Case no: CO/1820/2001
Neutral Citation Number: [2001] EWHC Admin 721
IN THE high court of justice
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of justice
Strand,
London, wc2a 2ll

Friday 31st August 2001
Before:

The Honourable Mr justice hooper

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The Queen on the application of A
Claimant
-and-

(1) The Head Teacher of the Penlan school

and

(2) the governors of the penlan school

And

(3) City and county of swansea 
Defendant
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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)
____________________

Ms Carolyn Hamilton (instructed by Children's Legal Centre for the Claimant)

Mr Philip Engelman (instructed by Swansea City Council for the Defendants)

____________________

Judgment
As Approved by the Court
Crown Copyright ©

Hooper J.
1.	This is an application made by A, date of birth 13.08.86, by his litigation friend and father, T.  Permission was granted by Henriques J.  The claimant challenges, amongst other things, the lawfulness of a letter sent to his parents on March 13 2001 by Mr Guy, the Headteacher of Penlan School.  A was a pupil at the school and his name remained on the roll throughout the relevant period. 
2.	An order is also sought relating to the claimant’s future education.  I have not heard argument on that aspect of the claim, it being anticipated that the parties should be able to resolve all or almost all of the outstanding issues by August 31, 2001.  
3.	The claimant also sought an order requiring the reinstatement of the claimant in Penlan School.  That is now not possible because Penlan School has been closed.  Having canvassed the matter with counsel, I reached the conclusion that I should first of all decide the issues relating to the March 13 letter.  At the conclusion of the hearing I informed the parties that I had decided that the claimant was entitled to a declaration that the Headteacher had acted unlawfully in sending the letter and that I would give my reasons on August 31. 
4.	The claimant also seeks an award of damages.  Miss Hamilton on behalf of the claimant accepted that she was not in a position to put forward at the present time a claim for damages.  Whether or not the claimant has suffered damages can only be determined at some point in the future.  Miss Hamilton also submitted that the “alternative arrangements” which were offered for the claimant following the letter of 13th March were inadequate.  It seemed to me that the proper time to consider that issue was during any hearing to consider what damages, if any, should be awarded and against which of the defendants.  
5.	I pointed out at the conclusion of the hearing that consideration of any claim for damages arising out of the letter would not be an easy task.  It seemed to me that not only would the sufficiency of the alternative educational opportunities offered have to be considered, but also how the claimant had utilised the opportunities offered to him.  In assessing damages regard might also have to be had to what would have happened if the claimant had continued his education at Penlan School.  There is a further difficulty.  There is evidence in the papers to the effect that on 5th April T expressed the view that he no longer wanted his son to return to Penlan School.  That is disputed.  Because this was an expedited hearing, T has not prepared a witness statement dealing with that matter.  For that reason it would not have been possible to deal with the 5th April point.  In any event it seems to me that the proper place to deal with that would be during the hearing at which any claim for damages has to be considered.
6.	I now give my reasons for the conclusion that the claimant was entitled to a declaration that the Headteacher had acted unlawfully in sending the March 13 letter. 
7.	On 15 December 2000 Mr Guy wrote a letter to the claimant’s parents informing them that the claimant had been permanently excluded for verbal assault on a female member of staff.  The letter stated (pages B31-B31a):
“I regret to inform you that your son [A], has been excluded permanently from school.  The exclusion is effective from Friday, 15th December 2000.
Despite endeavouring to provide [A] with every opportunity to reform, his behaviour is continuing to give grave cause for concern.
He has been involved in serious bullying incidents and has been arrested and cautioned for being involved in a serious assault on a Year 9 pupil.
As a result of this incident you attended the school to meet with the Chairman of Governors who emphasised the serious nature of the problem and informed you that any further misdemeanour would result in a permanent expulsion.
Since this final warning I have had to write to you to inform you that [A] has continued to be involved in serious indiscipline, including an incident when he attempted to strangle and smother a child while a substance was pushed into his mouth.
You have again recently visited the school to meet with [A]’s Head of House, Members of the Governing Body, and myself to discuss whether [A] would co-operate with us in our endeavour to keep him on the school roll.  During this meeting [A] was issued with yet another final warning.
In order to avoid a permanent exclusion the school has gone down many conciliatory and pastoral avenues without success.  We have endeavoured in every possible way to assist [A] in attempts to reform.  We have recently arranged a behaviour support programme and have more recently contacted Mrs Janice Hall to arrange Family Group Conferencing, which may have led to the provision of an alternative curriculum being provided for [A].
