QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
|THE QUEEN ON THE APPLICATION OF P||Claimant|
|HARINGEY LONDON BOROUGH COUNCIL||Defendant|
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Mr O Hyams (instructed by Haringey LBC) appeared on behalf of the Defendant
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"After careful consideration of all the available evidence, the Committee determined that the headteacher did act appropriately in permanent excluding [P] from the school and they therefore uphold the headteacher's decision.
The Committee upheld the permanent exclusion for the following reasons:
i. That [P] carried out a vicious attack on a vulnerable student and kicked and punched that student when he was lying on the ground was clearly supported by the evidence.
ii. The incident had been properly investigated.
iii. This is a very serious offence and in clear breach of the school's stated policy.
iv. The school has put a lot of effort into finding and offering the appropriate level of support and help for [P] and has properly reviewed his SEN statement.
v. The Governors' overriding responsibility is to ensure the welfare and safety of all pupils and staff, and Government guidelines state that an incident such as this constitutes exceptional grounds for permanent exclusion.
You have the right to appeal against this decision. If you wish to do so, please notify: [and it then, I interpose, gave an address for the head of Council team Members Services, the London Borough of Haringey.]
You must set out the reasons for your appeal in writing by no later Wednesday 4 October 2006. If you have not lodged an appeal by Wednesday 4 October 2006 your right to appeal will lapse".
The letter then went on to explain, in summary form, how the Independent Appeal Panel would be constituted and how matters would proceed. It also indicated what might be done for arrangements for P's current continuation of his education.
1. Give the reasons for your appeal in writing.
2. Do this within 15 school days after you receive notification of the decision made by the School Discipline Committee. No appeal can be accepted after this deadline.
The last date on which you can lodge notice of the appeal is 4 October 2006. If you have not lodged an appeal by 4 October 2006, your right to appeal will lapse."
It then went on to deal with certain other arrangements and contacts in case further information or support was needed.
I have just been informed by [P's mother], that the grounds of appeal have not been received by you, as required in your letter to [P's mother] dated 20 September 2006.
I attach a copy of the letter I sent to you with a CEN Compliment Slip, on 28th September 2006, the day after my meeting at the office with [P's mother] and the day after she left a message with Miss Lynn Teigh to say that the appeal was on its way - the message was noted by [P's mother] as left as 14.16 hours on 27th September.
I am perplexed by its non-receipt by your office.
I trust that in all the circumstances the grounds of appeal can be reinstated."
"5. On 27th September the Claimant's mother telephoned the Council's Admission Service and spoke to Miss Lynn Teigh and left a message to the effect that she would be appealing in writing against the exclusion. The telephone call with Miss Lynn Teigh was not treated as a valid appeal as it was not made in accordance with the letter from Janet Gibson, dated 12 September 2006, nor my letter dated 20 September 2006. A telephone call indicating an intention to appeal is not treated as a valid appeal by the local authority.
6. I did not hear anything further on this matter until I opened an e-mail on Monday, 9 October 2006, which was sent by Mr Gerry German, the Claimant's representative, on Friday, 6 October 2006 at 21.08. A copy of the e-mail and attachment is contained at bundle 205... Despite being informed in the above two letters that an appeal should be made in writing to Member Services, Mr German e-mailed myself with a document he stated was sent on 28 September 2006. Mr German stated that this document, the grounds of appeal, were sent to myself. This document was never received by me in the post and I understand has never been received by Member Services either. The first time I had sight of it was in the attachment to the e-mail dated 6 October which I opened on 9 October 2006.
7. I contacted Member Services to clarify whether the appeal had been received. I was informed by Member Services on 9 October 2006 at 09.17 am that the appeal not been received in the post."
"As the hearing commenced at 5pm on the 11 September, Ms Gibson advises that she took the view that the letter had to be posted within 24 hours of the decision, that is, 7 pm on 12 September 2006. Ms Gibson advises that the letter could therefore have been posted on 13 September 2006 as she would have missed the post on 12 September 2006. In any event, the letter was definitely posted on or before 13 September 2006. Miss Gibson notes that your client received the previous letters posted to her."
On 12 December the Council wrote:
"1. The Clerk to the Governors' Disciplinary Meeting, Janet Gibson, is very experienced and has been clerking exclusion appeals for a number of years. Ms Gibson has clerked numerous exclusion appeals for Alexandra Park School, and is well aware of the requirements, as stated in my letter dated 05 December 2006, to inform the parents of the Governors' decision within one school day of the Hearing. Ms Gibson always posts decision letters by first class post and, therefore, does not retain proof of posting. The letter dated 12 December 2006 was posted by first class post [that should have read 12 September 2006] Should you issue Judicial Review proceedings, then Ms Gibson will be providing a witness statement stating the above, and also referring to the issues raised in my letter of 05 December 2006.
2. I take your point that, in the event of the letter 12 December [again it means September 2006] was actually posted on 13 September the 15 school days would have been exhausted on 06 October 2006. However, your client's appeal was still not received in time.
3. Ms Gibson also makes the point that your client received all the other letters from her and also that your client was informed of the Hearing that a decision letter would be sent 24 hours of the decision being taken."
