COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE BURTON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MAURICE KAY
|- and -
THE GOVERNING BODY OF PARK VIEW ACADEMY & ANR
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr O Hyams (instructed by Messrs Haringey Council) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Carnwath:
"…with a view to a staggered re-instatement, with O back into full-time education by half term".
"… though it was reasonable for the school to consider permanent exclusion, it was felt that a long fixed term exclusion would have been the most appropriate sanction in this instance."
"I would have ignored my concerns described above and organised the Claimant's reintegration of the pupil into School, if there had been no threat in industrial action by at least the teaching staff of the School. However, on 16 October 2006, the representative of the School of the NUT sent the following message by e-mail to all of the staff at the School, not just members of the NUT:
"The meeting last week voted unanimously to call for a ballot not to teach or supervise the student who was reinstated on appeal after assaulting a member of the staff…'"
"Shortly after the NUT's meeting, where a unanimous vote was taken, I discussed the situation with the NUT representative at the School. He said that the Union's members felt very strongly about the matter. The vast majority of the teaching staff at the School are members of the NUT."
(I understand that 55 per cent of the teaching staff of 82 are members of the NUT.)
"Given the situation, in October 2006, I formed a clear view that if I directed the teaching staff of the School to teach the Claimant as if he had not been excluded, then their associations would hold one or more ballots and they, or at least most of them would vote in favour of industrial action. They would then refuse to teach him. I therefore concluded that the only way in which I could ensure that he received any education at the School would be to have him educated in a room on his own."
"…more than twice as much the money than the School received for the Claimant's education and is the most expensive provision offered to any student at the School who does not have a statement of special educational needs."
"…I should say that a ballot concerning the possibility of industrial action was in fact not held because O and his family were prepared to go down the route of him getting him educated primarily at the College, with individual tuition to supplement it. Initially, they were not prepared to do so. I therefore wrote to them on 19 October 2006. I also made it clear to them that if the Claimant were educated at the School, then he would be educated in a room on his own. They then opted for the provision at the college."
"Held, dismissing the appeal, that 'reinstate' within Section 67 of the 1988 Act connoted restoration of the legal relationship between of the school community, not as a mere formality but as the resumption of a status which carried with it statutory and common law obligations owed by the school to all its pupils; that, since the panel's jurisdiction under Section 67 was confined solely to the question of whether permanently excluded pupil should be reinstated, any direction it made was expressed in neutral terms, irrespective of the base on which the decision had been reached, and without conditions to the manner in which reinstatement might be managed; that it was for the head teacher and the governors, having performed their duties and complied with the direction, and taking account of their countervailing obligations, in particular to other pupils and staff, to make appropriate arrangements thereafter for the pupils' management within the school community; that, having regard to the Divisional Court's finding of good faith in the circumstances, including the teachers' threat of action, L had been reinstated within the statutory meaning. the regime thereafter imposed on him was a permissible response consistent with treating him as a pupil at the school, and that, accordingly the headteacher's and governors' action had not been unlawful."
"The school pupil relationship has to be reinstated and the responsibility and obligation of the school towards the pupil resumed. How well those responsibilities and duties are thereafter performed by the school is a separate question unless the resumption can be shown to be a sham or to be so nugatory as to evince an intention not in truth to resume at all. The test is stringent and is directed to realities not mere formalities. But anything less than this is a failure of the performance of those duties, not a failure to reinstate."
He thought that the real complaint was not about reinstatement, but about the failure thereafter to reintegrate him fully into the social life of the school, which in Lord Hobhouse's view was not relevant to the question of reinstatement. At paragraph 48 he made clear that the question of the regime thereafter was:
"…A matter of making educational and managerial choices which is a matter for the school and lies wholly outside the jurisdiction of the independent panel and the scope of its decision."
"There are two sides to the spectrum. One was that the school must be restored to the status quo ante in all respects. The other, on the opposite side of the spectrum, was that all that would be needed would be a formal re-acceptance by the school in responsibility for the pupil, by, for example, replacing his name on the school role. My Lords, I would reject both of those extremes. As to the formal reacceptance by the school of responsibility, that acceptance would certainly be necessary but not sufficient. The formal reacceptance would have to be accompanied by treatment of the pupil that was consistent with his or her status as a pupil of the school. Otherwise the reacceptance would be meaningless."
"On this view of the case the real issue is not a precise meaning to be attributed to the word "reinstate" in section 66 and 67 but as to the lawfulness of the head teacher's response and the difficulties confronting him. In my opinion, his response cannot be characterised as unreasonable and disproportionate and accordingly, was lawful."