However, this week [A] has again been involved in another very serious incident.  On Wednesday, 13th December, [A] verbally assaulted and sexually harassed a young female member of staff, repeatedly humiliating her by subjecting her to a series of lewd and obscene suggestions.
As a result of this serious and extremely disturbing development I regret that I am left with no option other than to exclude [A] from Penlan School.
Whilst excluded [A] should not approach the vicinity of, or be present on, school premises.
Until the outcome of the exclusion is determined, I have made arrangements for [A] to continue his education whilst not at school.  The arrangements are that work is to be set and marked for [A] to do at home, but it is your responsibility to collect and return the work.  I should be grateful if you would contact the school to make the necessary arrangements.
You have the right to make representations to the Governing Body concerning the exclusion.  I will be writing to you shortly about a meeting of the Discipline Committee of the Governing Body at which you will be able to make your representations.
As the person with parental responsibility for [A] you are entitled to access his school record.  A request, preferably in writing, should be made directly to the school.
The Local Education Authority has been notified of the exclusion.  Should you require guidance on this matter please telephone the Pupil and Governor Unit, Education Department, County Hall, Swansea, on 01792 636551.”
8.	On January 16 2001 the Governors’ Discipline Committee upheld the Headteacher’s decision permanently to exclude the claimant (see page B38).
9.	Following a hearing of the Appeal Panel, the Head of Legal Services, Janet Hooper, sent a letter to the parents telling them that the appeal had been successful (page B32-35).  Although the Appeal Panel had some concerns about the evidence that the claimant had verbally abused the teacher the Panel concluded:
“From all they heard of the Appeal and the indication of the teacher in the statement that she was certain that it was [A], they considered that on the balance of probabilities, [A] was responsible for making the offensive statements complained of by the teacher.”
10.	Having accepted that the claimant’s behaviour towards the young female teacher was unacceptable the Panel went on to consider whether permanent exclusion was the appropriate sanction.  The Panel wrote (pages B34-35):
“It appeared that [A]’s behaviour had changed in May 2000 and he had become disruptive.  There had been no problem with his behaviour prior to this time.  At the appeal, [A] denied that he had been responsible for the incidents catalogued and the Headteacher confirmed that at least one of the incidents (when a classroom was broken into on the 20th October) had not in fact involved [A] as [A] had been with him when the incident occurred.  The Panel were concerned about the inaccuracies in the documentary evidence, which came to light during the appeal, and about the inadequacy of the evidence before them.  The Panel were informed that the police had been notified of incidents in the past and [A] had been cautioned and he had received two final warnings from the school.  It was clear to the Panel that there was a problem with [A]’s behaviour although [A] failed to accept this was the case.  The Headteacher informed the Panel that when [A] misbehaved he was taken out of class to sit in the Headteacher’s room and T had met with the Chair of Governors.  Despite this problem with [A]’s behaviour, the Headteacher confirmed to the Panel that he had not implemented any Pastoral Support Programme in accordance with Circular 3/99 and there had been no fixed term exclusions for poor behaviour.  There was reference in the papers to the school recently contacting a Mrs Janice Hall to arrange Family Group Conferencing, but this seemed rather late in the day.  The Headteacher informed the Panel that he had not used this previously because T was supportive of the school, but the LEA pointed out that whether or not the parent was co-operative with the school was irrelevant to the use of this facility.  In the circumstances of this case, the Panel did not think that the school had complied with the guidance in Circular 3/9 in that they had not tried all alternative strategies before resorting to permanent exclusion.  Also the Panel were of the view that although the incident on the 13th December was serious, it was not sufficient to warrant a permanent exclusion without the school having tried all the strategies in the guidance.  Paragraph 6.16 of the Circular states ‘The most severe and persistent cases of bullying, racial harassment or sexual harassment warrant a permanent exclusion where all other attempts to stop such incidents have failed’.
The Panel took into account the effect of permanent exclusion on [A] at this particularly important time in his education.  [A] is 14 years old and a bright child who is doing GCSE courses.  The Education Authority informed the Panel that it would be disastrous for [A]’s education if he was to be permanently excluded, and it would be very difficult to find another school for him.  The Panel agreed that permanent exclusion would have a highly detrimental effect on him at the present time.
The Panel also took into account the effect on others at the school, including both the staff and other pupils, if he was allowed to return.  Having considered this very carefully, the Panel were of the view that it would not be seriously detrimental to the education or welfare of others at the school for [A] to be reinstated and to be given on final chance.
Having taken all these factors into account, the Panel decided that in all the circumstances of the case, permanent exclusion was not appropriate in this particular case and they decided that [A] should be reinstated.”

