England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an application for Judicial Review

		Royal Courts of Justice Strand. London. WC2A 2LL
		4 April 2007

Mr Justice Walker :

1. The claimant is a 15 year old boy. An order has been made that no report of these proceedings shall directly or indirectly identify him, his address, or any school attended by him. I shall refer to him as "T", and to others by appropriate initials. Until an incident in early May 2006 T attended a mainstream secondary school which I shall refer to as "X College" or "the College". When T started at the College in the autumn of 2002 the College was informed in a letter dated 26.9.02 from Dr H, Senior Clinical Medical Officer at the School Health Department of the local NHS Trust, that she had recently diagnosed T as having Asperger's Syndrome. Asperger's Syndrome is a form of Autistic Spectrum Disorder which results in a qualitative impairment in social interaction. The letter stated, among other things:

"I think [T] is likely to land himself in trouble in school because of his communication difficulties. He is unable to pick up on non-verbal cues, irritates people, pushes them too far and doesn't know how or when to back off…. [T] can act impulsively and can over react to situations and although he is a gentle boy he may hit out and land himself in trouble because of this."

2. It is common ground that on 4 May 2006 T assaulted a teacher whom I shall refer to as "Mr GS". Mr GS was not T's teacher, but the previous day had confiscated a cap T was wearing. It is also common ground that those who were considering the consequence of this assault were under an obligation to comply with the Disability Discrimination Act 1995 as amended ("the DDA").
3. The first step taken by the Principal of the College on learning of the assault was an interim decision that T should be temporarily excluded from the school. On 15 May 2006 the Principal wrote to T's parents stating that he had decided to make T's exclusion permanent. That decision was the subject of an oral hearing before the school governors discipline committee ("the Disciplinary Committee") on 6 June 2006. That committee upheld the decision. T's mother appealed to the independent appeal panel of the county council ("the Panel").
4. On 28 June 2006 the Panel held a meeting to consider the appeal. Its decision was notified in a letter to T's mother dated the following day, 29 June 2006. T now seeks judicial review of that decision. An important part of his claim is that the letter of 29 June 2006, which I shall refer to as "the Decision Letter", was inadequate. I therefore set out the relevant part of the letter in full, adding my own numbering for paragraphs and for 5 bullet points towards the end of the letter:

"[5] The Panel first considered the submission presented by Mr [C], the Principal of the College, and Mr [D], Chairman of the Governing Body. They were accompanied by Miss [F], Head of House and Mr [CF], Assistant Principal/SENCO. The Panel noted that the College's stance on exclusion was that it would normally wish to avoid any exclusion wherever possible and that alternative strategies or sanctions would be used wherever possible and safe to do so.

[6] The Panel noted that the … Disciplinary Committee … had, as required, considered the Principal's decision to permanently exclude [T]. The Principal had taken that decision because of the serious nature of the incident which took place on 4 May 2006 involving an assault upon a member of staff and in view of the serious concerns for the future safety and protection of other pupils and staff at the College, and for [T] himself. In view of the severity of the incident and its impact upon the discipline of the College it was felt that no alternative form of sanction would have been appropriate.

[7] The Panel further noted that the Disciplinary Committee had met on 6 June 2006 and had confirmed the Principal's decision to exclude [T] having considered the facts of matter and taking into consideration the Secretary of State's Guidance on Exclusion.

[8] The Panel then considered your written submission and the additional comments made by you at the meeting in support of your statement. In summary, and as indicated in your statement, you put forward the view that the College had not provided the education and support [T] needed and deserved, that [T] had Asperger's Syndrome and the College had not provided appropriate support for him for his needs, that he had been discriminated against – although not necessarily intentionally – by virtue of his condition and had been bullied by pupils and member of staff and that the descriptions given by the Governing Body, College and others in their statements upon the events of 4 May 2006 were not a true reflection of what had actually happened. Your view was that [T] had been provoked and that permanent exclusion was not therefore an appropriate response. The Panel noted that you refuted the claims of the College that it had not received any communication from you about [T's] condition or the support – or lack of it – made available while he was a pupil at the College but also noted that, since 2003, no further communication had been received from your medical adviser until after the incident of 4 May 2006.

[9] The Panel also noted the statement from Mr E Lloyd, AEO Exclusion & Alternative Provision, representing the Devon LEA (accompanied by Ms Meacham, Exclusion & Reintegrated Officer) that the College had made appropriate adjustments and allowances for [T], wherever possible, and that in relation to his exclusion, its action and procedures had been consistent with and complied with DfES Circular 10/99 and statutory requirements. The Panel also noted the view of the LEA that the College's actions were consistent with the actions of other Schools in similar circumstances.

[10] The Panel concluded after considering all the submissions, both written and oral, that:

• [10.1] the College was aware of [T's] problems and needs;

• [10.2] the College had used a number of strategies and interventions to help and support [T];

• [10.3] that there was no evidence to support claims of discrimination, provocation or bullying;

• [10.4] that the incident described by the College and witnesses had taken place; and

• [10.5] that, notwithstanding [T's] condition and, in all the circumstances, the action of the Principal and the Governing Body was justified and his permanent exclusion was appropriate and reasonable.

[11] The Panel therefore AGREED to uphold the decision to permanently exclude [T]."

