England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
His Honour Judge Gregory
Case No. 9ST00019

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2011

Lord Justice Leveson:

1. Can employment to provide children with techniques to deal with emotional and behavioural difficulties constitute being employment 'in the capacity of a teacher' or should it properly be described in some other way not incorporating the concept of teaching? The answer to this question is critical to the determination of the issue in this case which, more formally characterised, is whether the respondent local authority was entitled to transfer the appellant from the Teacher's Pension Scheme ("TPS") as defined by s. 9 of the Superannuation Act 1972 ("the 1972 Act") into the Local Government Pension Scheme ("LGPS") on the grounds that she did not qualify for the former. On 30 June 2010, in the Coventry County Court, His Honour Judge Gregory dismissed the appellant's claims for a declaration that she was entitled to be admitted to the TPS and for damages. With the leave of Rix LJ, she appeals against this decision.

Background

2. The background to this dispute can be shortly summarised. In 2003, when the local authority set up a service to provide counselling in mainstream LEA schools to children with emotional and behavioural difficulties, an issue arose between the Deputy Head of Personnel in the Directorate of Children's Services and the head of Counselling Services (supported by the Senior Leader for Inclusion for Children and Families) as to whether counsellors could be categorised as teachers. In an attempt to clarify the role, in February 2004, in the Recruitment Job Description, the job title ("Educational Counsellor") was amended by the head of Counselling Services to "Specialist Peripatetic Teacher - Counselling". The document goes on:

"Main Purpose of the Job:

1. To work with schools, parents, key agencies and directly with the children and young people with mental health concerns and/or emotional and behavioural difficulties to ensure effective and successful inclusion of pupils attending mainstream school.

2. To work with pupils individually, or in groups, delivering teaching in emotional, behavioural and cognitive education through the facilitative and co-operative therapeutic medium of counselling. This confidential counselling is delivered on the school premises, during school hours, from specialist teachers who are also qualified counsellors....

Main Activities:

"1. To enable access to learning and social opportunities for pupils with mental health concerns and or emotional and behavioural difficulties. This is through the delivery of teaching using therapeutic interventions, support, advice and training to schools, families and children and young people... "

3. The view of Personnel remained unchanged and, because of the significance of the issue in relation to membership of the TPS, the matter went before John Freeman, the Director of Education and Lifelong Learning. On 17 September 2004, he wrote to members of the Education Counselling Service (copied to the representative of the National Union of Teachers):

"The work carried out by colleagues in the Education Counselling Service is in my judgment ancillary to teaching, rather than being teaching of itself. It is therefore my decision to designate these posts as 'organisers' within the meaning of the regulations and therefore to apply the provisions of the Local Government Pension Scheme rather than seek admission to the Teachers' Pension Scheme. "

4. An attempt was made to persuade Mr Freeman to change his mind but he maintained that the position was "absolutely clear and not subject to lengthy discussion". His e mail of 10 October 2004 went on:

"Essentially, there is a single simple test - does the colleague concerned engage "largely or wholly in 'classroom' teaching". My interpretation is that teaching that leads to curriculum learning and learning outcomes as assessed by the National Curriculum test arrangements fits within this definition and nothing else. Specifically 1 have ruled thai the Counselling Service is not eligible..."

5. It was against this background that, in July 2005, the appellant (who is a qualified teacher and counsellor and a member of the TPS through different employment) applied for a post as a supply teacher (although the role being discussed was "Specialist Teacher - Counselling"), The issue as lo entitlement to membership of the TPS was made quite clear so that in answer to the written question about whether she wished to join the TPS she wrote "if this is possible".
6. In January 2006, the appellant completed an application form for a part time leaching post "Specialist Teacher Counsellor" and was initially appointed on a temporary basis but then, on 18 July 2006, permanently with effect from 7 February 2, 006. She was issued with employment particulars as required by the Employment Rights Act 1996 which described her as "Teaching Staff", her role as "Specialist Teacher (0. 4 proportion)", her pay and conditions as determined in accordance with the Teachers' Pay and Conditions then in force and, as to Pension Scheme, the particulars went on:

"The Teachers Pension Scheme is governed by statutory regulations and admission is available to the majority of teachers. A small number of teaching posts not on school establishments do not qualify for admission to the scheme but may be considered for the Local Government Pension Scheme. You should already have received a Scheme Booklet (enclosed with your appointment letter). You are required to indicate your intention to join (or not) the scheme by completing the declaration at the end of this document."