11.	On the same day, February 13, the claimant returned to school and was, it is accepted, fully reintegrated back into his class. 
12.	On 14 February there was a meeting of the Governing Body of the School.  The Governing Body were informed by Miss Janet Hooper, the County Solicitor, of the results of the appeal.  The Governing Body resolved (page F19):
“1.  to agree to the decision of the Appeals Panel to reinstate [A] to Penlan Comprehensive School.
2.  that the Headteacher arrange [A]’s reinstatement to certain classes only.
3.  that arrangements be made for [A] to be seen by the Education Psychologist and the Family Group Conferencing Team.
4.  to recognise the Schools weakness in not recording and documenting evidence on [A] in an efficient way.”
13.	On 7 March the NAS/UWT, the union representing the majority of the teachers at Penlan school, wrote a letter to the Headteacher giving him notice of industrial action.  The letter read (page F23):
“The NASUWT intends to induce to take part in the action of twenty-seven members of the teaching staff in Penlan School.

The industrial action is intended to be continuous and will consist of action short of strike action in that NASUWT members will not accept the direction of the Penlan School headteacher to teach a certain pupil [the claimant].

The continuous action will commence on Thursday, 15th March 2001.”
14.	 Thereafter another union, the Association of Teachers and Lecturers, told the Chair of the Governors that it proposed to hold a ballot on the 20th March.  That union only had one teacher at the school and the ballot paper asked him whether he was prepared to take part in industrial action short of a strike by refusing to teach or supervise the claimant (page F26).  At about this time the Headteacher was also informed of a similar proposal by the NUT which had four members of staff in the school.  
15.	On 13 March the Headteacher sent a letter to the Director of Education, Mr R Parry.  That letter reads as follows (page F27):
“Twenty-seven members of staff of Penlan Comprehensive School are in the NAS/UWT and as you know they are taking continuous industrial action short of strike action in that the NAS/UWT members will not accept my direction to teach [A].
The NUT and ATL are also undertaking an industrial action ballot.  There are four members of staff in the NUT and one in the ATL.
I acknowledge your letter of 7th March 2001 asking that we provide [A] with a programme of study but as you can see it is proving very difficult.
I asked for an urgent meeting with the LEA.  [A] and his father and I would press for this to be arranged quickly.
I will instruct the members of NUT/ATL to take [A] on a restricted timetable until they have the result of their ballot.
I did inform the LEA on 9th March 2001 that I will not be able to guarantee [A]’s health and safety throughout the day as I have my own duties to perform and I am also expected to attend meetings out of school on occasions.
An extraordinary meeting of the Governors of Penlan will take place on Thursday, 15th March at 4.00 p.m. when new instructions and advice on how to proceed will be forthcoming.”
16.	I do not have a copy of the letter of 7 March 2001 referred to in this letter.  
17.	The claimant points in particular to the penultimate paragraph of this letter where the Headteacher is informing the LEA on 9 March that he would not be able to guarantee the claimant’s health and safety.
18.	I turn now to the letter which is at the centre of this case.  On 13 March the Headteacher wrote the following letter to the parents (page B30):
“The NAS/UWT are taking continuous industrial action short of strike action and will not accept the direction of the Penlan School Headteacher to teach your son [A] as from 15th March 2001.
I am therefore placing [A] on a restricted timetable as from Thursday, 15th March.
Only five members of staff are available to teach [A] out of a total of thirty-two teachers.  You will realise that [A] will therefore have a severely restricted timetable.
I will not be able to guarantee his health and safety throughout the day as I have my own work to do and on occasion could be away from school.
There is an extraordinary meeting of the Governing Body on Thursday, 15th March at 4.00 p.m. when the matter will be discussed and new instructions and advice taken.
I will keep you informed of all developments.”
19.	The situation described in the third paragraph of the letter, namely that five members of staff were available to teach the claimant soon changed when all three of the unions at the school adopted the same decision not to teach or supervise the claimant.  
20.	The thrust of the claimant’s attack relates to the fifth paragraph of the letter. 
21.	Mr Engelman points out that under Circular 14/96 the school must do all that is reasonably practicable to ensure the health and safety and welfare of employees and must make sure that others such as pupils and visitors are not put at risk (page B119).
