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Cite as: [2001] EWHC Admin 513, [2001] EWHC Admin 488

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Queen on the application of S v. Head Teacher of Claremont High School; Governing body of Claremont High School; Independent appeal panel of the London Borough of Brent and London Borough of Brent [2001] EWHC Admin 488 (2nd July, 2001)

Case No: CO/4115/2000
Neutral Citation Number: [2001] EWHC Admin 488
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 2^nd July 2001

B e f o r e :
THE HONOURABLE MR JUSTICE RICHARDS
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	The Queen (on the application of S)	Claimant
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	(1) Head Teacher of Claremont High School (2) Governing body of Claremont High School (3) Independent appeal panel of the London Borough of Brent (4) London Borough of Brent	Defendants

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr J McKendrick (instructed by Ashok Patel & Co for the Claimant)
Mr J Swift (instructed by Trivedy & Virdi for the Defendants)
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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE RICHARDS:

1. The claimant, S, is a 13 year old boy who has been permanently excluded from his school. By these proceedings he challenges the decision to exclude him, though he does not seek reinstatement at the school. The purpose of the challenge is to remove a black mark from his record and to clear his reputation. He also brings a separate challenge against the local education authority for alleged failure to make arrangements for the provision of suitable education for him since his exclusion.
2. S became a pupil at Claremont High School in September 1998. While at the school he had a poor disciplinary record. He was temporarily excluded for three days In October 1999 for bullying and for five days in April 2000 for fighting. On 28 June 2000 there occurred an incident in which he was alleged to have engaged in sexual harassment of a female pupil. S was temporarily excluded while the incident was investigated by the head teacher and senior members of staff. On completion of the investigations the head teacher wrote to S's parents on 6 July 2000 informing them of his decision that S should be permanently excluded. The discipline committee of the governing body met on 18 July to consider whether S should be reinstated. Its decision, communicated by letter of 19 July, was to endorse the head teacher's decision. S's mother appealed to the independent appeal panel, which dismissed the appeal in a decision communicated on 28 September 2000. Since his exclusion S has remained at home and has not received tuition.
3. The claimant seeks judicial review of the decisions made at each stage of the permanent exclusion procedure. No specific ground of challenge is identified, however, in relation to the head teacher's decision. In relation to the decision of the governing body the grounds of challenge as developed before me are that (1) it applied the wrong standard of proof and (2) the proceedings before it were vitiated by a failure on the part of the head teacher to disclose a witness statement of the teacher during whose lesson the incident was said to have taken place. In relation to the decision of the independent appeal panel the grounds of challenge are that (1) it applied the wrong standard of proof, (2) there was procedural unfairness by reason of the introduction of new evidence from the head teacher that S had confessed to the incident, and (3) there was a breach of article 6 of the European Convention on Human Rights and/or there was a real danger of bias on the part of the panel because the legal clerk to the panel was an employee of the local education authority.
4. In so far as the challenge is brought against the decisions of the head teacher and the governing body the claimant faces the initial hurdle that the application to this court was not made until 1 December 2000, well outside the three month outer time limit for claims for judicial review. In granting permission, Elias J did so without prejudice to the right of the head teacher and governing body to contend that the application is out of time and should not be allowed to continue because of delay. Mr Swift, for the defendants, submits that relief should be refused in any event on that ground. Mr McKendrick, for the claimant, seeks to avoid that difficulty by contending that the claimant was justified in waiting for the outcome of the appeal procedure before bringing any challenge. But that raises the further question whether, given the existence of an appeal procedure, it is appropriate to proceed by way of judicial review of the decisions of the head teacher and governing body at all. As it seems to me, the claimant faces a very real dilemma: if the appeal procedure did not provide an appropriate alternative remedy for any defects in the earlier decisions, then the claimant should have brought a timely application for judicial review; but if the appeal procedure did provide an appropriate alternative remedy, then that is in itself a sufficient reason for declining to entertain the application for judicial review. In my view the proper target of challenge is in general the final decision under the appeal procedure, i.e. the decision of the independent appeal panel, rather than decisions made at the earlier stages of the procedure. Nevertheless in the particular circumstances of this case, having heard full argument, I have thought it right to deal briefly with the substance of the matters raised in relation to the earlier decisions.