7. On 19 July 2006, the appellant signed the declaration to join the TPS on 19^th July 2006 (to which she had in fact been contributing all year) and deductions were made from her pay in accordance with that scheme until March 2007. However, on 2^nd March 2007, the Deputy Head of Personnel moved her to the LGPS, explaining that an error had occurred in the provision of pension arrangements. A Senior Solicitor in the local authority later wrote that the LEA had "exercised its discretion fairly and correctly in designating educational counsellors as 'organisers' rather than teachers", the effect of which is to deprive them of membership of the TPS and provide them with membership of the different (and less attractive) LGPS.

The Statutory Framework

8. By s.9(1) of the 1972 Act, the Secretary of State is empowered to make regulations with respect to the pensions etc which "are to be, or may be, paid to or in respect of teachers", the term "teachers" being defined by s. 9(6):

"'teachers' includes such persons as may be prescribed by regulations made under this section, being persons employed otherwise than as teachers (a) in a capacity connected with education which to a substantial extent involves the control or supervision of teachers; or (b) in employment which involves the performance of duties in connection with the provision of education or services ancillary to education. "

9. The regulations are The Teachers' Pensions Regulations 1997 (as amended by The Teachers' Pensions (Amendment) Regulations 2004) which by s. B1(1) of Part B provide that "a person is in pensionable employment while he is in employment... (a) in a capacity described in Schedule 2". Para. 1 of that Schedule includes "teacher employed by, or in a school... maintained by a local education authority". Those in local government service who do not come within the TPR are covered the LGPS provided by s 7 of the Act, the two schemes being mutually exclusive (see Secretary of State for the Environment v. Cumbria County Council [1983] ICR 52 per Lord Keith at 59).
10. Although Schedule 1 to the Regulations provides a Glossary of Expressions, it does not define the word "teacher" but does define an "organiser" as "a person in employment which involves the performance of duties in connection with the provision of education or services ancillary to education" which has an echo with s. 9(6) which allows the Secretary of State to prescribe such persons. It is not suggested that this step has been taken. As it is, the definition of "organiser" ("duties in connection with the provision of education") is wide enough to include teachers, but certainly covers employees such as bursary staff, science laboratory technicians and dinner ladies.

The Proceedings

11. With the support of the National Union of Teachers, the appellant challenged the decision to transfer her pension from the TPS to the LGPS and commenced proceedings in the Coventry County Court. During the course of the hearing (which lasted some three days), Judge Gregory heard from all those to whom reference has been made, namely the appellant, her manager the Head of Counselling Services and her manager Senior Leader for Inclusion for Children and Families in support of the proposition that the appellant's employment was properly described as being in the capacity of a teacher and thus fell within the TPS; on the other side, the Deputy Head of Personnel and the Director of Education maintained the stance that the role did not come within the TPS and was therefore the appellant was properly placed in the LGPS. A pensions expert identified that the loss flowing from the placement and continuation of the appellant the LGPS was £7, 941.
12. I summarise part of the evidence shortly because (along with the terms and conditions to which I have referred) the facts provide the matrix within which the statutory construction of the 1972 Act falls to be considered. In that regard, essentially, the only evidence about precisely what the appellant did came from her. She said that her work involved planning, preparing and delivering lessons to primary school pupils and assessing and reporting on their development: she said that about 70% of her time was spent face-to-face teaching on a one to one basis in a counselling room. Her first statement explained:

"The purpose [of the role] is to help pupils mature in terms of developing their intellectual, social and emotional skills. This can help their cognitive development and learning potential and also assist them in developing resilience to adapt to changes in their lives....

My teaching is delivered through the therapeutic medium of counselling on school premises and school time, The focus of my teaching is the knowledge, understanding and skills required by the distressed pupil referred for counselling to thrive emotionally, socially, intellectually and in terms of their behaviour. The purpose of this leaching intervention is that the child be enabled to remove their blocks to learning and fully engage, fearlessly but safely in curriculum and social activities."