The letter then deals with regulation 5(6) of the relevant regulations which I will come to in a moment. It is contended that the fact that it had become clear that the date given in the notices of 4 October was incorrect did not render the notices defective or the process unlawful.
"7. The appeal written by Mr German was e-mailed to Marie Baker on Friday, 06 October 2006, at 21.08 pm. In that e-mail, Mr German states that he also sent the appeal to Marie Baker on 28 September 2006. This has never been received. Marie Baker is the Pupil Placement Officer. At no time was the Appeal sent to Members Services as required. I again refer you to my letter dated 28 November 2006, page 4, fourth bullet point. Mr German is well known to Members' Services and is well aware of the correct procedure and address for lodging appeals.
The Local Authority therefore takes the view as follows:-
• The Governing Body's decision letter dated 12 September 2006 was sent by first class post on or before 13 September 2006. Janet Gibson will be providing a witness statement to this effect if necessary.
• It is not accepted that there was a problem with Royal Mail.
• The first time any appeal was received by the Local Authority was Mr German's e-mail on Friday, 06 October 2006 at 21.08 pm.
• This appeal is defective as it was not sent to the required address as notified in the letter 12 September 2006 and in Marie Baker's letter dated 20 September 2006.
Even if the notice of appeal was not defective it was still not received in time."
The letter then refers to regulation 6(2) which I will come to in a moment:
"This appeal is deemed to have been received on Sunday 08 October 2006. I refer you to Part 6, Rule 6.7 of the Civil Procedure Rules - Deemed Service. Service of a documents by electronic means is deemed to have been served on the 2nd day after the day on which it was transmitted. Service of the e-mail from Mr German is therefore deemed to have taken effect on Sunday, 08 October 2006."
That latter point regarding CPR and electronic delivery does not appear in the arguments before me.
"(c) requiring the Local Education Authority to make arrangements for enabling a prescribed person to appeal, in any prescribed case, to a panel constituted in accordance with the regulations against any decision of the responsible body not to reinstate a pupil, and.
(d) as to the procedure on appeals. ...."
"(5) The head teacher shall comply with any direction of the governing body for the reinstatement of a pupil who has been excluded from the school.
(6) If the governing body decide that the pupil should not be reinstated, they shall forthwith -
(a) inform the relevant person, the head teacher and the local education authority of their decision, and (b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matter -
(i) the reasons for the decision.
(ii) his right to appeal against the decision.
(iii) the person to whom he should give any notice of appeal
(iv) that any notice of appeal must contain the grounds of appeal, and
(v) the last date on which an appeal may be made.
(11) The notice in writing referred to in paragraph (6)(b) may be given either—
(a) by delivering it to the relevant person's last known address, or
(b) by properly addressing, pre-paying and sending by first class post to the relevant person's last known address a letter containing the notice."
Regulation 6 provides:
"Appeals against permanent exclusion of pupils
(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under regulation 5 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority.
(2) The Schedule to these Regulations has effect in relation to the making and hearing of appeals pursuant to arrangements made under paragraph (1); and in paragraphs (3) to (6) 'appeal panel' means an paragraph 2 of the Schedule."
The relevant provisions of the Schedule to the Regulations provide:
"1 (1) No appeal under regulation 6(1) against a decision not to reinstate a pupil may be made after the fifteenth school day after the day on which the relevant person is given notice in writing under regulation 5(6)(b). ..."
"6. Procedure on an appeal.
In the following provisions of this Schedule 'appeal' means an appeal under regulation 6(1) and 'the closing date for appeals' means the fifteenth school day after the day on which the appeal is lodged."
"7. An appeal shall be by notice in writing setting out the grounds on which it is made."
"15. (1) Subject to paragraphs 7 and 14, all matters relating to the procedure on appeals shall be determined by the local education authority.
(2) The local education authority shall, in setting any time limits in connection with appeals, have regard to the desirability of securing that appeals are disposed of without delay."
"16. In paragraph 1(2) and 14 "working day" means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday within the meaning of the Banking and Financial Dealings Act 1971."
(1) Were the notices defective?
"I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows.
1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question)
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
3. If it is not capable of being waived or is not waived then what is the consequence of the non- compliance? (The consequences question.)
Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non- compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver."
(2) Was the e-mailed notice of appeal of 6 October sufficient to commence the appeal?
(a) Time for appealing - "fifteen school days"
(b) Giving of notice by e-mail on 6 October
(3) The question of the receipt of the letter of 12 September
"Where a set of facts must exist for the exercise of the jurisdiction of the decision maker (in the strict sense of permitting the decision maker to enter into its enquiry) the courts are entitled to enquire into the existence of those facts. The language of jurisdiction is not necessary to justify such an intervention ... The exercise of the decision maker's power is dependent upon the existence of a fact or set of facts. The court is entitled to ensure those facts exist."
(4) Other issues
"I think it is better that the court that hears the judicial review application... The administrative court should hear all the argument. If it thinks that this is a hopeless argument then not much time should be spent on it, but the decision is better taken there than here."