The material before the Panel

5. The rival accounts which the Panel had to consider can be summarised in broad terms:

i) On the one hand T's mother said that after T's status was changed from "School Action Plus" to "School Action" in 2003 he had received inadequate support. In particular, in the months leading up to the incident T had suffered from bullying from a number of children, and his behaviour had deteriorated. This deterioration was noted by the College, but little if anything was done to address it – despite it being well known to the College and despite a promise to look into an assault on T by another child alleged to form part of the bullying. T believed he was being picked on by Mr GS. On 3.5.06 Mr GS had confiscated a cap that T had been given by his elder brother, following which there had been a series of heated oral exchanges between Mr GS and T. The following day, T went twice to the staff room to apologise to Mr GS, but was told each time to go away. T, goaded by other pupils, subsequently went with them to Mr GS's classroom. Following another oral exchange he kicked Mr GS. When Mr GS told T he would be expelled for that, T punched Mr GS in the eye. Mr GS then hit T on his face and grabbed him hard around the back of the neck.

ii) As against this the College said that it was well aware of T's condition and had taken extensive measures to enable him to participate fully. T was not a victim of bullying generally or, in particular, by Mr GS. It was accepted that T was punched by a fellow pupil on one occasion but this was a response to an assault by T on a young girl who herself suffered from Asperger's Syndrome. T was asked to remove a hat by Mr GS on 3.506 because it was in breach of the dress code. He complied with this request but 3-4 minutes later put the hat back on. Mr GS therefore temporarily confiscated T's hat, although T was told it would be returned to him. T reacted by verbally abusing Mr GS. In light of this inappropriate behaviour, the College took steps to calm T down and address his behaviour. Miss F referred T to the behavioural unit. She also followed T around for 20 minutes trying to get T to talk. Unfortunately, he refused and left the school site. On three occasions on 3.5.06, and again on his way to school on 4.5.06 T was witnessed stating that he was going to assault Mr GS. On the morning of 4.5.06 T was told to go and see Miss F. He said that he would but instead went to the staff room looking for Mr GS. As to T intending to apologise to Mr GS, this account was contradicted by a witness who indicated that T had said that he was going to the staff room to hit Mr GS. Mr GS rightly refused to see the Claimant. T went to Mr GS's room and violently assaulted Mr GS by kicking him and punching him. There were a number of pupils present because T had told them of his intentions. Meanwhile Miss F had waited for T, and when he failed to appear sought him out, but was unable to find him before he violently assaulted Mr GS. The College said that, while it accepted that T suffered from Asperger's Syndrome, the pre-meditated nature of T's attack on Mr GS was inconsistent with this being a factor in the attack.

6. A statement of the Governing Body was prepared for the Panel. This took the form of a letter written by Mr D dated 21 June 2006. It emphasised, among other things, that no snap decision had been reached on the day. T had been excluded initially for a short period to allow the immediate heat of the situation to cool down and to allow more time to collect detailed information about what happened. Enclosures to the letter included a report of the findings of the Disciplinary Committee. The report stated:

"Following substantial evidence, including eye witness statements taken immediately after the incident from students and staff, statements from … [Mr. C, Miss. F, T's mother and Dr. H], a process that lasted some 2½ - 3 hours, the committee reviewed all the evidence and decided to uphold the Principal's decision to permanently exclude [T].

This was based upon the fact that, although we were dealing with an Asperger's sufferer, it seemed clear that the incident was pre-meditated (apparently out of character with Asperger's sufferer – although according to witnesses he was bragging about what he was going to do) and its severity was unwarranted. [Dr. H] explained to us, on questioning, that [T] understood right from wrong. On the morning of the incident, although told clearly …to report to [Miss F], he did not. Instead he headed for the staffroom (on two occasions) apparently to 'apologise'. On being told [Mr GS] did not want to see him, he went and waited outside his teaching room.

We decided to uphold this decision for the following reasons:

1. the severity of the offence, notwithstanding his condition;

2. the protection of [T] – that it could happen again, not only self-led but student-led – there was evidence that he had been goaded (20 or more pupils at the scene), a possible increase in the seriousness of another incident given his age and increasing maturity;

3. the protection of staff and students in the future."

7. A statement on behalf of the College opened by recording the history and stating that the College had not taken the decision lightly. It added that the College had a low exclusion rate, and continued:

"Unfortunately, whilst we do actively seek alternative methods to deal with inappropriate behaviour, there is a clearly defined limit to what we will and can tolerate within the college.

An assault on a member of staff cannot be justified in any circumstances so the college had absolutely no alternative but to impose permanent exclusion."

8. The College's statement included background information, a report and additional information prepared by the Principal, a report from the Assistant Principal/SENCO (who was in fact Ms CF, not "Mr" CF as recorded in the Decision Letter), concluding comments, and 23 Appendices, including student and staff accounts of what happened on 3 and 4 May 2006.
9. T's mother lodged an "Appeal Statement". She gave brief reasons for the appeal in manuscript. Her contentions were set out in detail in 8 pages of typescript, which she had prepared for the Disciplinary Committee, and a further 4 pages of typescript which she had prepared for the appeal. The general thrust of her contentions included the assertions summarised in paragraph [8] of the Decision Letter. Other material lodged by T's mother included statements by T setting out his version of what happened in May 2006 and in the months beforehand. T's statements described how he had suffered from bullying from a number of children, including an assault on T requiring him to attend hospital. Earlier in the year he had been wrongly accused of calling Mr GS names. T said in this regard:

"I couldn't believe how aggressive he was towards me and how he was right up in my face. He was so close to my face that I felt bits of his spit hit me in the face. From then on he has been verbally abusing me in the school corridors, after having a go at me for petty little things like my shoes being untied…"

10. Copies were provided by T's mother of letters written by Dr H dated 10.5.06 and 12.6.06.

i) The letter of 10.5.06 stated that people with Asperger's Syndrome would not let a matter rest that was bothering them until it was resolved, and that the "incident of [T's] hat and his need to apologise without being allowed to do so typifies this ... [T] is a frightened and bewildered child. He dealt with an unfortunate situation in a way that is regrettable but entirely understandable in the light of his diagnosis."

ii) The letter of 12.6.06 included the following:

