England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2A 2LL
		3 March 2008

The Deputy Judge:

Introduction

1. This is a renewed application for permission to challenge the decision of the Independent Appeal Panel of the London Borough of Barking and Dagenham ("the Panel") made on 2 February 2007, upholding the decision made on 17 November 2006 by the Governing Body of X School ("the School") to reinstate a pupil following her permanent exclusion by the Headteacher of the School on 9 November 2006.
2. This application was heard immediately following the appeal in The Governing Body of X School v SP and the Special Educational Needs and Disability Tribunal (CO/642/2007). The order I made in that case under s.39 of the Children and Young Persons Act 1933 to preserve the anonymity of the names of the First Respondent and her daughter, who may be referred to as SP and N respectively, I made also in respect of the present application.
3. At the outset of the hearing I indicated that I would hear full argument from the parties and thereafter give my decision on both the renewed application for permission and the substantive application, if I granted permission.

Background

4. On 9 November 2006 N, a 13 year old pupil, was permanently excluded from the School. The School is a maintained comprehensive secondary school in the London Borough of Barking and Dagenham. N has a Statement of Special Educational Needs issued on 5 July 2006 by the London Borough of Havering. She has a diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD") made in August 2000.
5. In 2005 and 2006 N had been the subject of a number of fixed term exclusions. On 4 May 2006 her mother issued proceedings against the School under the Disability Discrimination Act 1995 ("the 1995 Act") in respect of these fixed term exclusions. On 28 December 2006 the Special Educational Needs and Disability Tribunal ("the Tribunal") decided that the School had unlawfully discriminated against N by their exclusions on 11 November 2005, 7 March 2006, 19 April 2006 and 21 June 2006 ("the Tribunal Decision"). The Tribunal Decision was the subject of an appeal in the proceedings referred to in paragraph 2 above.

The Legislative Framework

6. Section 28A- 28C of the 1995 Act, in so far as is material, provides as follows:

"28A Discrimination against disabled pupils and prospective pupils

(2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.

(4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school whether permanently or temporarily.

28B Meaning of "discrimination"

(1) For the purposes of section 28A, a responsible body discriminates against a disabled person if-

(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b) it cannot show that the treatment in question is justified.

(2) For the purposes of section 28A, a responsible body also discriminates against a disabled person if-

(a) it fails, to his detriment, to comply with section 28C; and

(b) it cannot show that its failure to comply is justified.

(5) Subsections (6) to (8) apply in determining whether, for the purposes of this section -

(a) less favourable treatment of a person, or

(b) failure to comply with section 28C, is justified.

(7) .... less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.

(8) If, in a case falling within subsection (1) -

(a) the responsible body is under a duty imposed by section 28C in relation to the disabled person, but

(b) it fails without justification to comply with that duty,

its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even if it had complied with that duty.

28C Disabled pupils not to be substantially disadvantaged

(1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that -

(b) in relation to education and associated services provided for, or offered to, pupils of the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.

(4) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A."

7. Under s.28L of the 1995 Act the Panel is responsible for determining appeals in respect of disability discrimination relating to a permanent exclusion decision.
8. Under s.52 of the Education Act 2002 and the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 as amended the Panel must give reasons for its decision.
9. The relevant guidance at the material time was "Improving Behaviour and Attendance: Guidance on Exclusions from Schools and Pupil Referral Units" (September 2006).

The Decision of the Panel

10. The Panel found that

"as an ADHD sufferer, N is disabled and indeed the School conceded that at the start of their case. However, the Panel did not feel that N had been treated less favourably by the School for reasons related to her disability, nor did they feel the School had failed to make reasonable adjustments for N. The Panel felt the School had done everything they could to cater for N's needs".

11. The Panel then went on to consider two specific questions:

"(i) did N do what she is alleged to have done; and

(ii) if so, was permanent exclusion the appropriate response to that behaviour?"

12. The School based its decision to exclude N on a series of alleged incidents that took place between September and November 2006. The Panel noted that

"[These] included numerous incidents of: refusal to follow teachers' instructions; refusal to complete work, refusal to adhere to the School's uniform policy by wearing an earring, the use of rude, abusive and/or obscene language to staff; barricading herself in the classroom by placing a chair against the door, damaging school property, disrupting classes, both her own and others; encouraging other students to misbehave; wandering round the School without permission; leaving lessons without permission; and leaving the School site without permission. ... The School also expressed its concern that N was advertising her behaviour to other pupils."

