COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
His Honour Judge Gregory
Case No. 9ST00019
Strand, London, WC2A 2LL
B e f o r e :
| BEVERLEY OWENS
|- and -
|DUDLEY METROPOLITAN BOROUGH COUNCIL
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Miss Sophie Garner (instructed by Senior Solicitor, Dudley Metropolitan Borough Council) for the Respondent
Hearing dates: 15 March 2011
Crown Copyright ©
Lord Justice Leveson:
"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....
"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... "
"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. "
"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..."
"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."
The Statutory Framework
"'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. "
"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."
"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."
"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".
"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."
Lord Justice Pitchford
Lord Justice Ward:
"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... "
(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.
"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. "