"[T] has severe Asperger's Syndrome. With a huge amount of help from his family he has up until now managed to cope with mainstream education to an extent. However [T] has now been permanently excluded from [the College] … Having attended the [Disciplinary Committee] meeting … it was apparent that although [the College] felt they had an understanding of Asperger's Syndrome they did in fact have little perception of its complexities and implications. I suspect that as a result of this [T's] needs have not been recognised and have therefore not been met …"

11. Also placed before the Panel by T's mother were:

i) A statement from PB, a student who had previously given a statement to the College during its investigation into the incident. PB's statement claimed that on 4.5.06 Mr GS had hit T across the face "with a kind of backhander knocking his glasses off." In relation to bullying of T by Mr GS prior to the incident, PB said: "I have thought about how [Mr GS] had bullied [T] over the months and without [T's] Asperger's I would have lamped him one if he had done the same to me."

ii) A statement from another mother at the school, AW, explaining how her daughter had been subjected to "emotional and verbal bullying" by Mr GS, causing significant unhappiness. She added: "I have watched [T] grow up within his loving and caring family who have high standards and morals and despite dealing with Asperger's Syndrome have guided [T] to maintain their standards. [T] plays an active part in our community, attending church regularly and taking part. He is well liked by the senior members of the village…. I do not believe [T] would have done anything like this without extreme provocation and goading. In my opinion and knowing Mr [GS's] history I have no doubt he is an expert at this".

iii) A letter from Revd W, T's vicar. He had known T for more than 6 years, and explained that T was "probably one of the gentlest children that I know. I have never known him to be aggressive in any way". Revd W also stated that "I know this is not the first time that this particular teacher has allegedly behaved badly towards pupils in the school."

12. Notes kept by the clerk to the Panel indicate that after an introduction from the Panel Chairman evidence was given on behalf of the College by the Principal and Mr D. They were questioned by T's mother and by the Panel. T's mother then gave evidence. At 11.52 a.m. the hearing was adjourned. It resumed at 1210, when the local education authority explained its position, and each of the Principal, Mr D, and T's mother summed up.

The Initial Grounds of Review

13. The grounds for judicial review lodged by the claimant identified five grounds of challenge. All were based on alleged inadequacies in the Decision Letter.
14. Ground 1 was that the Panel had failed to engage with the analysis required under the DDA concerning whether the College had complied with its obligations under that Act. On the assumption that T was disabled within the meaning of the Act, the Panel had been required to decide whether the College had treated T "less favourably than it treats or would treat others ..." The appropriate comparison here was with a child who was not disabled and who had behaved properly (rather than a child who was not disabled but who had behaved as T had done): see M School v CC, PC & Another [2004] ELR 89 at paras 38-46 per Silber J. There was no indication that the IAP asked itself this question. Had it done so, it should plainly have found that T had been treated less favourably.
15. This would then lead to a second stage under which the Panel had to consider whether the less favourable treatment was justified, and whether reasonable steps had been taken to ensure that T was not placed at a substantial disadvantage. There was, however, no reference to the DDA at all in the Decision Letter. The Panel had not exercised its own independent judgment on the facts, and had not addressed the questions which arose under the DDA.
16. Ground 2 was that the Panel was in breach of s 28C(4) of the DDA, which required the Panel to take into account the Code of Practice issued by the Disability Rights Commission ("DRC"). In this regard reference was made to example 5.17E in the DRC Code of Practice, which was concerned with the case of a pupil with autism, and suggested that staff should have been given training in various respects and that for the pupil there might have been "the development of strategies for communicating that he is upset or confused."
17. Ground 3 said that the College was in breach of regulation 7(2) of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 ("the 2002 Regulations"). Regulation 7(2) required the College to take into account guidance from the Department for Education and Science ("DfES"). Relevant guidance, found in Circular 0354/2004 ("the 2004 Circular") stated that in particular for children with special educational needs, including those who are on "School Action" plans, schools should make every effort to avoid excluding pupils and that "Schools should try every practicable means to maintain the pupil in school, including seeking LEA and other professional advice and support at School Action Plus".
18. Ground 4 was that the statement in the Decision Letter that "there was no evidence to support claims of discrimination, provocation or bullying" was manifestly incorrect and failed to take into account material evidence.
19. Ground 5 asserted that the reasoning of the Decision Letter was inadequate. It failed to comply with an "enhanced duty" said to arise from the 2004 Circular, which stated that "The decision letter should give the panel's reasons for its decision in as much detail as possible for the parties to understand why the decision was made". In any event, the reasons were inadequate. They did not address any of the issues identified in grounds 1 to 4.

The Stance Taken On Behalf Of the Panel

20. With commendable realism, the Panel did not oppose the claimant's application for permission to apply for judicial review, although it reserved the right to contend that any relief should be refused because of delay. Permission was accordingly granted by Charles J on the papers on 20.11.06. The Panel requested that it be given the full time permitted by the rules for the production of witness statements. That request did not find favour with Charles J, who on 20.11.06 limited the time for production of witness statements and detailed grounds of opposition to 21 days. That time limit was complied with by the Panel, which produced a witness statement by the Chairman of the Panel ("the Panel Chairman").
21. Reliance was placed on the Panel Chairman's statement in the Panel's detailed grounds of resistance. In reply to the claimant's ground 1, the Panel Chairman's witness statement explained that the Panel had acknowledged that T was disabled, but concluded that the behaviour that resulted in permanent exclusion, namely the violent premeditated assault, was not related to his disability. Paragraph 9 of the Panel Chairman's statement was as follows:

"If contrary to our actual conclusion, we had decided that the behaviour was related to T's disability, I accept that the treatment in question (the exclusion) was less favourable treatment. However, I am of the view that such treatment would have been justified because of the very serious nature of the pre-meditated attack on a member of staff."