5. A further problem about the challenge to all these various decisions is that the claimant is not seeking reinstatement to Claremont and the challenge even to the decision of the independent appeal panel can serve no useful purpose beyond helping to restore his reputation. That could have a very real bearing on the question of relief if the challenge were otherwise well founded, but I am not satisfied, and Mr Swift has not contended, that it should cause me to reject this part of the claim out of hand.
6. The one part of the claim that is of real practical significance is the contention that the London Borough of Brent, as local education authority, has failed to meet its obligation under section 19 of the Education Act 1996 to make arrangements for the provision of suitable education for S since the exclusion took effect.
Statutory framework
7. The relevant statutory provisions are contained in the School Standards and Framework Act 1998. Section 61 confers powers on the governing body and head teacher of maintained schools to regulate discipline within the school. There is a three-tier system governing the exclusion of pupils. Section 64 empowers a head teacher to exclude a pupil either for a fixed period or permanently. Section 66 requires the governing body of a maintained school to consider any decision that a pupil be excluded permanently from that school and to determine whether or not the pupil should be reinstated. Section 67 requires a local education authority to make arrangements for enabling the parents of a pupil who has been permanently excluded from a school to appeal against any decision of the governing body under section 66 not to reinstate him. Such appeals are to be heard and determined by an independent appeal panel as defined in Schedule 18 to the Act. Schedule 18 contains detailed provisions governing appeals. By paragraph 2(2) the appeal panel is to consist of three or five members appointed by the authority. Paragraph 2(7) lays down disqualifications from membership so as to ensure that the panel is truly independent. By paragraph 10(1) appellants are to be allowed the opportunity to appear and make oral representations and to be represented or assisted by a friend. By paragraph 10(2) the head teacher may appear and may make written and oral representations; the governing body and authority may make written representations; an officer of the authority nominated by it, and a governor nominated by the governing body, may appear and make oral representations; and the governing body may be represented.
8. Pursuant to section 68 head teachers, governing bodies, the local education authority and independent appeal panels must have regard to guidance issued by the Secretary of State when considering whether to exclude a pupil. The relevant guidance is contained in Annex D to DfEE Circular No.10/99, "Social Inclusion: Pupil Support", as amended on 4 August 2000.
The exclusion decisions
9. The basis upon which the head teacher decided to exclude S permanently is set out in his letter of 6 July 2000 to S's parents:
"I have now completed my investigation and it is clear to me that [S] has admitted to using completely unacceptable behaviour towards another pupil in that:
(a) He touched her in an intimate way against her wishes. This occurred over a period of more than 20 minutes during a languages lesson.
(b) The student expressed her annoyance and disapproval of [S's] behaviour on more than one occasion and he ignored her request to stop.
(c) When the student confronted [S] at the end of the lesson he used excessive force and threatening behaviour, pushing her to the ground twice and then physically restraining her.
(d) These actions were witnessed by other pupils and later reported to the pupils' subject teacher and Head of Year.
It is the school's view that [S's] use of physical violence against a fellow pupil and his wilful harassment of her constitutes an act of serious misconduct.
In these circumstances taking into account the final warning given to you and [S] following the Governors' Disciplinary meeting on 24 May 2000, I have no alternative but to take the decision to permanently exclude [S] from Claremont High School ...."
10. At the meeting of the discipline committee of the governing body, submissions were made on behalf of the school by the head teacher and the head of year and submissions on behalf of S were made by his mother. Minutes were made of the meeting. The decision of the committee, as set out in its letter of 19 July 2000, was:
"After long and serious consideration the Committee found that the allegation of serious sexual harassment was proved; the[y] accepted that such an assault was an act of serious misconduct constituting a grave breach of the Code of Conduct. They felt that such behaviour and his previous conduct over a long period gave them no alternative but to uphold the Headteacher's decision and the Committee therefore endorsed the decision to permanently exclude [S] as outlined in the Head- teacher's letter of 6 July 2000."
11. The appeal from that decision was heard by an independent appeal panel of three members. Again there are detailed notes of the hearing. The panel had before it a number of statements taken from the complainant (referred to as "Ms X") and other pupils, which were submitted by the school. It heard evidence from the head teacher, the chair of governors and the local education authority's exclusions officer. Each was cross-examined by Mr McKendrick, who appeared on behalf of S before the panel as in this court. Mr McKendrick then opened the defence case and the panel heard evidence from S himself and from his mother.