13. As to question (i), the Panel concluded:

"That on the balance of probabilities N acted as the School alleged and the School had put in a number of strategies to help N to cope with her condition and be integrated into a curriculum she chose. The documentary records concerning N's behaviour provided by the School were detailed and Mrs [S] and Mr [G] expanded on those records at the hearing.

Although, N was given every opportunity to change her behaviour she failed to comply with the School's Behaviour Policy Statement and placed the School in a position of health and safety risks for both N's and the school community.

The Panel unanimously agreed that N was responsible for persistent disruptive behaviour leading to a series of violations of school rules, disobedience and defiant behaviour. Although the School did not point to a specific provision of its Behaviour Policy that N had breached, the Panel considered it to be common sense that the sort of disruptive and defiant behaviour exhibited by N was inconsistent with the orderly running of a school.

The Panel could not accept ... that N was not given the support to be integrated into the School as the School provided a programme to integrate her into the upper School, and arranged 15 hours of Learning Support assistance per week and her own key worker. The recorded incidents indicated that N had exhibited challenging behaviour towards a large number of teachers and other staff. Further, in the Panel's view the School had exhibited considerable patience when faced with N's very defiant behaviour.

The Panel therefore unanimously accepted that there had been a series of serious breaches of the School's Behaviour Policy. Given this disruptive behaviour, the Panel accepted the School's case that for N to remain in the School would seriously harm her own education and that of other pupils and constituted a threat to the health and safety and welfare of herself and the other pupils and staff at the School."

14. As to question (ii), the Panel said:

"In considering whether permanent exclusion was the appropriate sanction the Panel had regard to the welfare of N and the other pupils and staff at the School. The Panel had particular regard to the guidance that permanent exclusion should normally be the final step (Guidance, paras. 12-13). Given that N had a Statement, the Panel also had particular regard to the guidance that every effort must normally be made not to exclude pupils with that level of Special Educational Needs (SEN) (Guidance, paras. 45-46).

On the basis of the oral and written evidence and submissions, the Panel accepted that the School had tried to maintain N at the School and agreed that a range of strategies had been tried without success. These included:

•      Spending a considerable time in the Learning Support Centre (LSC);

•      Being given a personal tutor for 2 hours each morning in July 2006, albeit it met with limited success;

•      Being supported by a Key Worker for a minimum of 15 hours per week;

•      A system of traffic light cards that allowed N the opportunity to leave the room and calm down;

•      A Temporary Placement at the Barking and Dagenham Tuition Centre;

•      The Panel were provided with a number of Pastoral Support Programmes and Statements of Special Needs for N."

The School adopted a number of other strategies but these appear to have had no impact on N and she continued to engage in defiant and disruptive behaviour.

The Panel concluded, taking into account N's interests and the interests of the rest of the School community that, notwithstanding the Panel's knowledge that N has a Statement of Special Needs, given the persistence and seriousness of N's behaviour this was an exceptional case where permanent exclusion was the appropriate sanction".

The grounds of challenge

15. The Claim Form sets out various grounds of review. However in his oral submissions Mr Giffin QC, on behalf of SP, limited himself essentially to one argument which was based on the decision of the Panel to disregard the Tribunal Decision.

Submissions

16. The Panel held that it

"did not feel that N had been treated less favourably by the School for reasons related to her disability, nor did [it] feel the School had failed to make reasonable adjustments for N." (see para. 10 above).

It followed, Mr Giffin submitted, the Panel appears to have found first, that N's ADHD did not contribute to the misbehaviour for which she was, on this final occasion, excluded; and secondly, that there was no failure to make reasonable adjustments. In so doing the Panel had reached a conclusion that on both counts was diametrically opposed to that of the Tribunal reached some 5 weeks earlier.