22. Paragraphs 10 and following of the statement explained that the Panel considered that the College had taken all reasonable steps to ensure that T was not substantially disadvantaged.
23. As to grounds 2 and 3, the detailed grounds of resistance said - in reliance on the Panel Chairman's statement - that the Panel had regard both to the DRC Code of Practice and the DfES Guidance.
24. In relation to ground 4, the detailed grounds of resistance accepted that T's mother adduced some evidence to support her allegations of discrimination, provocation, or bullying. The complaint in ground 4 was said to be based on "a misreading" of the Decision Letter, which had referred to the written submission and the additional comments made by T's mother at the meeting. Reliance was placed on the Panel Chairman's statement as showing that the Panel had in fact concluded that T's mother had not adduced "any sufficiently persuasive evidence" that T had been bullied, provoked or discriminated against.
25. As to ground 5 the Panel acknowledged an obligation, under paragraph 14 of the Schedule to the 2002 Regulations, to state "the grounds" on which its decision was made. This was said not be as extensive as a duty to communicate "reasons". There was no duty to comply with what the 2004 Circular said about giving "reasons … in as much detail as possible." The Decision Letter had, in any event, set out in sufficient detail why T's appeal had failed. If there were a defect in the Decision Letter in this regard, relief should be refused in the exercise of the court's discretion.
26. A further point was taken by the Panel in relation to delay. The application for judicial review had been lodged nearly three months after the decision on the challenge. T had now commenced full time education as a termly boarder at a different school. In those circumstances relief should in any event be refused to T.

T's response and additional grounds

27. A statement from T's mother was filed, and in conjunction with this Mr Grodzinski on behalf of T lodged a skeleton argument submitting that shortcomings in the Decision Letter could not now be cured by the statement from the Panel Chairman. It was well established that a decision maker who is required to give reasons cannot ordinarily respond to a challenge by giving different or better reasons. There were no exceptional circumstances to warrant reliance on late reasons in the present case. On the contrary:

i) Notes of the hearing prepared by the clerk to the Panel were inconsistent with the Panel Chairman's statement;

ii) T's mother had seen a member of the Panel, Ms MS, leaving the hearing venue less than 5 minutes after the hearing had ended. This was inconsistent with detailed deliberations of the kind suggested by the Panel Chairman.

iii) The Panel Chairman's statement went beyond mere clarification or elucidation of the Decision Letter, and was inconsistent with that letter.

iv) The reasons set out in the witness statement were not given or even hinted at in the correspondence prior to the issue of proceedings, or in the summary grounds of resistance.

28. Even if the Panel were permitted to rely upon the Panel Chairman's evidence, moreover, it was submitted on behalf of T that good grounds for challenge remained – although in effect what was submitted, at least in part, was that additional grounds for challenge could be identified by reference to what was said in the Panel Chairman's statement. First, the Panel's conclusion that T's behaviour was unrelated to his Asperger's Syndrome was completely at odds with the only medical evidence before the Panel. This came from T's Paediatrician, Dr H. Second, the points made in ground 4 were reinforced by the Panel's Chairman's statement, for he accepted that there was evidence before the Panel on the question of provocation and bullying. The Panel Chairman's statement was inconsistent with the original reasons given, or at the very least strongly suggested a process of rationalisation after the event. Third, there were errors in reasoning in the Panel Chairman's statement, both as to whether T's behaviour was related to his disability, and in relation to an assertion that T's mother had not disputed any of the evidence presented to the Panel.
29. Mr Grodzinski's skeleton argument also dealt with the question of delay. The time taken in order to issue proceedings had been explained: T's mother had been ill and there had been difficulties with funding. T wished to be able to return to X College for the sixth form, and in any event was concerned that his educational records included his having been the subject of permanent exclusion.

The Panel's further evidence and skeleton argument

30. In answer to the statement by T's mother the Panel filed a statement of Ms MS denying that she had left 5 minutes after the conclusion of the hearing. Ms MS maintained that the Panel Chairman's statement accurately set out the Panel's deliberations and the various issues to which Panel members addressed their minds.
31. A skeleton argument was lodged by Mr Sharland on behalf of the Panel. This asserted that the adequacy of the grounds set out in the Decision Letter was not itself a condition of the legality of the decision. The Panel Chairman's witness statement was no more than clarification or elucidation, and was not inconsistent with the Decision Letter. It was appropriate to allow the witness statement to be relied upon. An assertion that the witness statement did not reflect the reasoning at the time of the decision should not be permitted in the absence of cross-examination. As to the failure to set out matters in earlier correspondence, the claimant's letter before action had not articulated the case subsequently advanced by the claimant. Relief should be refused as a matter of discretion and because of delay. As to clearing T's name, there was no dispute that he had violently assaulted a member of staff and there was evidence that this was a planned, deliberate and pre-meditated attack. Accordingly nothing would be gained by quashing the Panel's decision and remitting the matter back to a new freshly constituted Panel.

Contentions at the hearing

32. At the hearing Mr Grodzinski and Mr Sharman each developed orally the contentions in their clients' respective skeleton arguments. Mr Grodzinski sought permission to adduce a further written statement by T's mother. I declined permission as the statement was produced at a very late stage, the contents could and should have been included in T's mother's earlier statement, and it would be impractical for the Panel to respond to the proposed further statement in the short time available.
33. There was no objection by Mr Sharland to the reliance placed in Mr Grodzinski's skeleton argument on new grounds which emerged from consideration of the Panel Chairman's statement. For the most part the argument focused on the duty to give "grounds" or "reasons" and the circumstances in which later evidence can be relied on to supplement what was said in the Decision Letter. Mr Grodzinski advanced 6 propositions about the duty to give reasons. For convenience I have numbered them A1 to A6:

A1. The extent of the obligation upon a Tribunal to give reasons will depend upon all the circumstances, including the statutory context, the nature of the Tribunal and the nature of the issues which it is being asked to decide.