12. The panel's decision letter of 28 September 2000 referred to the school's evidence and to a number of points made about that evidence on behalf of S. One such point was that Ms X did not complain to a teacher about the assault at the time but said nothing until she was queried about why she herself had slapped S outside the classroom. Another was that the German class teacher had not noticed any incident taking place and that her statement saying this had not been produced before the governing body. It was also suggested that the pupils who gave statements could not have seen what they said they saw and that, since the statements from other students were taken one or two days after the incident, there was a possibility of collusion or contamination. The head teacher's notes of his interview with S had not been produced and S challenged their accuracy. Having referred to those points and then to S's own evidence of what he claimed had actually taken place, the decision letter continued:
"The Panel considered [S's] evidence and all the points made on your behalf very carefully but it preferred the evidence of the Head Teacher and the witness statements of Ms X and the other pupils. On balance of probabilities, the Panel accepted that the incident occurred as described by Ms X. The Panel considered it unsurprising that Ms X's account emerged in the way it did, which is not unusual in cases of assault that are an embarrassment or humiliation to the victim. In the circumstances obtaining in the classroom, it was not impossible that the incident might go unnoticed by the teacher and by pupils sitting nearby.
The Panel then went on to consider whether permanent exclusion was a reasonable response in all the circumstances. It was submitted on behalf of the School that the assault was in the category of one-off offences serious enough to warrant immediate exclusion. It was accepted by your representative that if the Panel found the assault had occurred as Ms X described it, this would be so. On the basis of its findings as to the nature of the assault, the Panel accepted the School's submission that it was serious enough to warrant immediate exclusion ...."
Standard of Proof
13. The statutory guidance (Annex D to Circular 10/99) refers to proof on "the balance of probabilities":
"In considering an appeal, the panel should decide whether the pupil did what they are accused of doing. If there is more than one alleged incident of misconduct, the panel should decide on each incident. If satisfied on the balance of probabilities that the pupil did what they are alleged to have done, then the panel should decide whether permanent exclusion is a reasonable response to that conduct ...."
14. The matter, however, is not as straightforward as that passage might suggest. In R v. Dunraven School, ex parte B [2000] ELR 156, 204F-205C, Brooke LJ stated in relation to the present statutory context:
"I mention the requisite standard of proof, although it was not mentioned on the appeal, because I have had to bear it in mind when deciding how to respond to the issues raised on the appeal. Since B was being charged with an offence of dishonesty, the law requires that proof should not be on the ordinary balance of probabilities, but that it should be distinctly more probable that he was dishonestly involved in stealing from the teacher's handbag than that he was not. I adopt this as a convenient way of expressing the law as set out in the leading case of Hornal v. Neuberger Products Ltd [1957] 1 QB 247. In Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Lord Nicholls of Birkenhead said at p.586:
"Although the result is much the same this does not mean where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In Re Dellow's Will Trusts [1964] 1 WLR 451, 455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'
This substantially accords with the approach adopted in authorities such as the well-known judgment of Morris LJ in Hornal v. Neuberger Products Ltd [1957] 1 QB 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."
So far as I can see, in the guidance provided by the Department of Education to appeal committees, no mention is made of this aspect of the standard of proof."
In the same case Sedley LJ expressly associated himself with what Brooke LJ said about the need for a degree of rigour in analysing and evaluating the evidence before deciding on exclusion in a case of that kind.
15. In R v. The Governors of the Weald School, ex parte K (Administrative Court, 6 October 2000, unreported) Hidden J was satisfied that the proper standard of proof was that set out by Lord Nicholls in Re H and by Brooke LJ in Dunraven. On the facts of the case before him, he considered that although a reference had been made to the balance of probabilities, only lip service was in fact given to the standard of proof. No account had been taken of the inherent probability or improbability of what was alleged. In R v. Alperton Community School & Others, ex parte B & Others (Administrative Court, 27 March 2001, reported briefly in The Times, 8 June 2001, under the name R v. Secretary of State, ex parte B & Others), Newman J quashed the decision of a governing body on the ground that he would have expected it to have referred to the distinction between the "ordinary" balance of probabilities test and the higher standard of "distinctly more probable" (see Dunraven) had it applied the correct test; and having regard to the inconsistencies and points which could be made about the witnesses, he did not consider it right for the court to assume that the governing body would be bound to come to the same conclusion.
