QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF H||(CLAIMANT)|
|CORNWALL COUNTY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR PHILIP COPPEL (instructed by Cornwall County Council Legal Services) appeared on behalf of the DEFENDANT
Crown Copyright ©
"128. In some cases it will not be practical for the panel to direct reinstatement because the parent has made clear he or she does not want it, or because the child has become too old to return to the school.
129. There may be exceptional cases where the panel considers that the permanent exclusion should not have taken place, but that resinstatement in the excluding school is not a practical way forward in the best interests of all concerned. This could include situtaions where there has been an irretrievable breakdown in relations between pupil and teachers; or between the pupil and other pupils involved in the exclusion or appeal process. Before deciding that there are exceptional circumstances the panel should try to establish what efforts have been made to address a possible breakdown in relations. Balancing the interests of the pupil and the whole school community may suggest that reinstatement would not be the most sensible outcome in such cases. In considering whether such exceptional circumstances exist the panel should consider representations from the governors, the headteacher and from the parent (or pupil if 18 or over)."
"The panel came to the view that though the incident was serious taking into account the guidance in Circular 1/2004, it did not feel that the pattern of behaviour was so serious that permanent exclusion was the only option and felt that other options were available to retain M within the school. At this point the panel did not consider him to be a threat to the health and welfare of others within the school. That said his behaviour is not condoned and M himself did not seem to appreciate the degree of offence which he caused."
"The panel decided it was not practical to direct M's reinstatement given your clearly stated view that there had been a breakdown in communications between yourself and that you therefore did not wish for M to be reinstated although otherwise reinstatement would have been appropriate. M's record will show that the permanent exclusion was overturned on appeal even though reinstatement was not directed."
"In coming to a decision the panel will first consider the issue of whether the permanent exclusion was a reasonable response. In the case of M, the panel felt that he should not have been permanently excluded and the reasons for this were set out in the letter of 27th June. Having come to that view, the panel then had to consider whether to direct reinstatement. Not directing reinstatement is exceptional, I accept, but the panel will be guided by what the parent says to it. At the hearing, on two occasions, you expressed the view that you did not think that it would be in M's best interests to return to the A School. On the second occasion you said that you felt that relationships with the A School had broken down. In the face of these two statements, the panel did not feel it should direct reinstatement because this would be a binding decision and would have been clearly against your express wishes at the hearing. Hence the decision taken which, in the circumstances, I think you might agree was not unhelpful to you in the context of the comments which you had made.
Since then, however, you have reconsidered and feel that M should be readmitted to the A School. The panel, having made its decision, has no remit to revisit at no time and, therefore, whilst you may have changed your view the decision of the panel stands and I have no authority to amend it in any way."
"... result in prejudice to the provision of efficient education and/or the efficient use of resources."
The Statutory Scheme
"(2) Subject to subsections (3) and (6) and section 87 (children excluded from two or more schools), a local education authority and the governing body of a maintained school shall comply with any preference expressed in accordance with arrangements made under subsection (1).
(3) The duty imposed by subsection (2) does not apply --
(a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources;
(b) if the preferred school is a foundation or voluntary aided school and compliance with the preference would be incompatible with any special arrangements under section 91 (admission arrangements to preserve the religious character of a foundation or voluntary aided school); or
(c) if the arrangements for admission to the preferred school --
(i) are wholly based on selection by reference to ability or aptitude, and
(ii) are so based with a view to admitting only pupils with high ability or with aptitude,
and compliance with the preference would be incompatible with selection under those arrangements."
"(3) It shall be the duty of --
(a) each of the bodies and persons mentioned in subsection (1) when exercising functions under this Chapter, and
(b) any other person when exercising any function for the purposes of the discharge by a local education authority, or the governing body of a maintained school, of functions under this Chapter,
to have regard to any relevant provisions of the code."
It in fact directs bodies to have regard to the relevant provisions of a code made under that chapter of that statute.