A2. There is no material distinction between legislation which requires the "grounds" of a decision to be stated and one which requires "reasons" to be stated.

A3. Whether or not there is such a distinction, a statutory obligation to state the grounds or give reasons may be enhanced by guidance issued under the relevant legislation, unless that guidance is clearly inconsistent with the statute.

A4. Where there are substantial points of dispute relevant to the outcome of the case, the grounds or reasons for the decision are (regardless of any guidance providing an enhanced requirement to give reasons) required to explain how the Tribunal has resolved those points of dispute. This is so whether the dispute:

A4.1 is a substantial factual dispute; and/or

A4.2 concerns whether relevant statutory criteria have been met on the facts as found.

A5. It is often difficult to explain why one witness has been preferred to another; and a Tribunal's decision will not generally be inadequate just because it has not given such an explanation. However the reasons must make clear that the Tribunal has taken into account the relevant evidence given by the material witnesses in question.

A6. If the Tribunal disagrees with the expert evidence before it, it should say so specifically and explain why.

34. In addition he identified 3 propositions about the supplementing of Decision Letters. For convenience I have numbered them B1 to B3

B1. Where statute requires a decision to be communicated with reasons, so that the adequacy of the reasons is itself a condition of the legality of the decision, it is only in exceptional circumstances that later evidence will be allowed to remedy the defects in the original reasons, unless that evidence merely elucidates the original decision: i.e. unless it merely clarifies some confusion or ambiguity in the original decision.

B2. As set out above, there is no distinction in this context between "grounds" and "reasons". But even if there is such a distinction, where (as in this case) the relevant statutory obligation has been supplemented by guidance to which the Tribunal is required to have regard, and that guidance expressly requires reasons to be given "in as much detail as possible", then the position is as set out in paragraph B1 above.

B3. In any event (i.e. regardless of whether statute and/or guidance requires the giving of reasons), there is a sliding scale between mere elucidation, through to material addition, through to contradiction. The further along the scale, the slower the Court should be to allow the evidence to remedy the defects in the original decision.

35. Mr Sharland advanced 9 main propositions about the duty to give reasons. For convenience I have numbered them M1 to M9:

M1. The extent of the obligation upon an Independent Appeal Panel in the exclusions context to state its grounds is identical to that in the admissions context. The statutory scheme that sets up the two IAPs is similar and the statutory wording of the duty is identical. Both panels are comprised of lay individuals acting in a part time capacity. Both panels are assisted by clerks who whilst have received some training are not necessarily legally qualified (see 2002 Regulations, Schedule para 2A and B and R (S and B) v Birmingham City Council [2006] EWHC 2369, [2007] ELR 57, at para 67). Both panels are consider important issues, often resolve disputes of fact particularly in the DDA context.

M2. The nature of the decision maker is relevant when considering the extent of the duty to state grounds (see Hirst LJ in W (a minor) v Education Appeal Committee of Lancashire County Council [1994] ELR 530 at 538, Laws J in R v Northamptonshire County Council ex p. W [1998] ELR 291 at 295, Stanley Burnton J in S and B para 67). R (H) v Ashworth Hospital Authority in the Court of Appeal [2003] 1 WLR 127 does not contradict this.

M3. If Parliament had intended the duty on IAPs, in relation to the detailed needed in the decision, to be same as various Tribunals it would have said so by using the same language ie "reasons". Parliament elected not to require "reasons". In the education context there are a number of examples where Parliament has elected to require reasons, see eg Special Educational Needs and Disability Tribunals: regulation 36 (2) Special Educational Needs Tribunal Regulations 2001 duty to provide a statement of reasons in a summary form; School adjudicators , see R (Wirral MBC) v Chief Schools Adjudicator [2001] ELR 574 at para 12 "...shall publish his decision on the objection and the reasons for it." Outside the education context, Parliament has required tribunals to provide reasons, eg Mental Health Review Tribunals rule 24 (see para 57 of R (Ashworth Mental Hospital) v Mental Health Review Tribunal [2001] EWHC 901) and planning inspectors (see South Buckinghamshire DC v Porter [2003] 2 AC 58)

M4. The duty to state grounds requires less than the duty to give reasons, see Macpherson J in R v Lancashire County Council ex p M [1995] ELR 136 at 139) (cf Laws J). Grounds are broader and require less specificity.

M5. In light of the nature of the panel, it is not the duty of the panel to recite all the arguments pro and con and to explain why upon each point it has preferred this view or that. The panel must however explain, however, briefly, why the child has been excluded from school, see Laws J in ex parte W p 295

M6. The decision letter must be construed is a sensible manner. The fact that the parties are aware of the issues and the details of the case must be borne in mind; South Bucks and Ashworth CA at 75

M7. Little assistance as to the scope of the duty of the IAP to state its grounds can be gained from case law relating to different bodies where the statutory duty is expressed in different terms and the nature of the body is different, see Hirst LJ in W at 538 and Laws J in ex parte W at 294.

M8. The IAP is obliged merely to "have regard" to relevant guidance. The IAP is not obliged to explain why it did not follow such guidance, see S and B at para 62-64. As such it is different to Rixon guidance [R. v Islington LBC Ex p. Rixon [1997] ELR 66] and sentencing guidelines.