16. In the present case the independent appeal panel accepted "on balance of probabilities" that the incident occurred as described by Ms X. A subsequent letter of clarification stated that the panel followed the guidance contained in Circular 10/99. Mr McKendrick submits that the panel thereby failed to apply the correct test. It did not take into account the considerations identified by Brooke LJ in Dunraven and ask itself whether it was distinctly more probable than not that S had acted as alleged. This was a serious case where that approach should plainly be applied. If the correct test had been applied, the panel might have reached a different conclusion. The language of the decision ("it preferred the evidence of the Head Teacher and the witness statements of Ms X and the other pupils" and "it was not impossible that the incident might go unnoticed by the teacher and by pupils sitting near by") not only supports the view that the wrong approach was applied but also suggests that the position might have been different if the right approach had been applied.
17. In my view it is clear from the authorities that the test to be applied is correctly described as "the balance of probabilities". But that description does not represent a complete statement of the approach required. The seriousness of the conduct alleged is itself a matter to be taken into account when deciding as to the balance of probabilities. It makes no difference, for present purposes at least, whether the point is expressed in the language of Denning LJ in Hornal that "the more serious the allegation the higher the degree of probability that is required" (see [1957] 1QB at 258), in Brooke LJ's terms of "distinctly more probable than not", or in the words of Lord Nicholls in Re H that "the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established". There is nothing to show that the independent appeal panel had this additional consideration in mind when applying the balance of probability standard. Accordingly I accept that it failed to apply the correct legal test.
18. Nevertheless I am satisfied that the panel would have reached the same conclusion if it had applied the correct test. It is plain from the decision as a whole that the panel recognised the seriousness of the allegation made and considered the evidence very carefully. There is nothing in the language of the decision to suggest that there was anything marginal about the conclusion reached. Expressions such as "preferred the evidence" and "it was not impossible" seem to me to be neutral rather than indicating a finely balanced decision. In a witness statement in these proceedings the chair of the panel states:
"The Panel's decision letter refers to the Panel being satisfied on a `balance of probability'. The latter phrase was employed because it appears in Government Guidance to Panels. However, the decision was not a borderline one - the Panel felt that the civil burden of proof had easily and clearly been surpassed. I believe that the Panel felt that the written statements from the girl concerned, Ms X, and the school room witnesses were extremely persuasive... Although Mr McKendrick did try to draw out certain inconsistencies between them, I think that the panel felt that, taken together, they were very compelling and not materially inconsistent - I think we felt it was to be expected that different pupils might have seen slightly different aspects of the behaviour complained of. The Panel's decision letter makes it clear, I feel, that we carefully considered [S's] evidence but were nevertheless satisfied that the events actually unfolded much more in line with the Witness Statements of the other pupils and Ms X."
19. Such evidence must be viewed with caution. It is expressed somewhat diffidently in places and, in so far as it relates to the views of the other members of the panel, it is not confirmed by them. But it seems to me that this is not the kind of case where it is impermissible to expand upon reasons given in a decision letter or to provide additional information about the decision-making process. In my view the chair's evidence on this point is admissible and can properly be given weight. In particular, I see no reason to reject his evidence that the decision was not a borderline one and that the panel felt that the civil burden of proof had easily and clearly been surpassed.
20. Moreover Mr Swift took me through the statements that were before the panel in order to show that they were broadly consistent with one another and were in the aggregate strongly supportive of the case against S. Six pupils gave accounts confirming details of the complaint made by Ms X about S's behaviour inside and outside the classroom. Different pupils noticed different things, but there were no serious inconsistencies and there was clear support for the allegation that S touched Ms X on the leg and the breasts and interfered with her bra strap. Taking that evidence into account and having regard to the available information about the panel's deliberations, I think it clear that the panel would have reached the same conclusion if it had asked itself in terms whether "it was distinctly more probable than not" that the incident occurred as alleged or had adopted an equivalent approach. I would therefore decline to grant any relief against the panel on this ground.