17. Mr Giffin rightly did not pursue the argument advanced in the Claim Form that these matters were res judicata. Plainly they were not. The Tribunal was dealing with various fixed term exclusions which took place between November 2005 and June 2006; the Panel was dealing with permanent exclusion in November 2006 based on incidents that took place between September and November 2006.
18. However, the Panel decided not to admit the Tribunal Decision in evidence. This is clear from the notes of the two hearings before the Panel. On 8 January 2007

"The Chair acknowledged and the Panel agreed that the Special Educational Needs and Disability Tribunal (SENDIST) [decision] letter ... would not be part of the hearing, as the Appeal Panel could not consider or overturn any decision that the Tribunal had made. Their findings were relevant to previous fixed term exclusions and not the permanent exclusion."

On 16 January 2007, according to the notes,

"The Panel received a copy of a letter from Meredith Fisher (Solicitors [for SP]) faxed on the morning of the hearing, the Governing Body and LEA were faxed copies. The Panel noted the contents and went on to confirm their view from the first meeting that they would not consider the fixed term exclusions, for which a judgment had already been made by SENDIST".

Mr Giffin submits that the Panel erred in failing to have regard to the Tribunal's Decision. It amounted, he argued, to the disregarding of a relevant consideration.

19. Mr Giffin submits that a previous decision of a judicial or quasi-judicial body that bears closely on the subject-matter of a decision that a public law decision-maker has to make must be taken into account. In support of this submission Mr Giffin referred to R (Von Brandenburg) v. East London and The City Mental Health NHS Trust [2004] 2 AC 280 where Lord Bingham said:

"....the rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided." (para 8)

Lord Bingham approved (at para 5) what Sedley LJ had said in the judgement of the Court of Appeal (save in one immaterial respect):

"41. A recent - and often a not so recent - order of a tribunal for discharge will always be a relevant fact. If so, it is the duty of the subsequent decisionmaker to take it into account; a failure to do so, albeit through ignorance, will vitiate a subsequent decision to seek admission. The principle that the weight to be given to such matters is a matter for the decision-maker, moreover, does not mean that the latter is free to dismiss or marginalise things to which the structure and policy of the Act attach obvious importance. Thus a recent mental health review tribunal decision to discharge a patient, if the circumstances have not appreciably changed, must be accorded very great weight if the second decision is not to be perceived as an illicit overruling of the first. Put another way, there will have to be a convincing reason in such a case, for readmission. This is particularly so if the United Kingdom's Convention obligations are to be respected. But neither the Act nor the Convention inhibits the detention by a proper decision-making process of those who, although recently discharged, have deteriorated or whose mental well-being otherwise requires admission.

42. In this sense (reverting to the formulation of Laws J in Ex p M [1993] QB 683) it can be said that, while not legally bound in the absence of a change of circumstances by a recent mental health review tribunal decision in favour of discharge, those concerned in a section 3 application cannot lawfully ignore it. They must have due regard to such a decision for what it is: the ruling of a body with duties and powers analogous to those of a court, taken at an ascertainable date on ascertainable evidence. The second decision must be approached with an open mind, but it is not necessarily going to be written on a clean slate."

20. In my view these observations do not assist Mr Giffin. In Von Brandenburg the claimant was compulsorily admitted to the Trust's hospital under section 4 of the Mental Health Act 1983 on the emergency application of the approved social worker and the recommendation of a doctor. Later the same day, with the recommendation of a second doctor, his admission was converted to an admission for assessment for up to 28 days under section 2 of the Act. A mental health review tribunal, contrary to the opinion of the medical professionals responsible for the claimant, ordered the claimant's discharge under section 72 of the Act on the grounds that he was not suffering from mental illness of a degree which justified detention and that his detention was not required in the interests of his own health or safety or for the protection of others. Prior to his discharge the claimant was further detained under section 3 of the Act on the application of the social worker, supported by the recommendation of two doctors. The claimant sought judicial review of the Trust decision to admit him and of the social worker's decision to make the application under section 3 in the absence of any change of circumstances since the tribunal's order. The House of Lords held that given the episodic nature of many conditions of mental illness, and since, on the plain language of section 72 the focus of the tribunal's review was to consider whether the patient was not "then suffering" from mental illness, the tribunal was not required to make an assessment which would remain accurate indefinitely. Accordingly, a social worker, who was aware of the tribunal's decision to discharge a patient, might not lawfully apply for admission under section 2 or 3 of the Act unless he reasonably and in good faith considered that he had information unknown to the tribunal, but which put a significantly different complexion on the case as compared with that before the tribunal. A social worker could not apply for a patient's admission on the sole ground of disagreement with the tribunal's decision to order discharge.
21. Lord Bingham, having analysed the relevant principles, concluded that:

"an ASW [approved social worker] may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case (emphasis added) as compared with that which was before the tribunal" (para 10).