M9. It is not in dispute that the statutory guidance purports to place a more extensive duty on the IAP to state its grounds/give its reasons. The extent of the statutory duty to state grounds as provided by Parliament in 2002 cannot be amended by the Secretary of State. Insofar as the guidance is inconsistent with the statutory scheme and the common law, the law and not the guidance must be followed. If the Secretary of State wishes to overturn case law he may do so amending the regulations.

36. In addition Mr Sharland identified 4 propositions about the supplementing of Decision Letters. For convenience I have numbered them S1 to S4:

51. There are some classes of case where the adequacy of the reasons is itself made a condition of the legality of the decision, see W and Nash. However in such cases, elucidation of earlier reasons is permissible, see Ashworth. IAP decisions exclusions cases are not cases where the adequacy of the reasons is a condition of the legality of the decision, see Laws J in ex parte W at p 300

52. The context and nature of the decision maker is highly relevant, see R (Nash) v Chelsea College of Art & Design [2001] EWHC Admin 538 at para 36 (this is consistent with case law cited above at 2) .

53. In light of the fact that the present case is not one where the adequacy of reasons is a condition of the legality of the decision and the decision maker is a part time lay tribunal, the tribunal will be give a degree of latitude in relation to supplementing its reasons., see ex parte W and H

54. Whilst there is a sliding scale between clarification, addition and contradiction, in the IAP field, the supplementary reasons can remedy any defect in the earlier decision other than when there is a clear contradiction.

Analysis

A necessary modification to the Panel's propositions

37. Proposition S4 calls for immediate comment. It rightly accepts that supplementary reasons cannot be relied on where they clearly contradict the Decision Letter. I cannot, however, accept the suggestion that "in any other circumstances" they can remedy defects in the Decision Letter, if this is intended to mean that there is no restriction on the ability to do so. At the very least, as it seems to me, the Panel must overcome the hurdle explained by Laws J in R v Northamptonshire County Council ex p W [1998] ELR 291. Mr Sharland did not seek in oral argument to controvert the way in which Laws J put the matter. At p. 300 Laws J said this:

"It seems to me with respect that the passage from Hutchison L.J.'s judgment which I have cited, and also Latham J.'s reasoning, give a resounding and salutary warning against a particular danger that may arise where originally faulty reasons are sought to be cured by later evidence. It consists in the risk that the later material, albeit put forward in perfect good faith, in truth officers an ex post facto justification for the decision which in substance travels beyond, and may differ from, the actual reasons entertained by the decision-maker at the time. It is, I think, important to notice that the learned Lord Justice was dealing with a case (as "the real reasons were wholly different from the stated reasons". I would emphasize also his deprecation (in para.3) of the "wholesale amendment or reversal of the ... reasons". I accept, however, that even where the court is confident that the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it will do so will be a matter for the court's discretion case by case. Broadly speaking, the court will have in mind the great importance to be attached to the giving of legally sufficient reasons at the time they are supposed to be given. As Hutchison L.J. said (para.3) "... The purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any grounds for challenging an adverse decision." At the same time, in a case where the court is entirely satisfied, despite an original defect in the reasons given, that the public body in question has arrived at a perfectly proper decision amply justified (so far as any public law tests are concerned) by reasons by which it was entitled to entertain and which it did entertain at the time, it may be slow to strike down the decision on the basis only that the later explanation should have been given when the decision was communicated. I recognise that Hutchison L.J. (in the opening sentences in para.2) draws a distinction between elucidation on the one hand and correction or addition on the other. But I think with respect it is clear that he was concerned with the class of case where the later material exhibits a significant or indeed fundamental shift of ground from the reasons given at the time."

38. I shall refer to Mr Sharland's propositions M1 to M9 and S1 toS4, as modified by the qualification above, as "the Panel's Modified Propositions." I propose to accept, for the purposes of argument, the Panel's Modified Propositions. I emphasise that I do this for the purposes of argument only. My reasons are twofold. First, as will be seen below, I conclude that this claim succeeds even if the Panel's Modified Propositions are taken to be correct. Second, this case has been expedited by the court. The rival propositions as to the adequacy of reasons and the circumstances in which they can be supplemented were not put in their present formulations until the delivery of oral submissions. I was then taken to more than a dozen cases concerned with reliance on late reasons. Some involved statements of principle. Others merely concerned the application of relevant principles to the facts of the case. The last minute nature of this exercise and other aspects of the case – including late written evidence – meant that a hearing estimated to last one day was completed only by taking matters at a considerable speed and by giving this case further priority over others so as to utilise a second day for the completion of oral argument. It is important that this judgment be given with the minimum of delay. For all these reasons, I do not regard the present case as a proper occasion for me to produce a new attempt at expounding the relevant principles.
39. It is convenient to begin by examining ground 4. I shall then turn to examine the remaining grounds of challenge.

Analysis: Ground 4

40. The starting point for ground 4 is the fact that the Decision Letter stated expressly: "the Panel concluded… that…there was no evidence to support claims of discrimination, provocation or bullying…". Mr Sharland accepted that in relation to provocation similar words were used in the Principal's report – a document which, although relied on by the College before the Panel, had been prepared at a stage when the only "evidence" was in the statements which had been assembled by the College.
41. It is conceded by Mr Sharland that at the hearing before the Panel there was in fact evidence to support such claims. What is said in the detailed grounds is that T's mother "did not adduce any sufficiently persuasive evidence". Thus the question on ground four is: can the Panel, having said in the Decision Letter that there was "no evidence", be entitled now to assert that in fact its conclusion was that there was some evidence but not enough to enable it to reach the conclusion in question?
42. I consider that this question must be answered in favour of the claimant. The position taken in the Decision Letter is perfectly clear. The conclusion was that there was no evidence to support T's claim in the relevant respects. There is a world of difference between a case involving that conclusion and a case where the conclusion is that, while there was some evidence supporting the claims in question, that evidence has been assessed on its own merits and against evidence the other way and found to be insufficient. The reasoning in the one case is clearly inconsistent with the reasoning in the other. It is common ground that later evidence may not be relied upon to support a clearly inconsistent assertion. In those circumstances the claimant must succeed on ground 4. I add, although it is unnecessary to do so, that it is conceivable that when dealing with provocation and associated matters the Panel simply adopted the wording used in the Principal's report without keeping in mind the subsequent evidence lodged by T's mother.