21. Mr McKendrick similarly contends that the discipline committee of the governing body failed to apply the correct standard of proof. Again there is nothing to show that it directed itself in accordance with the authorities to which I have referred. Indeed there is nothing to show that the balance of probabilities test was applied at all. Here, too, however, I am satisfied that even if there was a failure to apply the correct test it made no difference to the outcome. The notes of the hearing before the disciplinary committee state: "The Panel concluded that there was overwhelming evidence that the incident happened. There had been nothing to refute the evidence." There is additional evidence before the court in the form of a witness statement from the chair of the discipline committee, who states:
"In terms of how decisive our decision was, I have recently discussed the matter with my two co-Panellists. Two of us (including myself) had no real doubt whatsoever about [S's] culpability, as alleged by the victim, and the appropriateness of permanent exclusion. The third Panellist was definitely satisfied, but not as firmly as her co-Panellists."
22. Looking at the circumstances as a whole, I have no doubt that any failure on the part of the discipline committee to direct itself according to the correct standard of proof was a merely technical failure and had no effect on its decision.
Introduction of new evidence
23. In his evidence to the independent appeal panel, the head teacher stated that he had interviewed S and that S had confessed to the assault on Ms X as alleged. At the panel hearing Mr McKendrick objected to the introduction of that evidence on the ground that it was new evidence, notice of which had not been given to the claimant. He now submits that the panel acted unfairly in allowing the evidence to be introduced.
24. There is a factual dispute as to whether the evidence was new evidence at all. The head teacher refers to his original decision letter of 6 July 2000 where it is stated: "it is clear to me that [S] has admitted to using completely unacceptable behaviour towards another pupil ...." There are also references in other documents to S having admitted the allegations. On the other hand, the statement made by S at the time does not contain such a confession; no note of the interview between the head teacher and S has been produced (at the independent appeal panel hearing the head teacher said that he had notes but declined to produce them when requested); S's mother says that she was not told of the confession when she saw the head teacher, and there is no record of it in the head teacher's note of that meeting; and the evidence does not appear to have been given at the hearing before the governing body. In any event S's mother says that she had not previously heard of the supposed confession.
25. I think it unnecessary to resolve the dispute as to whether the head teacher's evidence of the confession was new evidence or not. I am prepared to assume in the claimant's favour that it was new evidence. It does not follow, however, that there was any unfairness in allowing the evidence to be introduced.
26. The hearing before the independent appeal panel was a re-hearing on the merits and was not limited to a review of the evidence before the governing body. The evidence of the confession was plainly relevant and admissible. It supported the reasons that had been given for exclusion, rather than introducing a new reason. It is difficult to see how the panel could properly have excluded or disregarded it.
27. As it was, the claimant had a fair opportunity to challenge the evidence if it was not accepted - by way of cross-examination of the head teacher, by evidence from S in rebuttal, and by way of submissions by counsel as to the weight to be given to the head teacher's evidence. If the evidence was indeed new and unsupported by the documentary evidence and the head teacher refused to produce his notes, there might have been considerable scope for effective cross-examination. If Mr McKendrick was taken by surprise and needed time for consideration of the new evidence and preparation of cross-examination, then he could have asked the panel for a short adjournment for that purpose; and there is no reason to believe that if such a request had been made it would have been refused. In practice Mr McKendrick limited himself at most to an objection to the introduction of the evidence at all (though there is an issue about that and the chair of the panel does not recall a specific application that the evidence should be disregarded). Absent a clear ruling by the panel in his favour, Mr McKendrick had to proceed on the basis that the evidence had been introduced and would or might be taken into account. In those circumstances it was for him to decide whether to cross-examine and make further submissions on it and whether he needed time to consider the position. The fact that he did not do so does not make the procedure unfair.
28. I mean no criticism of Mr McKendrick's conduct of the hearing. Decisions on the best way to proceed have to be taken quickly and it is all too easy to say in hindsight that a different course would have been a better one. But in any event there is no reason to believe that the adoption of a different course would have affected the panel's decision. In his witness statement the chair of the panel states that the head teacher's account of his interview with S was not a matter of any real significance to the panel. The panel heard S's account directly and was not entirely satisfied with it. When the decision letter refers to the panel preferring the head teacher's evidence, the reference is to the whole case presented by the head teacher and not simply to his oral account of his interview with S. It seems clear that the omission to cross-examine on this point or to make further submissions on it was not material.
