in many respects through her hard work this mother has achieved the very thing that the court's decision might achieve. She would be unlikely to do better and indeed could quite possibly do worse were she to try to get the court to say that the original view was irrational."

14. It seems to me, having thought about this with care and listened to Mrs Slinger's submissions, that Moses J was right about this. The papers without any doubt (and Mrs Slinger stressed this to me today) contain some alarming support for her case about the motivation of the decision to expel. I am aware of the importance of having school governors who will stand impartially between the staff and the pupil, precisely because of the pressures to which a Headteacher may be subject to from the staff room; and equally of the importance of an appeal committee doing so if necessary. Those who are calling in public for increased powers of expulsion for schools in the state sector, would do well to ponder on the present case.
15. But to say this is not to say that the applicant cannot lose the case that she wants to bring against the school. I have heard only one side. The cost to her, if she does lose, will be crippling. More important, however, is this fact. No victory in Court can give Mrs Slinger or Nicholas more than the combined effect of the local ombudsman's report and the undertaking which the lawyer for the head, the governor, the chairman and governors and the local education authority gave in open court to Moses J. No order that any court makes can rewind the film to a point more than 2 years ago when Nicholas was a bright and successful pupil. Nor can it make it unnecessary, for the present or the future, for Mrs Slinger to recount to any new school to which Nicholas applies what happened to him in 1999 and why he is now looking for a new school.
16. The important thing is that the local education authority and any new school should know that the ombudsman has found the expulsion in 1999 to have been unfounded. Mrs Slinger is understandably concerned that even so, any new school to which she applies (and it is clearly essential that Nicholas should be back in school this September) is going to hold the expulsion against him.
17. I am perfectly prepared to say in open court that no school would be justified in doing any such thing and that the local education authority should make it absolutely clear to its schools that this is so. This boy is entitled to be treated as if he had not done anything deserving of expulsion at an earlier stage, and to be accommodated in a new school where he can fulfil his potential which I have no doubt that he still has, even though it has been frustrated by the untoward and unacceptable events of 1999.
18. I direct that my remarks be transcribed at public expense so that Mrs Slinger has them in her hand and can make them available to anybody who has a legitimate interest in seeing them. She knows who that might be. Beyond this I cannot help her. Moses J was in my view right, as much in Mrs Slinger's and in Nicholas' interest as in everybody else's, to say that judicial review, even if it were in time, could achieve nothing more.
19. For those reasons this application has to be refused. But I hope that it has afforded Mrs Slinger and Nicholas some of the help that they came here to get.