13. The appellant described herself as a teacher with a specialism in counselling. She accepted that she did not teach the national curriculum but was "removing the blocks to learning". She agreed with the judge that she was a facilitator, explaining in re-examination that "some of (he work feels like direct teaching and some of it is more indirect". She also agreed that she helped children overcome their difficulties so that they could benefit from teaching in class.
14. The other witnesses spoke of the background to the dispute although Mr Freeman accepted that the appellant had been employed as a teacher (contending that she had been placed in the TPS in error) and the deputy Mead of Personnel accepted that she had formed her view as the appellant's duties only as a result of a desktop exercise.
15. The judge recognised that to qualify to join the TPS required the appellant to be in employment in a capacity of a teacher employed in a school maintained by a local education authority: in other words, the nature of her employment had to fulfil the statutory requirements of the scheme. The question, therefore, was whether the appellant was so employed. He said that the approach had to be objective, taking into account the totality of the facts, with regard paid to the guidance that has come from various sources: he had to look at the reality of (he position. The case for the local authority was that she was an education counsellor, counselling children to allow them to access learning and ensure their inclusion within mainstream schools.
16. The judge concluded:

"I have had to consider what a teacher does and it seems to me that someone in the capacity of a teacher is principally concerned in delivering learning. It is obviously much more difficult for a teacher to deliver learning to a child who is emotionally disturbed, has behaviour difficulties or mental health issues and if a child can be helped to overcome even only partly such difficulties... through the intervention of a counsellor, that is to perform a hugely valuable service. I have also no doubt that somebody who is a qualified teacher... will be able to perform that function far more valuably than someone without those qualifications.... But the fact that somebody acting in the capacity of a counsellor has the skills, qualifications and experience of a teacher does not make that person a teacher when working in the capacity of a counsellor and a person working in the capacity of a counsellor, it seems to me, much more closely fits the definition of an organiser than can be put into the category of somebody employed as a teacher.

... I would in reality be doing violence to what the regulations properly contemplate a teacher to be. In essence, her role is to facilitate the work of the teachers by making or enabling the children to become more receptive to learning and being taught by teachers in a school environment."

The Appeal

17. Mr Tindal argues that the judge focussed on whether the appellant was teaching rather than whether she was employed in the capacity of a teacher and formulated his own definition of leaching as 'delivering learning'. He referred to guidance issued by the Department for Education and Skills which cross referred to definitions of the word "teacher" in the Education (Health Standards) Regulations 2003 (which by para. 5(1) included delivering lessons to children and assessing the development progress and attainment of children) and in s. 122(3) of the Education Act 2002 which governs pay and conditions of teachers and includes within the definition the activity specified reg. 6 of the Education (Specified Work and Registration) (England) Regulations 2003 which uses similar wording to para. 5(1) above.
18. In that regard, Mr Tindal argued that the judge's approach created an inconsistency between the undoubted fact that the appellant was a teacher for purposes of pay and conditions (which Mr Freeman accepted) and her pension. The judge considered the regulations "a useful tool" but it was submitted that he did not apply that tool when considering his definition. He should have taken account of her contract and considered whether the appellant was employed in the capacity of a teacher in contra-distinction to focussing on her actual duties.
19. Alternatively, even if the judge was right to focus on what the appellant was doing, Mr Tindal argued that he wrongly ignored her evidence that she was, in fact, teaching that is to say she was teaching skills that enabled children to cope with their difficulties and thereby assisted them to learn curriculum subjects: she was akin to a special needs teacher.
20. For the local authority, Miss Garner submits that the effect of the appellant's argument would be that the description 'specialist teacher' on the contract of employment would be determinative, regardless of the role undertaken or the work done. In fact, the judge relied principally on the appellant's own account of her work, along with other definitions of the word 'teacher' which emanated from the legislation. She argued that the judge was correct in his approach and that, on her own evidence, the appellant was fulfilling a counselling role: this court should not interfere unless the decision was perverse (which was not suggested). As to the different classification for pay and conditions and pension, she submitted that there was nothing to prevent her being paid as a teacher as defined by s. 122(3) of the Education Act but that did not make her a teacher either within that Act or the TPR. As to the finding that the appellant was not employed in the capacity of a teacher, Miss Garner argued that none of the factors on which Mr Tindal relies were not taken into account and that the inference which he drew that the appellant was a counsellor and not a teacher was not wrong or, alternatively, well within his discretion.