"7.5. It is normally unacceptable for a school to refuse to admit a child on the basis of their behaviour elsewhere (though see paragraph 7.7 for the limited exceptions to this rule). It is also unacceptable for a school to refuse to admit a child thought to be potentially disruptive, or who has exhibited challenging behaviour, on the grounds that that child ought first to be assessed for special educational needs. The law disapplies the normal principle that parents' preferences should be compiled with only in the 'twice excluded' situation described in the previous paragraph. If a pupil, once admitted, is found to be seriously and persistently disruptive, then the school may consider disciplinary action, including temporary and, ultimately, permanent exclusion procedures.
7.6. Some under subscribed schools may find that they are required to admit an undue proportion of pupils with a recent history of challenging behaviour, which may have led to a permanent exclusion from another school. Other schools may find they are unable to take a share of such pupils if they were over subscribed. Admission Forums must discuss how local admission arrangements might work to allow all schools to admit a more even share of such children, including children excluded from other schools, and admission authorities must have regard to their Admission Forum's advice, school and their LEAs should together agree strategies, for example, by being prepared to admit some pupils above the admission number during the year in popular schools. We expect admission authorities to comply with any locally agreed protocols for the admission of such pupils.
7.7. Exceptionally, outside the normal year of entry, admission authorities for certain schools, or Academies, may decide to refuse to admit a challenging child where there are places available, on the grounds that admission would prejudice the provision of efficient education or the efficient use of resources. This will normally only be appropriate where a school has a particularly high concentration of pupils with challenging behaviour, or the child is particularly challenging, and in either case the school:
a. is under special measures or has recently come out of them (within the last two years); or
b. has been identified by OFSTED as having serious weaknesses; or
c. is subject to a formal warning notice; or
d. is a Fresh Start school or Academy open for less than two years; or.
e. is a secondary school where less than 25 per cent of whose pupils are achieving 5 or more GCSEs at grades A*-C."
"4.51. Admission authorities are under a duty, under section 86(2) of the 1998 Act (as amended by the Education Act 2002), to comply with a parental preference except in certain limited circumstances, namely:
-- where to admit the child would prejudice the provision of efficient education or the efficient use of resources. LEAs and governing bodies may not refuse to admit children to any year group in which pupils are normally admitted to the school on these grounds unless the number of preferences or applications for places in that relevant year group exceeds the school's admission number. Prejudice may arise by reason of measures that would be required to be taken to comply with the limit on infant class sizes (referred to in this guidance as 'class size prejudice' -- see paragraphs 4.53-4.60);
-- where the school is wholly selective by high ability or by aptitude, and the admission of the pupil would be incompatible with such selection under the admission arrangements (partially selective schools, and those which operate banding, must admit up to their published admission numbers). Schools which are partially selective -- sometimes referred to as 'bilateral schools' or as having 'grammar school streams' -- may not keep selective places empty. Only schools that are wholly selective by high academic ability or by aptitude, and those admitting to their sixth form by reference to academic ability, can keep places empty if they do not have sufficient applicants of the required standard;
-- where the child has been permanently excluded from two or more schools and at least one of the exclusions took place after 1st September 1997. The requirement to comply with parental preference is disapplied for two years after the second exclusion. However, a child is not to be taken as having been permanently excluded for these purposes where: the exclusion took place before the child reached compulsory school age; the pupil was reinstated following exclusion; or a governing body reviewing the decision to permanently exclude a pupil, or an appeal panel hearing an appeal, decided that it would have been appropriate for them to direct that the pupil be reinstated had they considered it practical for them to do so in the circumstances. A permanent exclusion is regarded as taking effect from the first school day the headteacher has told the pupil not to attend the school;
-- where state maintained boarding schools have set separate admission numbers for day pupils and boarding pupils and have more applicants for one or other category than places available, even though places may be available in the other category;
-- where another place has been offered, as identified under co-ordinated arrangements.
Applications outside the normal time of entry
4.74. Even if there are no places available in the appropriate year group, admission authorities must formally consider 'casual applications' and, if refusing admission, should inform parents in writing why their application was unsuccessful, advising them of their right of appeal.