Analysis: Ground 1

43. There was common ground as to the process which the DDA required the Panel to adopt. The first question was whether the Panel accepted that T was disabled within the meaning of the DDA. If so the second question was whether the College had treated T less favourably than it treats or would treat others, the appropriate comparison being with a child who was not disabled and who had behaved properly (rather than a child who was not disabled but who had behaved as T had done). Under s.28B of the DDA, the third question the Panel was required to consider was whether the exclusion arose "for a reason which relates" to T's disability. If so, in order to avoid discriminating against T, it would be necessary for the College to show that permanent exclusion was justified, a task which gave rise to further questions. Two pre-requisites to justification are set out in s.28B (7): the Panel must ask whether the reason for the less favourable treatment was both (fourth question) material to the circumstances of the particular case and (fifth question) substantial. There is a further bar on justification in s.28B(8) this refers to the duty under s.28C to take reasonable steps to ensure, so far as the present case is concerned, in relation to education and associated services, that disabled pupils are not placed at a substantial disadvantaged in comparison with pupils who are not disabled. By s.28B(8) the Panel must ask (sixth question) whether the College failed without justification to comply with that duty. If the answer were that the College had so failed, then in order to justify the College's treatment of T, under subsection (7) a seventh question, whether the treatment would have been justified even if the College had complied with its duty, had to be answered affirmatively.
44. Nowhere in the Decision Letter does the Panel expressly ask or answer any of these specific questions. The Decision Letter stated that "the incident as described by the College and witnesses had taken place." That involved a finding as to the facts of what occurred. It did not explicitly or implicitly address questions under the DDA, none of which had been expressly asked or answered in the material submitted by the College.
45. It was contended in T's skeleton argument that the fifth bullet point [paragraph 10.5] in the Decision Letter, with its reference to "notwithstanding T's condition", implicitly recorded a finding that the exclusion had arisen for a reason relating to his disability. This was denied, in my view rightly, by the Panel. The result is that the Decision Letter simply did not address the questions required by the DDA, whether expressly or implicitly.
46. Moreover, the Panel Chairman's witness statement makes it plain that the Panel did not find that the exclusion arose for a reason which related to T's disability. On this basis, even if "grounds" connotes something less specific than "reasons", the basic ground of the decision was simply not set out in the Decision Letter. The identification and explanation of that ground is not "elucidation" or "clarification". It is the introduction of a ground which was completely absent from the Decision Letter. That ground is so fundamental to the case that it can not properly fall within the limited class of cases where evidence as to the decision maker's reasoning process can be given additional to what is set out in the Decision Letter.
47. I recognise that the decision-maker is a part time lay tribunal. There is some support is the authorities for the proposition that such a tribunal will be given a degree of latitude in relation to supplementing its reasons. It does not seem to me that such a degree of latitude can extend to the identification, for the first time some four months after the Decision Letter was written and subsequent to the grant of permission to apply for judicial review, of the fundamental ground upon which the decision was based.
48. My approach in this regard is to ask whether the account of the grounds found in the Decision Letter gives rise to a substantial doubt as to whether the Panel erred in law, working on the basis that an adverse inference is not readily to be drawn. The Decision Letter is to be read in a straightforward manner, recognising that it is addressed to parties well aware of the issues involved in the arguments advanced. In the present case, however, the failure of the Decision Letter to grapple, even by inference, with the question which arises under the DDA, is so fundamental a failure that it cannot be appropriate to permit the Decision Letter to be supplemented in this regard. Without such supplementation, the Decision Letter plainly fails to address relevant legal questions under the DDA, and the decision must be quashed.
49. If it were necessary, I would have held that there are factors in the present case which point to rationalisation by the Panel Chairman after the event. Through no fault of the Panel, it was nearly 4 months before the Panel Chairman was asked to turn his mind to relevant events. Nevertheless, the Panel Chairman does not appear to have taken the elementary step of consulting the clerk's notes of the hearing. His account refers to a hearing which was completed at about midday. It is clear from the notes and from the evidence of T's mother that his recollection is erroneous. At about midday the parties were asked to withdraw, they then returned and the hearing continued until about 1pm. The Panel Chairman's recollection that the Panel deliberated between midday and 1p.m. must be wrong. The Panel Chairman recites that the hearing was attended by "Mr [CF]". This repeats an error found in the Decision Letter, first as to the gender of CF and second as to her presence – she did not in fact attend the hearing. Third, the Panel Chairman's statement asserts that the Panel during the hearing had copies of both the DRC's Code of Practice and the 2004 Guidance, and examined them carefully prior to reaching the decision. He does not explain why the Decision Letter made no reference to these documents. The Panel Chairman goes on to comment that the Panel "did briefly consider DFEE Circular 10/99 and the updates that had been issued in so far as they provide guidance on a procedure to be used in all appeals against permanent exclusions." It is difficult to make sense of this assertion. DFEE Circular 10/99 had been completely replaced by the 2004 Circular. The assertion that the Panel considered it and updates that had been issued, but relied on the more specific guidance given in the 2004 Circular, suggests a failure on the part of the Panel Chairman to appreciate that the 2004 Guidance completely replaced what had gone on before.
50. In so far as Ms MS supports what is said by the Panel Chairman, her statement gives rise to similar concerns about rationalisation for the same reasons.
51. It is not in my view necessary that a claimant should seek to cross-examine the author of the witness statement where questions of this kind arise. Nor is the matter resolved by rules as to the burden of proof, which in many cases may mean that the defendant's evidence is to be preferred: see Cran. As noted by Laws J in R v Northamptonshire County Council Exparte W [1998] ELR 291 at 300, the Court is concerned about the risk that the later material, albeit put forward in perfect good faith, may not represent the actual reasons of the decision-maker at the time. The considerations identified above lead me to conclude that there is a substantial risk in that regard in the present case.
52. In approaching the matter in this way I have not needed to deal with a contention on behalf of T that, contrary to the concession recorded in R v Northamptonshire County Council ex parte W [1998] ELR 291 at 299, cases of this kind are cases in which the adequacies of the grounds is itself made a condition of the legality of the decision. That is an argument which may merit consideration on a future occasion. Nor have I needed to examine the contention on behalf of T that there was a failure by the Panel to have regard to guidance indicating that reasons should be given in as much detail as possible, and that for this reason the Court should be reluctant to permit later supplementation of the reasons.
53. Second, an attempt was made to support the decision on the footing that the Panel had considered what the position would be under the DDA if the pre-meditated attack had related to T's disability. It was submitted that the Panel gave consideration to the question whether the College had failed to take reasonable steps to ensure that disabled people were not placed at a substantial disadvantaged in comparison to pupils who were not disabled. It was asserted that the Panel's conclusion in this regard meant that if it had been following the process of reasoning required by the DDA, it would have concluded that the College had overcome the hurdle imposed by s.28B(8). However, it is clear both from the careful wording of paragraph 9 of the Panel Chairman's witness statement and from the express concession in paragraph 28 of Mr Sharland's skeleton argument that the original reasoning process of the Panel did not involve the reaching of any conclusion as to whether the College's treatment of T was justified in the context of his having a disability which was related to the reasons for permanent exclusion. The Panel Chairman has expressed his own view that the Panel would have concluded that there was justification. However this is a view expressed after the event, and the position is by no means so clear as to entitle the Court to conclude that such an outcome was inevitable. It would, for example, have required further consideration of Dr. H's evidence.