22.	Mr Engelman submitted that the paragraph should be read as referring only to a situation lasting a day or so.  Neither T or his solicitors read it that way and there is nothing in the subsequent correspondence to suggest that that was how it was to be read.  
23.	Mr Engelman accepted that at no stage was that paragraph retracted until, so he submitted, by implication on 9 July 2001.  On that day Mrs E Davies, the Head of Litigation and Common Law for the third defendant, wrote a letter to the claimant’s solicitors stating that the claimant remained on the role of pupils at the school and could return there at any time during the remaining term.  I take the view that this letter did not amount to a retraction of the challenged paragraph. 
24.	In a letter dated 30 March 2001 the claimant’s solicitors wrote (page B27):
“It is our contention that the refusal of the school to teach [A] following his full reintegration on 13th February after the decision of the Appeal Panel amounts to an unlawful exclusion.  S.64(4) School Standards and Framework Act 1998 provides that a head teacher may exclude only on disciplinary grounds.  The reason for the head teacher’s insistence that he not attend school is threatened industrial action by the teachers and the fact that he cannot guarantee the child’s health and safety were he to come into school.
The Penlan School is a maintained school and thus [A]’s education at the Penlan School is the responsibility of Swansea City and County.  Further, the local authority is under a duty to ensure the health and safety of any child at school.  [A] has now been out of school since the 15th March.  You have made no proposals for his education.
[A] needs full-time education.  He has already missed a significant amount of education this year, which is the first of his GCSE course.  We have not seen any proposals from you either as to how [A] is to be placed back in Penlan or how you would ensure that he receives alternative, suitable, full-time education.”
25.	That letter makes it clear that the solicitors understood that the Headteacher could not guarantee the claimant’s health and safety were he to come to school.  I was not shown any correspondence from the defendants which contradicted the assertion in the last sentence of the first paragraph of that letter.  
26.	The claimant’s father refers to a phone call from the Headteacher on 13 March in which he was told that the claimant could go to school the next day but that the Headteacher “could not guarantee his health or safety were he to go to school.”  On 15th March the Headteacher phoned him and offered to arrange for the claimant to go to college in Swansea part-time.  In paragraph 8 of his statement the claimant’s father writes (page B19):
“I decided that on 20th March I could not continue to send [A] into Penlan following a letter from Mr Guy of 13th March, saying once again that he could not guarantee [A]’s health and safety if he came into school and offering him a very restricted timetable.”
27.	In my judgment that paragraph meant and was intended to mean that the Headteacher could not guarantee the health and safety of the claimant should he return to school.  I am firmly of the view that the claimant’s father was entitled to treat that as a strong warning as to the possible consequences to A should he return to the school and as strong advice that he should not do so.  The parents were, in effect, being told that A would not receive the normal supervision and guidance that pupils receive and thus he was at risk of accidents which would normally be prevented and at risk from other pupils.  Mr Guy writes in his statement that he had never refused education to A (page F16).  Apart from this, he does not suggest that the paragraph should be read in some benign manner.  A’s parents were entitled, in my judgment, to treat the letter as, in effect, a letter excluding A from the school. There is nothing in the documents before me to suggest the contrary.  That warning and advice remained operative at least until the end of term 
28.	On 15 March, as anticipated in the Headteacher’s letter of 13 March to the parents, the Governors met.  They were given a number of letters including the letter sent to the claimant’s parents on 13 March and the letter sent to Mr Parry.  At the meeting the Headteacher informed the Governing Body that he himself had been instructed by his union not to teach the claimant “as it would impair his role as Headteacher”.  The Governing Body were told that “only 3 hours maths tuition could be provided” for the claimant (page F29).  According to the minutes (page F29):
“After a lengthy discussion, it was resolved to:- 
(a)  give plenary powers to the Headteacher to employ supply teachers if required.
(b)  that contact be made to the parents of [A] to enquire whether they would agree to educational provision being made for [A] on an alternative site.