4.75. When considering applications to years other than the normal year of entry, admissions authorities will rarely be able to prove prejudice as a ground for refusing an additional pupil while numbers remain below the published admission number which was in operation when that year group was the normal year group for admission. And they should expect to go above that number where the school's accommodation and/or resources have increased since then. Admission authorities may refuse a child entry to a year group outside the normal year of entry if the circumstances described in paragraph 4.78 apply. Casual applications for places in an infant class should normally be refused if admission of a child would result in the class size limit being exceeded (unless the child would be treated as an 'excepted pupil' as described at paragraph 4.54).
Pupils with challenging behaviour
4.78. The School Admissions Code of Practice refers (at paragraph 7.5) to instances where it might be appropriate to refuse admission of a challenging child, even when places are available in a school. Appeal panels will need to take account of these considerations when hearing appeals for pupils who fall within this category, as well, of course, as considering the arguments put forward by the parents for their child to be admitted to the school in question. It is important in these cases that the panel carefully considers whether the admission authority has clearly proven that admission of the child would be prejudicial."
"The panel decided it was not practical to direct M's reinstatement given your clearly stated view that there had been a breakdown in communications between yourself and that you therefore did not wish for M to be reinstated although otherwise reinstatement would have been appropriate."
Mr Hyams draws particular attention to the final words.
"Had this been an option at the exclusion appeal then arguments for and against this could have been put to the panel. We did not have this opportunity as it was not an option."
"At this point the panel did not consider him to be a threat to the health and welfare of others within the school."
"In relation to an appeal made under the arrangements referred to in regulation 3(a) to (d), the matters to be taken into account by an appeal, in considering an appeal, shall include --
(a) any preference expressed by the appellant in respect of the child as mentioned in section 86, and
(b) the arrangements for the admission of pupils published by the local education authority or the governing body in accordance with regulations made under section 92."
and in particular to section 86(3)(a) of the 1998 Act, which is set out above and which defines the critical test to be applied.
"In cases with an inquisitorial element, the approach, as Diplock LJ explained, is not the same as in strict common law litigation. Since the court has its own function to perform to arrive at the right result, independent of the submissions of the parties, it has to adopt a degree of flexibility to an application to strike out or to refuse to hear evidence on certain issues. But the underlying principle not to relitigate the same issue twice applies in our all cases of an inquisitorial nature including Children Act cases."
"Mr Priestly -- the basis of the CSA's case was sufficient for the appeal to be brought. I do feel it was a legislative grounds to refuse.
Mr Byrne -- in our opinion they were justified in their refusal on these grounds, cannot comment on law.
Mr Neville -- we were persuaded that they had justifiable grounds to refuse."
"On issue of behaviour, heard reference to SEN and those with statements. A designation of this need does not mean that the child is disruptive. The figures provided to the panel must be treated carefully as Code of Practice states challenging behaviour.
Code of Practice says there are the grounds if refused on prejudice.
Is the school under special measures -- no."
That indicates that Mr Scrace in his submission quite rightly was running through the criteria set out in paragraph 7.7 of the Code.
"Current Code dated 2003 -- been amended due to this case.
Extract from Code -- paragraph 31. I believe that the current equivalent is paragraph 7.7 'exceptionally outside normal year of entry'.
I think Mrs Hunter has demonstrated that they have a high number of challenging behaviour but also that M himself is a challenging pupil.
The authority is not presenting this as a normal case. Code will not cover all due to exceptional circumstances."
Then there is reference to the Cardiff case which goes to a point which is no longer a live issue. Then there are the words:
"Code of Practice -- heard the evidence of Mrs Turner and Mrs Hunter of M's impact on lessons and staff particularly female staff."
"Grateful that Miss Main has made reference to revised Code.
'exceptionally outside normal year of entry may refuse when more are places available when prejudice normally only appropriate where child had particular challenging behaviour'."
"18 per cent have statements and over 25 per cent SEN. What is the national percentage?
Mrs Hunter: Our number of statemented is significantly higher and those on the registered (sic)."