Analysis: Grounds Two and Three

54. Each of these grounds relies on failure on the part of the Panel to have regard to guidance. In the case of ground two, the guidance is that of the Disability Rights Commission. In the case of ground three, the guidance is found in the DfES Circular. I can deal with these grounds briefly. The material which the claimant says has not been taken into account concerns the proper approach to be taken by bodies when considering exclusion of a pupil who suffers from a disability. For the reasons given in relation to ground one, the Panel's approach to the question of T's disability was not an approach which can be upheld in law. In these circumstances there is no need to investigate grounds 2 and 3.

Analysis: Ground 5

55. For the reasons given on grounds 1 and 4 I conclude that the Decision Letter was not adequately reasoned.

Analysis: the Additional Grounds of Challenge

56. Even if I had permitted reliance upon the Panel Chairman's statement, I would have concluded that first of the claimant's additional grounds succeeded. The only medical evidence before the Panel was from Dr. H. She plainly regarded the incident as related to T's Aspergers Syndrome. The College, apparently in reliance on passages in letters from Dr. H. at the time T started his secondary education, asserted that a pre-meditated attack could not be related to T's Aspergers Syndrome. No consideration appears to have been given to the fact that Dr. H. plainly disagreed with the College's opinion as to whether a pre-meditated assault could relate to T's Asperger's Syndrome. Mr Sharland drew attention to evidence that problems in Year 10 of T seeking confrontation were thought to be part of growing up. He added that the reference to "severe Asperger's Syndrome" in the letter of 12.6.06 was inconsistent with earlier letters, while her oral evidence to the Disciplinary Committee could be read consistently with the College's approach. However it is not clear to me that the Panel concluded that these matters must mean that Dr H's views as set out in her letters of 10.5.06 and 12.6.06 were wrong, and I am certainly in no position to reach any such conclusion. At one stage there was a contention by Mr Sharland that a decision-making body rejecting the opinion of an expert need not give reasons where the expert was not objective. I know of no such principle, but even if there were such a principle I do not find that Dr H lacked objectivity.

Discretionary Refusal of relief

57. The Panel contended that the Court should not grant relief to T as a matter of discretion. The first point taken by the Panel was delay. It is true that the claim form was issued only towards the end of the three month period which is the maximum permitted under the rules. It could not be described as "prompt", and educational matters of this kind plainly require to be dealt with promptly. When the claim form was lodged it was accompanied by a request for urgency, and in particular that time be abridged for the lodging of the acknowledgment of service. This request was declined by Sullivan J, who commented adversely on the delay in issuing the proceedings. However, I am satisfied that the delay is fully explained by the evidence in relation to the illness of T's mother, and the difficulties she faced when seeking funding. Second, it is observed by the Panel that T has now found satisfactory schooling elsewhere. That may be so, and there may be reason to doubt whether T would wish to return to the College for the sixth form. Nevertheless, a determination that he was rightly the subject of a decision that he be excluded permanently is a very serious matter. Mr Sharland submitted that the fact that T had assaulted on Mr GS would itself be a blot on T's record. In my view this fact points in favour of relief: without a fresh hearing before the Panel T will be unable to erase the blot in question. Taken as a whole, I consider that the decision by the Panel may, unless this court grants relief, be seen as reflecting adversely on his character, and may impair his ability to access educational and other opportunities in the future. I do not consider that it should be regarded as so insignificant as not to warrant the granting of relief.

Conclusion

58. For the reasons I have given, this claim succeeds. The decision of the Panel will be quashed, and the matter remitted for a fresh determination.