Breach of article 6 ECHR and/or bias
29. The complaint under this head relates to the fact that the legal clerk to the panel was a person employed by the local education authority as legal services manager. Subsequent correspondence suggests that she may have advised the panel on two issues, namely the introduction of the head teacher's evidence of S's confession and the standard of proof. It is submitted that her dual role as clerk to the panel and legal services manager for the authority rendered the panel's decision amenable to review on grounds of (1) lack of independence and impartiality in breach of article 6 ECHR and (2) bias at common law. It is not contended that any such problem exists in relation to the panel members themselves, although they were appointed by the authority in accordance with Schedule 18 to the 1998 Act.
30. In my view it is not open to the claimant to rely on article 6, for two reasons. First, the hearing and decision pre-dated the coming into force of the Human Rights Act 1998. Secondly the panel's procedure does not fall within the scope of article 6. Newman J so held in R v. Alperton Community School, ex parte B (cited above). He found that the panel's decision involved neither a determination civil rights nor a determination of a criminal charge. As to the effect of the decision on a person's reputation, he held (at paragraph 57 of the judgment):
"In my judgment Article 6(1) is not applicable to IAP exclusion proceedings because:
(1) the civil law right to the enjoyment of reputation is not infringed in the course of proceedings (a) not directly decisive of reputation and (b) where the potentiality for damage has been recognised by proper procedural protection being accorded in those proceedings.
(2) an IAP is concerned to determined whether reinstatement should be ordered. The governing provisions are contained within a statutory disciplinary code applicable to schools, having the object of regulating, in the public interest, the proper and efficient provision of education."
31. Mr McKendrick has sought to distinguish the present case on its facts and to argue by reference to Fayed v. United Kingdom (1994) 18 EHRR 343 and R (on the application of Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929 that I should in any event adopt a different approach in this case. I have not found those submissions persuasive and I think it right to follow the decision in Alperton.
32. It is unnecessary to address the Article 6 issue any more fully, since in my view it does not add anything for present purposes to the common law test for bias laid down in R v. Gough [1993] AC 646, as adjusted in In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 to take account of the Strasbourg jurisprudence. The adjusted test was expressed in In Re Medicaments as follows (paragraph 85):
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
I understood Mr McKendrick at the end of his submissions to accept that the matter could properly be dealt with by reference to that test and not to pursue article 6 as a separate submission.
33. Applying the test in In Re Medicaments, I reject the submission that the circumstances would lead a fair-minded and informed observer to conclude that there was a real danger of bias in this case. The relevant circumstances include the following. First, the role of the clerk was simply to give legal advice to the panel; she was not in any way involved in the decision-making herself. The statutory guidance describes the role as follows (paragraph 13 of the amended Annex D to Circular 10/99):
"The appeal panel should have the services of a clerk to provide an independent source of advice on procedure for all parties to the appeal. Ideally, clerks should have received some legal training and have experience in the conduct of appeal hearings. They should not have served as clerk to the discipline committee hearing."
34. Secondly, the chair of the panel comments in his witness statement on his experience of the work of the clerk in this case. He states:
"I have sat on several appeal panels both for exclusion appeals and also for admissions appeals where she has sat as the legal adviser to the appeal panel. I believe she is a Solicitor of the Supreme Court and, in my experience, she has always confined her comments and her advice to the law and, when asked, what weight should be given to aspects of the evidence as provided for in the DfEE's guidelines. At no time has she ever tried to influence panel members in their findings of fact and I am sure that this was the case in the matter of [S]."
35. Thirdly, the only specific areas where concern is expressed in relation to advice given by her in this case are the introduction of the head teacher's evidence and the standard of proof. I have dealt already with both issues as part of my review of the decision itself. There is nothing in the detail of those issues to support the suggestion that any danger of bias arose out of her dual role as clerk to the panel and employee of the authority.
36. Finally, the authority had nothing to gain by seeking to influence the decision against the claimant. It is true that the authority had expressed support for the exclusion through a letter from its exclusions officer which stated: "it is also the view of the LEA that this exclusion is appropriate as the negative effects of his behaviour on other children and families were becoming intolerable; in other words, to allow [S] to remain in the school would seriously harm the education or welfare of others in the school." But I do not read that letter as supporting the school's case on the facts of the alleged assault. It was simply expressing the view that, if the conduct did occur as alleged, then exclusion was appropriate for the reasons given. In reality the authority faced a greater burden if the exclusion were upheld than if S were reinstated to his former school, since the upholding of the exclusion would place a duty on the authority under section 19 of the 1996 Act to make alternative arrangements for the suitable education of S.