Analysis

21. It was, of course, open to the legislature to define the term 'teacher' in the TPR (as it has in other legislation) but the failure to do so means only that the word must be construed in accordance with its natural meaning. Thus, in the Oxford English Dictionary, a teacher is defined as "one who... teaches or instructs" and teach is defined as:

"to show by way of information or instruction. 1. To t. a thing: to impart or give the knowledge of; to give instruction or lessons in (a subject);... 2. to t. a thing...: to communicate something to a person, by way of instruction...."

I add that Chambers Dictionary defines the word teacher as "a person whose profession, or whose talent, is the ability to impart knowledge, practical skill or understanding".

22. What is clear from both of these definitions (and, indeed, from what might be described as a common understanding of the word) is the absence of any reference to the number of persons being taught, the place (a classroom) or the subject (the national curriculum or otherwise). Thus, Mr Freeman's definition of the term (engaging largely or wholly in classroom teaching) is far too narrow. Nobody would suggest that a person engaged to educate at home a child who was unable to attend school was not a teacher; neither do I venture to suggest would anybody challenge the proposition that instruction on, for example, revision skills, or methods of learning (which are relevant to, but not part of (the curriculum) was a skill which was or could be taught and that whoever did so was teaching.
23. For my part, I recognise that there is a blurred line between counselling and leaching. Counselling might be utilised, for example, to explain to a child the reason for his or her feelings following bereavement or parental divorce. Counselling and teaching might both be involved in seeking to demonstrate to a child how to avoid unprovoked loss of temper, how to learn how to focus and concentrate both of which are essential attributes to engaging with education or how to cope with disabilities such as attention deficit hyper-activity disorder, dyslexia or dyspraxia. It all depends on the circumstances and the precise task upon which the relevant person is engaged.
24. To that end, it is necessary to return to the contract. That is not because it is permissible for employment to be described without regard to the work being undertaken but because, whichever approach is adopted, the work that is to be undertaken provides the evidence of the capacity in which the appellant was employed and the job that she is doing. In that regard the phrase "teaching in emotional, behavioural and cognitive education" clearly involves imparting knowledge on the techniques which the child can use to overcome their difficulties and engage in education. In my judgment that is precisely what the appellant meant when she spoke about "teaching... the knowledge, understanding and skills required by the distressed pupil... to thrive emotionally, socially, intellectually and in terms of their behaviour". Neither is the judge's definition ("delivering learning") inapt provided that the word 'learning' encompasses the techniques to which I have just referred and is not limited to the educational curriculum.
25. Miss Garner argues that the judge's finding of fact or inference that the appellant was a counsellor and, as such, an organiser rather than a teacher was open to him on the evidence and that this court should not interfere. She agrees with Mr Tindal that the proper approach is that summarised by Mance LJ in Todd v. Adams & Chope (trading as Trelawney Fishing Co) [2002] 2 Lloyds Rep 293 at para. 129 (referred to with approval in Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2003] 1 WLR 577 per Clarke LJ at 580 which in turn was approved in Datec Electronics v. United Parcels [2007] UKHL 23 per Lord Mance at 46):

"With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of "review" may be said to fit most easily into the context of an appeal against (he exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment - such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellant court to allow an appeal where the decision below was "wrong" and to "draw any inference of fact which it considers justified on the evidence" indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellant court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the Appellants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious."

26. That is precisely the exercise that I have sought to undertake. In my judgment, the judge approachcd the issue of what constituted teaching from too narrow a perspective. Although each case is fact sensitive (with the result that the employment of others that is restricted to diagnosing conditions or pure counselling will not properly be categorised as teachers), in this case, I have no doubt that the appellant was properly described in the contract as a teacher and that what she was employed to do (among other things) was one to one teaching of children to provide them with techniques which would enable them to engage in mainstream education.
27. In the circumstances, I would allow the appeal and grant a declaration that the appellant is a 'teacher' for the purposes of the TPS. I would further order that, in the event that the appellant is now admitted to the TPS, the local authority shall take such further steps as are necessary as to place her in the position that she would have been in had she not been moved from the TPS to the LGPS. In the event that the TPS does not admit the appellant to that scheme, the local authority shall allow her to transfer her existing benefits from the TPS into the LGPS and shall pay to the appellant the agreed sum of £7,941 within 28 days of notification from the TPS that she is not entitled to admission.