(c)  request that the LEA conciliate with the Teaching Unions to try and resolve the matter.
(d)  that the Governing Body defer their decision until the LEA report back on their conciliatory meeting with the Unions.
(e)  that a Governing Body be arranged as soon as the LEA information is received.”
29.	The minutes record no discussion about the challenged paragraph in the letter of 13th March.
30.	Mr Engelman submitted that if the letter were to be read as excluding A from the school, the Headteacher’s decision so do was a reasonable exercise of the discretion invested in him. 
31.	Mr Engelman relied upon a recent decision of the Court of Appeal In the matter of an application for judicial review L. v. J. and W. v. B., unreported Tuesday 24 July 2001.  The Court of Appeal had to decide the meaning of the word “reinstatement” in the provisions of the School Standards and Framework Act 1998 dealing with reinstatement following a decision of a governing body to require reinstatement or following a decision of an appeal panel that a pupil should be reinstated.  As in this case, the teachers were taking industrial action following a decision by an appeal panel that a pupil should be reinstated. Laws L.J held that a pupil is reinstated if he is no longer excluded: 
“The notion of reinstatement cannot in my judgment demand a precise, or even approximate, restoration of the conditions in which the pupil’s life at school carried on before his exclusion. … ”  The reality is that once he is reinstated, his exclusion is cancelled, and he is to be treated like any other pupil; and in respect of any pupil, special or particular measures or initiatives may be required at any time.” (Paragraph 26)  
32.	Both Clarke and Thorpe L.L.J. agreed with those propositions.  
33.	Laws L.J  went on to say that in his view: 
“The true debate in this case concerns the decisions of the Headteacher ... as to the conditions of L’s reintegration in the school.”  
He pointed out that the “pressures created by the position taken by the teaching unions” are not logically dependent upon the statutory process of exclusion followed by reinstatement (paragraph 27).  
34.	He held that the exercise of the discretionary power by the Headteacher is not a distinct discretion arising under the Act of 1998 as to the appropriate mode of response to the decision of an Appeal Panel to require reinstatement “but rather the general discretion of the Headteacher, and behind him the Governors, as to the running of the school.”  When exercising that discretion the threat of industrial action was a matter which the Headteacher had to take into account.  
“I cannot see how the Head or the Governors, owing duties as plainly they do to all the school’s pupils, could fail to reflect and decide what will be a responsible position to take in the light of the unions’ attitude.”
35.	Laws L.J. went on to say:
“At all events the Head and the Governors have to strike a balance between the interests of the reinstated pupil and the interests of all the others.”
36.	He continued that what they must not do is to base any action or decision on the view of the merits of the reinstated pupil’s case which is at variance with the conclusions of the Appeal Panel.
37.	As to judicial review Laws L.J. said (paragraph 29):
“... It seems to me that such a judicial review as this should proceed on the basis that the Head and the Governors are required to act proportionately to any threat of industrial action.  That is, they should consider what is the least derogation from the pupil’s full reintegration into the school that must be conceded so as to secure the protection of the other pupils’ interests.”
38.	He also said that this Court exercises only a secondary judgment.
39.	In one of the two cases before the Court of Appeal, namely that of L, it was clear that he had returned to school, he was being supervised by a highly experienced teacher who had retired from the school and if anything, according to the school, was doing better than he had before.  All work had to be undertaken “under supervision in the parlour at the reception area of the school”.  There was to be no contact with other members of the school at any time during the course of the school day or in the journey to and from school.  Steps were taken to ensure that L did not meet other pupils, including the provision of a dedicated taxi.  Mr Engelman submitted that the Court of Appeal had accepted as lawful proposals made at some earlier meeting which involved L staying at home or going to an Education Support Centre.  In my judgment the Court of Appeal were not considering the lawfulness of those earlier proposals.