In my view the present case is to be distinguished from Von Brandenburg. The Panel was not concerned with whether the decision of the Tribunal was right or wrong. The "case" before the Tribunal and the Panel was different. The Panel was dealing with different incidents over a different period of time which rightly it determined on the evidence before it.

22. Re SW [2005] EWHC 162 (Fam) was concerned with a point that had arisen in the context of care proceedings as to the respective functions of the Family Court when exercising its jurisdiction under Part IV of the Children Act 1989 and of the Special Educational Needs and Disability Tribunal when hearing an appeal pursuant to section 326 of the Education Act 1996. At para. 18 Munby J said:

"The family court cannot dictate to SENDIST how it is to determine an appeal under section 326 of the Education Act 1996. Nor, of course, can SENDIST voluntarily surrender to the family court its statutory obligation to determine such an appeal. But in practical terms SENDIST will have to take into account any order made or views expressed by the family court."

However, "the ultimate questions", as to where and how the child should be educated, for both the family court and SENDIST were "so similar" (paras. 17 and 19).

23. Finally Mr Giffin referred me to the judgment of Carnwath LJ in AA (Somalia) v. Home Secretary [2007] EWCA Civ 1040 where consideration was given to the principle of consistency in administrative law generally. However the two cases were listed together because of an issue common to both. The issue arises in cases where there is overlapping evidence of fact in two separate cases. The specific issue before the court was: "In X's asylum/human rights appeal what weight, if any, should be given to a finding of fact made in Y's favour which assists X and which was made by a tribunal when allowing an asylum/human rights appeal in respect of Y?". The statements of principle in AA (Somalia) have no relevance to the present case where the incidents in issue, and hence the material evidence before the Tribunal and the Panel, were different.
24. In the grounds for renewal of the application for permission to apply for judicial review it was said that "it was incumbent on the [Panel], as a minimum, to consider the [Tribunal] decision and to explore what, if anything, had changed in relation to the defects identified by [the Tribunal] between June and November 2006" (para.l). In

my view that would have been the wrong approach. The Panel had to consider the evidence that was presented to it in November 2006. As Mr Goudie QC, for the Defendant, submits, that evidence related to different incidents; different periods of misbehaviour; different school years; the evidence was given by different witnesses; and the fixed term exclusions occurred before the Statement of Special Educational Needs took effect. Further, the Panel may not have known of the evidence that led to the Tribunal Decision save in so far as that evidence is referred to in the Decision itself. By contrast it is clear that the Panel was presented with detailed evidence of N's misbehaviour during the period from September to November 2006 and of the strategies that the School had in place to promote positive behaviour on N's part during that material period.

25. In my view the decision of the Panel is a properly reasoned decision based on the evidence adduced before it. The sole ground of challenge is that the Panel should have had regard to the Tribunal Decision; otherwise it is not alleged that the Panel erred in law. In my judgment there was no obligation on the Panel to take the Tribunal Decision into consideration.
26. Mr Goudie submitted that the claim should be dismissed for delay. The decision challenged was taken on 2 February 2007. Proceedings were instituted almost 3 months later on 25 April 2007. In my view the claim should not be rejected on this basis. A pre-action letter was written promptly after the decision of the Panel on 12 February 2007. There was no reply to that letter. Proceedings were commenced within the 3 month period. No prejudice has been caused by any delay. It is clear from the notes of evidence before the Panel and the decision of the Panel that SP said N would not be returning to the School.
27. I also do not accept the suggestion that the claim should be rejected on the ground that it serves no practical purpose because N does not intend to return to the School. In my view she has a recognised interest if the claim succeeds, in being able to remove the stigma of an improper exclusion from her record.

Conclusion

28. I have heard full argument from the parties. In my judgment the threshold for the grant of permission is crossed. Accordingly I grant permission to apply for judicial review. However for the reasons which I have explained, this claim must be dismissed.