Lord Justice Pitchford

28. I am grateful for my Lord's analysis. I agree with it and with the order he proposes. It does not seem to me that the descriptions "teacher" and "counsellor" and "facilitator" (the latter being the learned judge's description, accepted by the appellant, of the nature of the appellant's work) are mutually exclusive when considered in the context of educating children with emotional or other psychological learning difficulties. The appellant's contract described her as a specialist teacher. I accept that the contract description is not conclusive. However, it was also common ground that the appellant's job description, to which my Lord has referred at paragraph 2 of his judgment, accurately described the duties which the appellant was "employed in a school" to perform.
29. Stripped of jargon, the appellant's job was, first, to assess the learning of disadvantaged children, second, to use her counselling and teaching techniques to show such children how to access mainstream learning and, third, to map the progress of the children towards that objective. In this sense I entirely accept the judge's conclusion that the appellant acted as a facilitator between the children and mainstream teaching staff. But the fact that the appellant so facilitated the child's access to learning did not, in my judgment, imply that the appellant was not a teacher but an ancillary worker. She was, by her contract, employed by the respondent as a teacher and the performance of her contractual duties was an integral part of the teaching process. With respect to the judge's careful and discriminating approach to the evidence, I agree with my Lord that he adopted too narrow an interpretation of the words "employed in the capacity of a teacher". The ordinary meaning of those words required no distinction to be made between the appellant's specialist teaching role and that of the "mainstream" teachers who delivered the curriculum. They were wide enough to cover both.

Lord Justice Ward:

30. The issue in this appeal is whether Mrs Owens is in employment in the capacity of a teacher employed in a school maintained by a local education authority. If she is she fulfils the requirements of the Teachers' Pensions Regulations 1997 making her eligible to participate in the Teachers Pension Scheme. All the indicia of her employment point ineluctably to the conclusion that she is so employed.
31. Her Recruitment Job Description: The job title was "Specialist Peripatetic Teacher Counselling". The main purpose of the job was:

"1. To work with schools... and directly with the children... with mental health concerns and/or emotional and behavioural difficulties to ensure effective and successful inclusion of pupils attending mainstream schools.

2. To work with pupils individually or in groups, delivering teaching in emotional, behavioural and cognitive education through the facilitative and co-operative, therapeutic learning medium of counselling. "

The main activities are described as:

" 1. To enable access to learning... "

32. The application form for a teaching post: The vacancy details were for a "Specialist Teacher Counsellor".
33. The principal statement of employment given under the Employment Rights Act 1996: She was appointed to the post of part-time specialist teacher. Her salary was determined in accordance with the provisions of the current School Teachers' Pay and Conditions document. The terms and conditions of her employment were in accordance with:

(a) the Statutory School Teachers Pay and Conditions document currently in force,

(b) the Education (Teachers) Regulations 1993,

(c) the Conditions of Service for School Teachcrs in England and Wales.

Her hours of work were the current statutory arrangement lor working time for teachers. Her pension scheme was staled to be the Teachers Pension Scheme. There was evidence of an internecine battle within the ranks of the respondent Borough between those who viewed Mrs Owens and her colleagues as teachers and those who saw them as having a non-teaching role and wished to change Mrs Owens' designation accordingly. The Council were, however, not entitled unilaterally to change the contractual terms and conditions of employment.

34. Her own description of her work: She described this in her witness statement as follows:

"The focus of my teaching is the knowledge, understanding and skills required by the distressed pupil, referred for counselling, to thrive emotionally, socially, intellectually and in terms of their behaviour. The purpose of this teaching intervention is that the child be enabled to remove their blocks to learning and fully engage, fearlessly but safely in curriculum and social activities. "

35. The art of good teaching is not confined to teaching knowledge. The greater gift a teacher can bestow is teaching how to acquire and apply knowledge. That is exactly what Mrs Owens does. She is in a school teaching children how to think and how to learn. She is unquestionably in employment in the capacity of a teacher. For these reasons and for those given by my Lords, I too would allow the appeal.