40.	Whilst accepting that the Headteacher and the Governing Body have a wide discretion following the decision of an Appeal Panel to require reinstatement and whilst having considerable sympathy for the position in which he found himself, I have no hesitation in reaching the conclusion that by including in the letter of 13 March the challenged paragraph, the Headteacher acted in a manner which was manifestly unreasonable and disproportionate.  That action comes no where near “the least derogation from the pupil’s full reintegration into the school.”  I particularly bear in mind that A had already been fully reintegrated into the school for one month and that there had been no further disciplinary problems. 
41.	It was submitted on behalf of the claimant that a Headteacher may only exclude a pupil from a maintained school for disciplinary reasons.  She submitted that this was an exclusion and one not sanctioned by section 64 of the 1998 Act.  I do not need to decide whether that is right.  It is sufficient to say that the existence of section 64 is another factor which lends further support to my conclusion that the Headteacher acted in a manifestly unreasonable and disproportionate  manner.
42.	If the letter had stated no more than that the claimant should stay away from school until such time as the Governors meeting could be held and the necessary steps taken, then it may be that I would have reached a different conclusion than that which I have reached.  Whilst, I repeat, having considerable sympathy with the Headteacher in the predicament in which he found himself, the solution which he adopted contained in the challenged paragraph in the letter of 13th March was not a solution which was reasonably open to him applying the judgment of Laws L.J.. 
43.	 Miss Hamilton also sought to rely upon the provisions of the ECHR.  Given my conclusion it is not necessary for me, at least at this stage, to consider those submissions.
44.	For these reasons I grant a declaration (albeit not in the precise terms sought) that the Headteacher acted in an unlawful manner by including within his letter of 13 March the challenged paragraph, the effect of which was that A was being excluded from school. 
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MR JUSTICE HOOPER:  Thank you Miss Spencer and Mr Engelman for the comments, which I have incorporated.  Indeed in paragraph 1, the last sentence you will see that I have added in the part about his name remaining on the roll.
MR ENGLEMAN:  May I just say that unfortunately your Lordship's judgment has not reached me, so I have not had an opportunity to comment on it.  Still less have I had an opportunity to formulate an application for permission, if so advised.
MR JUSTICE HOOPER:  I am very sorry, I thought it had got to you.
MR ENGLEMAN:  Regrettably my clerks ‑ unless they are not telling me the truth ‑ did not receive one until ‑‑
MR JUSTICE HOOPER:  You should have got one personally this morning.  It was faxed to your chambers at 8.30 this morning.
MS SPENCER:  My Lord, I can confirm that mine arrived, so ...
MR ENGLEMAN:  Unfortunately there has clearly ‑‑
MR JUSTICE HOOPER:  Do you want to have time to read it through?
MR ENGLEMAN:  Could I have five minutes?
MR JUSTICE HOOPER:  I have another two cases to go. Would it inconvenience you if we put it back for a  while?
MS SPENCER:  Not at all, my Lord.
MR JUSTICE HOOPER:  Thank you, all right.  About twenty minutes.  Let me finish off the case I am right in the middle of doing.
MR ENGLEMAN:  I am very grateful.
MR JUSTICE HOOPER:  So you do not know the result.
      For reasons I am handing down, subject to any corrections after Mr Engelman has read it, this application succeeds in part, because we have not dealt with it all.  Thank you.
     (The case was adjourned for a short time.)
MR JUSTICE HOOPER:  Yes.  Now, Mr Engelman?
MR ENGLEMAN:  I am very grateful for the opportunity your Lordship has given me to read the judgment.  There are four matters. Firstly, I am glad to tell your Lordship that the parties have reached agreement as to the future of A's education.  That is contained in a letter from those instructing me of 31st August, ie today, and a letter from Mr Spencer at the Children's Legal Centre.
MR JUSTICE HOOPER:  Do I need to read it if those are agreed?  As long you are agreed.  Do you want to put that as part of the order?  I will leave the two of you to draft that. 
MS SPENCER:  Certainly if we can submit it to the court next week.
MR JUSTICE HOOPER:  When will you submit it?
MR ENGLEMAN:  I am in court all day Monday.  Tuesday I hope, if that is convenient to my learned friend.
MS SPENCER:  I am actually working in Romania next week so that leaves ‑‑
MR JUSTICE HOOPER:  Why can you not go out and do it now?
MR ENGLEMAN:  I am sure we can.
MR JUSTICE HOOPER:  Do it now and start your weekend when it is finished.
MR ENGLEMAN:  Yes, thank you very much.
MR JUSTICE HOOPER:  Then hand it back to the associate, even if it is in handwriting, signed by both of you on that part of it.  Thank you.
MR ENGLEMAN:  That is the first matter.  The second matter is the form of the order.
MR JUSTICE HOOPER:  Yes.