37. A further question is whether the absence of any objection to the clerk at the time of the hearing amounted to a waiver precluding any future reliance on bias as a ground of complaint. Unfortunately the evidence before the court does not address that question with sufficient clarity. In particular it does not show whether the clerk's status as an employee of the authority was known to S's mother or his legal representative at the time. In the circumstances I doubt whether waiver could be established. But it is not necessary for me to take the point any further, having regard to my primary conclusion that in any event there was nothing in the circumstances of the case to lead a fair-minded and informed observer to conclude that there was a real danger of bias.
Failure to disclose teacher's statement
38. The complaint under this heading is that the head teacher failed to disclose to S's parents prior to the hearing before the discipline committee a statement of the teacher who supervised the German class during which the alleged incident occurred. It is submitted that the failure gave rise to a fundamental breach of natural justice, especially as the statement was supportive of the claimant's position and was written by a teacher whose evidence could be expected to carry greater weight. In her statement the teacher said:
"I, unfortunately, did not notice anything unusual. The inappropriate behaviour of [S] towards [Ms X] was not reported to me during the lesson. There were also no signs on their faces. This was a normal, quiet lesson."
39. The statement was included in the evidence before the independent appeal panel and Mr McKendrick accepts that the point falls away if his challenge to the decision of the panel is rejected. But he submits that if the panel's decision is quashed, then this is a further ground for striking down the decision of the governing body as well.
40. I accept that the teacher's statement should have been disclosed for the purposes of the governing body hearing as it was for the independent appeal panel hearing. In my view, however, the failure to disclose it did not give rise to any substantial unfairness to the claimant so as to cause the proceedings before the governing body to be in breach of natural justice. It is apparent from the minutes of the hearing that S's mother queried why there was no statement from the class teacher and that the head teacher stated in response that the class teacher was not aware of events and her statement had not been presented as evidence. Thus it was known that she had made a statement and that she had not seen the alleged incident. Her statement added detail which could have been deployed in the claimant's favour (though Mr Swift rightly points out that the statement is not strictly supportive of S's version of events since at no time did S claim that nothing had happened at all). But the statement was not capable of making a material difference to the overall case and it certainly did not amount, as suggested by Mr McKendrick, to material "refuting" the evidence against S (a reference to the conclusion of the governing body that there was overwhelming evidence that the incident happened and there had been nothing to refute the evidence). In any event S knew the substance of the case against him and had the opportunity to respond to it. For all those reasons I would not quash the governing body decision on this ground even if the issue were a live one.
The complaint against the local education authority
41. It is submitted on behalf of S that the local education authority has acted in breach of section19 of the 1996 Act, which provides in material part:
"(1) each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.
....
(6) suitable education, in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have."
42. S is currently at home receiving no tuition. An offer of 7½ hours of tuition per week was made by the authority in October 2000 following the decision of the independent appeal panel. It was offered on an interim basis pending S obtaining a place at another school or at the Brent Pupil Referral Unit ("the PRU"). The offer was not taken up, for reasons it is unhelpful to explore. Attempts by the authority to find an alternative school for S were unsuccessful. Information to that effect was communicated to S's parents by letter dated 6 December 2000, which went on to offer him at a place at the PRU in order to facilitate his return to school. S's parents have declined to take up that offer.
43. The position is that the authority considers the PRU to provide suitable education and that the offer therefore constitutes compliance with the authority's duty under section 19 of the 1996 Act, whereas S's parents consider it to be unsuitable and that the authority is in breach of its duty. It is common ground that the question for this court is whether the authority's view as to the suitability of the PRU is irrational.
44. For the claimant, reliance is placed on a report by a chartered educational psychologist, Mr John Hall. Mr Hall considers that the PRU is inappropriate and that the better course is to provide S with home tuition for 25 hours per week, combined with strenuous efforts to find a main stream secondary school placement. The essence of his concerns is expressed in the summary at paragraph 9 of his report:
"The PRU would not be able to meet [S's] needs. The timetable makes provision for less than 50% per school day with a curriculum unavoidably being a pale shadow of that available in a mainstream secondary school. The peer group would be entirely inappropriate because the overwhelming majority of pupils have a history of much more severe school difficulties than [S]. The Centre is not able to offer any realistic prospect of an early return to a mainstream school because this is dependent upon factors beyond the control of the LEA and the PRU. Schools in Brent are apparently increasingly reluctant to admit pupils whose history of school difficulties has been sufficiently severe to warrant placement at the PRU hence if [S] attended he would acquire this unhelpful stigma."