So, one sees there a clear distinction between the question of reinstatement, on which as I read him he was entirely at one with Lord Hobhouse, and the question of the management of the regime thereafter, which was a question of reasonableness and proportionality.
"Despite the fairly extensive argument developed by Miss Booth I consider that it is indeed a fairly short point, and that Henriques J and the Court of Appeal (following Richards J in R(C) v Governors of B School  ELR 285) were right in their conclusion that it means simply that a pupil ceases to excluded from the school in question….
But it is not a mere formality. It is in this context a symbolic act with very important legal consequences. It restores the legal relationship (discontinued by permanent exclusion) between the school community and the individual pupil and it brings back into force the web of statutory and common law obligations which the school owes to all its pupils, including the reinstated pupil."
"No attack has been made on the good faith of either the head teacher or the governors. They had the responsibility, on the appellant's reinstatement, of managing his return to the school in the interests of the appellant, the other pupils, and the whole school community. Having regard to all the factors which I have mentioned, I consider that their decision, although ill-advised in depriving the appellant of any normal contact with his fellow-pupils, was not so disproportionate as to go beyond the limits of their managerial and pastoral discretion."
He made some other comments about the effect of the threatened industrial action, which I shall need to come back to in the context of the third ground of appeal.
"(6) On such an appeal the appeal panel may -
(a) uphold the exclusion;
(b) direct that the pupil is to be reinstated (either immediately or by a date specified in the direction), or
(c) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction."
Regulation 7 says that "[the] body shall have regard to any guidance given from time to time by the Secretary of State".
"30. In my judgment the maintenance of the regime must be regularly tested, and it reasonableness and the reasonableness of its continuation depend upon the facts. On the evidence before me the imposition of the regime was reasonable in all the circumstances. It might well have been that there would have come a time when it became unreasonable to continue that regime. However, it is quite plain that the industrial difficulties which the school faces preventing complete reinstatement continue as of now. I conclude that the imposition of the regime was not unlawful, and that, accompanied by the without prejudice undertaking, the continuation remains lawful."
"It is accepted on behalf of the appellant that the threat of industrial action was not an irrelevant consideration. I think that it was a most regrettable event, especially when coupled with the teachers' refusal even to consider the contents of the independent appeal panel's decision. The teachers' reaction was irresponsible and unprofessional, however exasperated they were at the turn of events. Nevertheless it is common ground that there was trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 and a regular ballot on industrial action was held. The teachers' action was deplorable but it cannot to my mind detract from the lawfulness of the governors' decision."
"If such a substantial majority on the NUT has indeed unanimously so voted so as to bind their colleagues, then that position must, in my judgment, be respected, unless it can be shown to be a sham. Mr Squires has suggested that the Headteacher ought to have made more enquiries of the NUT. There was no evidence direct from the NUT before me … However, I see no reason to doubt the strength of feeling which has obviously arisen."
"The union remains willing to reach a negotiated settlement from the current dispute."
"In relation to any maintained school and any school year-
the local education authority and the governing body shall exercise their functions with a view to securing, and
(b) the head teacher shall secure,
that the National Curriculum for England as subsisting at the beginning of that year is implemented."
"In respect of a registered pupil at the school that, for such period as may be specified in the direction (the "operative period" of the direction), the National Curriculum for England-
(a) shall not apply, or
(b) shall apply with such modifications as may be specified in the direction."
"The best endeavours would include such endeavours to find a teacher within the school … but inevitably subject to the fact that such would not include NUT members … or, possibly, ATL members."
"… it is submitted that an individual pupil should not be able to enforce such duty as may be owed to an individual pupil in relation to the National Curriculum by means of a mandatory order, unless the head teacher is not doing all that he or she reasonably could do to comply with that duty: cf R v Inner London Education Authority ex parte Ali  2 Admin LR 882, 828B, where Woolf LJ held that the statutory duty which is now imposed by section 14 of the Education Act 1996 on a local education authority to 'secure that sufficient schools for providing – (a) primary education, and b) education that is secondary education by virtue of section 2(2)2(a), are available for that area' is a 'target' and not an 'absolute duty'."
"Furthermore, even where there is a breach of s.8 the court in their discretion may not intervene if by the time the matter comes before the court the local education authority is doing all it that it reasonably can to remedy the situation. The situation is best left in the hands of the bodies to whom Parliament has entrusted performance of the statutory duty, if they are seeking to fulfil that duty."
Lord Justice Maurice Kay:
Sir Anthony Clarke, MR:
It is in this connection important to note that the essential cause of the disruption was the NUT's threat to take industrial action. The head teacher made it clear in his evidence that but for that threat he would have, as he put it, reorganised O's reintegration into the school.
Order: Application refused.