MR ENGLEMAN:  Your Lordship said in paragraph 44 of his judgment that the precise terms of the declaration are still to be worked out "(albeit not in the precise terms sought)".  I would be content with a declaration along the lines of the second and fourth line in paragraph 44.
MR JUSTICE HOOPER: "The headteacher acted in an unlawful  manner by including within his letter of 13 March the paragraph ..."  Then we can set the paragraph out,  "... the effect of which was that A was being excluded from school."
MR ENGLEMAN:  Certainly.
MR JUSTICE HOOPER:  Are you happy with that?
MS SPENCER:  Yes, we are.
MR JUSTICE HOOPER:  There you are, you can do that as part of your homework.
MR ENGLEMAN:  I am grateful, adding to my homework every minute.
      The third matter is the matter of costs.
MR JUSTICE HOOPER:  Yes.
MR ENGLEMAN:  I imagine my friend will apply for the costs of today.
MS SPENCER:  Indeed, my Lord.
MR ENGLEMAN:  I have no objection to, of course, legal aid taxation of my friend's costs or whatever the appropriate term now ‑ public funding taxation.
MR JUSTICE HOOPER:  Whatever it is, I grant it, yes.
MR ENGLEMAN:  So far as the costs against the defendant are concerned, I would urge your Lordship not to grant the whole of the costs against the defendant.  I would submit the appropriate order will be 50%.  If I can just remind the court ‑‑ 
MR JUSTICE HOOPER:  Tell me what is going to happen about the rest of the claim; is everything sorted out now?
MR ENGLEMAN:  My Lord, I think as far as we are concerned only the future of A's education.  The remaining aspect of the claim I thought was the issue of damages.
MR JUSTICE HOOPER:  Are you continuing with that?
MS SPENCER:  I have still to consult with counsel in this matter, my Lord.  She is presently out of the country.  But we do not envisage that there will be an application for damages, but I would not like to tie ourselves down.
MR JUSTICE HOOPER:  That would be a very sensible course I think.
MS SPENCER:  Indeed, my Lord.  But I do not feel that I have had ample opportunity to consult with counsel on that matter.
MR JUSTICE HOOPER:  I would like that cleared up quickly, simply because the Adminstrative Court can then say this case is finished.
MS SPENCER:  Yes, indeed.  If I could say that we would be able to confirm that in writing to the court and to the respondents some time during the week commencing 10th September. 
MR JUSTICE HOOPER:  Yes.
MS SPENCER:  That obviously allows me to ...
MR JUSTICE HOOPER:  Would you put in your order ‑ I am sorry to give you so much work ‑ but include in the order that the claimant undertakes to inform the Adminstrative Court in the week commencing, whether it was, whether or not the claimant intends to continue with the claim for damages?
MR ENGLEMAN:  I am much obliged.  My Lord, that deals with ‑‑
MR JUSTICE HOOPER:  Let us proceed on the assumption that that claim is not going to be continued with, why only 50%?
MR ENGLEMAN:  I do not want to trouble the court, but if one looks at B85 of the bundle, which sets out the relief sought, the only element of relief actually granted is the declaration sought in paragraph 1.  The rest of the matters set out there have not been sought and not been granted.  In fact my learned friend Miss Hamilton told me by telephone last week ‑ I know she is not here today ‑ but told me by telephone I think on Friday of last week that they were pursuing just this one element.  The majority of this claim has not been pursued.
MR JUSTICE HOOPER:  That is in part because of the  passage of time.
MS SPENCER:  Yes.  Indeed, those would be my submissions, my Lord.  Looking through the relief sought on B5, the situation clearly changed because Penlan School ceased to exist, therefore a number of the items listed there no longer become viable.  There is also the point relating to the reinstatement, that is not relevant.  Also there is the point on the provision of education.  Not until today, indeed this week, have negotiations concluded because they have not up until now really been carried out in the spirit of cooperation, shall we say.
MR JUSTICE HOOPER:  Thank you very much.  Is there anything more you want to say?
MR ENGLEMAN:  Yes, I do.  As far as the claim is concerned, the claimant was told as early as 9th July that he could attend the Penlan School.  Your Lordship will remember that from the argument and indeed his judgment.  Between 9th July and today's date there have been substantial negotiations carried out.  They have not just manifested themselves this week; they have been going on for some time.  We have made offers as early as 9th July as to the future disposal of this case.  I make it plain that, whatever happens as a result of my the links application, the future of A's education will not  be affected.  We have tried to dispose of this matter in a way which is satisfactory but failed.  Whatever my friend may say, the majority of the relief sought has not been pursued.