45. Mr McKendrick submits that to place S in the PRU when it would not meet his needs and would be potentially harmful to his longer term educational prospects would be an unreasonable decision.
46. The authority's evidence includes a witness statement by Mr Roper, head teacher of the PRU. He supports S's placement at the PRU, stating e.g. that:
"In my view, and from my experience, I believe that if [S's] parents had taken up this offer, that would have provided the best chance of a successful and early reintegration into an alternative mainstream school ....
[S] would be taught by staff who are not only specialists in their subject areas ... but who between them have a total of nearly 150 years' teaching experience, the bulk of it with pupils who have experienced difficulties of one kind or another in mainstream education. [S] clearly falls into that category, from my knowledge of his time at Claremont School. As can be seen from the timetable, [S] would have Maths, English and Science on a daily basis and would follow the National Curriculum in those subjects with a view to sitting his SATS at the PRU this month, May 2001, alongside other Year 9 pupils, if he had been on roll. It is regrettable that [S's] parents appeared to reject this opportunity, as it would have given any receiving school an indication of his educational potential. While it is accepted that the education at the PRU is part-time, it should be remembered that the potential for learning is considerably enhanced by the small group setting ....
I also made it clear to [S's parents] that, in my experience, schools would prefer to take an excluded pupil with a PRU history because our professional opinion as to suitability for integration would be respected by Brent Schools and because schools know that an ex-PRU pupil would come with support. The PRU provides a broader curriculum than would normally be available on home tuition in terms of time, subject coverage and opportunity for developing social skills ....
I am extremely surprised at Mr Hall's conclusion that 25 hours' home tuition could be viable or practicable, let alone sound, as an educational option. There are problems with curriculum opportunities, socialisation, learning stimulus and the provision of a framework for [S] to learn to modify the behaviour which had got him into trouble to date, in such a setting. Also, how can schools see evidence of improvement in behaviour following exclusion if [S] were to be taught in isolation?"
47. An OFSTED report on the PRU, based on an inspection in April 2000, is very favourable. It states that the unit provides an effective education for its pupils and many aspects of provision are very good. Pupils generally make good progress and some, especially in Year 11, make very good progress. Behaviour is mostly good and the majority of pupils show marked improvement in their behaviour and attitudes. Teaching is good overall and a significant amount is very good, especially in Year 11 where much emphasis is placed on preparing pupils for examination. The unit is very well led and managed. The report also states that the unit meets the needs of all pupils at least well; higher attaining pupils and those with more positive attitudes to learning have their needs met very well. The PRU provides a very good level of care for pupils and values them as individuals. Most parents are highly supportive of the unit and inspectors confirm the positive views of parents about pupils' progress, about the unit's contribution to their development and the level of information and support provided for parents.
48. It should also be noted that DfEE Circular No. 11/99, "Social Inclusion: the LEA role in Pupil Support", states in paragraph 5.23 that individual tuition at home is not usually appropriate for permanently excluded pupils, although it may sometimes be the only short-term option.
49. The question for me is not whether I prefer Mr Hall's view to that of the authority as expressed by Mr Roper and reinforced by the other material to which I have referred, but whether the authority's view is a reasonable one. I have no doubt that it is. The PRU can reasonably be regarded as providing suitable education in the circumstances that now exist, both in terms of meeting his immediate educational needs and, perhaps even more importantly, in terms of providing a stepping-stone back to mainstream school education. There is ample material to support that view. I therefore reject the claimant's case against the authority.
50. Since the hearing in this case I have received a letter from the claimant's solicitors indicating that the claimant has been told that an immediate Year 9 place is not currently available at the PRU but that there will be a Year 10 place available for him at the end of July. Whether to accept that place is a matter for S and his parents; but in the light of the conclusion that I have reached in this judgment, it would plainly be sensible to accept it. The authority is entitled to view the PRU as suitable and it is not under a duty to provide any alternative form of education.
Conclusion
51. For the reasons given in this judgment, I reject the grounds of challenge advanced against each of the defendants. It is unnecessary to give any further consideration to the submissions that I heard on the question of relief. The claim for judicial review must be dismissed.