MR JUSTICE HOOPER:  The negotiations over the future, would you be able to say to me that on such and such a date we made an offer which was in reality the offer that was ultimately accepted?
MR ENGLEMAN:  I think I can say yes to that.  On 7th August we made an offer.  Then at the beginning of this week there was a further offer, which was thought to have been accepted by the defendants, when Miss Hamilton spoke to my solicitors and had agreed, or so we thought everything in this case.
MR JUSTICE HOOPER:  What do you say?
MS SPENCER:  I would have to disagree with my friend's submissions.  If I could just refer you to G11, it was a meeting held on 11th July with Mr Thomas and representatives from the LEA, offering a package, which was indeed very limited ‑ it only included motor vehicle maintenance, English, maths and sports.  My submission is that was not adequate education.
MR JUSTICE HOOPER:  I am not interested as to whether it was adequate, but how does it relate to what you have finally agreed? 
MS SPENCER:  Now we have agreed substantially more, in that he is now being offered GCSE English, maths, history, biology.
MR JUSTICE HOOPER:  When were you first offered that?
MS SPENCER:  It was concluded last evening.  There is one slightly outstanding matter, which is information technology.
MR JUSTICE HOOPER:  Do not tell me about outstanding matters.
MS SPENCER:  Excuse me.
MR JUSTICE HOOPER:  Thank you very much.  You can have the full costs.  Yes, thank you, Mr Engelman.  Is there anything more?
MR ENGLEMAN:  The last matter is the question of permission to appeal on the usual basis set out in Part 52.2.  I will not remind the court of it unless I am asked to.  There are three matters which give rise to the request for permission.  They are these.  We firstly submit it is appropriate for the Court of Appeal to adjudicate on the main issue, namely whether the letter of 13th March 2001, constitutes an exclusion of A from the school.  Your Lordship has dealt with it in paragraphs 27 and 39 in his judgment.
      The second matter is, if the defendant is wrong, is your Lordship right in his conclusion that such a  decision is manifestly unreasonable and disproportionate? That is paragraph 40 of his judgment.
      The third point ‑ I am sorry to take them in slightly different order from the court ‑ if the defendant is wrong in the above two submissions, is such a decision nonetheless not a proper exercise of the headteacher's discretion vouchsafed by the Court of Appeal decision in L v J and W v B ‑ again paragraph 40 of your Lordship's judgment.
MR JUSTICE HOOPER:  I am trying to take a note.  The first thing is you wish to argue before the Court of Appeal my conclusion in paragraph, what is it?
MR ENGLEMAN:  27 and 39 ‑ primarily 27 ‑ is wrong as a matter of law, namely that the letter does not constitute an exclusion of A, an unlawful exclusion of A.
MR JUSTICE HOOPER:  It sounds like a conclusion of fact rather than law.
MR ENGLEMAN:  I can quite see, if I may say so, that it could be argued that it is a conclusion of fact, but the result is ‑‑
MR JUSTICE HOOPER:  I have to tell the Court of Appeal ‑ I have to fill in a form ‑ what your ground is, albeit, of course, you can always amend.  But it is wrong as a matter of law or wrong as a matter of fact. 
MR ENGLEMAN:  Wrong as a matter of both fact and law.
MR JUSTICE HOOPER:  Fact and law.
MS SPENCER:  But now your Lordship presses me on that, it is really a matter of law.
MR JUSTICE HOOPER:  If it is, I am writing it down and all I want to do is record what you are saying, not argue with you.
MR ENGLEMAN:  It is a matter of law.
MR JUSTICE HOOPER:  Your second point.
MR ENGLEMAN:  The second point is if it is right as a matter of law, is such a decision nonetheless manifestly unreasonable and disproportionate?
MR JUSTICE HOOPER:  Yes.
MR ENGLEMAN:  The third point again, nonetheless, is such a decision not within the discretion of the headteacher vouchsafed for by the Court of Appeal in L v J?
MR JUSTICE HOOPER:  Thank you, yes.
MR ENGLEMAN:  If I may just add one point of exegis on these three points which have been divided up for your Lordship's convenience.  The point is that your Lordship has rejected the submission that the headteacher could have achieved this result by simply saying: the boy should not attend the school.  The headteacher himself and indeed those advising him, which is not the local  education authority but the relevant trades union, are concerned that headteachers up and down the country, when faced this sort of situation, which unfortunately is becoming more common, need to know whether they act with or without the law.  They have, of course, the benefit of your Lordship's judgment, but they would like to test that in the Court of Appeal and that is the primary reason for seeking permission to appeal.
MR JUSTICE HOOPER:  Thank you very much indeed.  Leave to appeal is refused.  I will put my reasons down on the sheet of paper.  Yes, thank you both very much.