England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 May 2009

1. MR JUSTICE PLENDER: This is an application for judicial review of a decision of the Independent Appeal Panel ("the Panel") dated 27th June 2008, upholding the claimant's permanent exclusion from Furness Primary School. The hearing, which has lasted two days, attended by counsel and solicitors, has involved examination of such evidence as there is of what was said by one primary school child to another in the playground of the primary school in about October 2006.
2. The claimant is a boy who was, at the time relevant to the present proceedings, aged 10. For some years his behaviour at his primary school has caused his head teacher, Mr King, to describe him as one of his most difficult pupils. He has been subject to numerous disciplinary sanctions. These include sanctions for using aggressive behaviour to a child (four times), stabbing a child with a pencil (twice), fighting in class (twice) and slapping a girl in the face (once). There were also 18 recorded instances of failing to follow a teacher's instructions, six recorded instances of rudeness, 12 recorded instances of continually calling out in lessons, 11 recorded instances of refusing to do work within his capabilities, eight recorded instances of being continually unpleasant in the classroom and various other instances of misbehaviour.
3. He has been described as a pupil with "special educational needs", but as we shall hear this is not to be understood in the technical sense, although he is a child who has required and profited by intervention at School Action Plus.
4. Section 52 of the Education Act 2002 provides that the head teacher of a maintained school has the power to exclude a pupil either temporarily or permanently. Regulations made pursuant to that section require the governing body, that is the governors of the school, to consider whether the pupil's expulsion shall be maintained and requires the Local Education Authority to make arrangements enabling a prescribed person to appeal to a Panel constituted in accordance with the regulations. In the present case the decision to expel the claimant was made by the headmaster, Mr King, and upheld by the governors, and then upheld further by an Independent Appeal Panel against whose decision this application for judicial review was made on, as I have said, 27th June 2008.
5. The pupil then left Furness Primary School and went to live with his aunt in Wales where he continues his education. He is now at secondary school and, I am happy to say, appears to the court to be making good progress.
6. Part of the claimant's case is that the Panel failed to consider the guidance issued pursuant to the statutory provisions for children with special needs. In its guidance on improving behaviour and attendance, dated September 2007, the Department for Children, School and Families states at paragraph 54:

"Other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements. They should also make every effort to avoid excluding pupils who are being supported at School Action or School Action Plus under the Special Educational Needs Code of Practice, including those at School Action Plus who are being assessed for a statement. In most cases, the head teacher will be aware that the school is having difficulty managing a pupil's behaviour well before the situation has escalated. Schools should try every practicable means to maintain a pupil in the school, including seeking Local Authority and other professional advice and support at School Action Plus or, where appropriate, asking the Local Authority to consider carrying out a statutory assessment. For a pupil with a statement the school should liaise with the Local Authority about initiating an interim review of the pupil's statement."

7. This guidance refers to pupils with statements and also those who are supported at School Action or School Action Plus. As counsel for the Panel has explained to me, this covers a wide spectrum of pupils including those who suffer from diagnosed disabilities such as Asperger's syndrome or ADHD which may make it difficult, if not impossible, for them to control their behaviour. It is as well to be understood that the exclusion of a pupil suffering from such a disorder ought to be exceptional. I would also take it to be axiomatic that the permanent exclusion of a child from a school, being the most drastic action that the school can take, is action which will be approved by the headmaster only in the most exceptional cases. However, to say that is also to acknowledge that exceptional cases may exist.
8. Paragraphs 138 to 143 of the guidance deal with the evidence to be heard before Panels, stating that all witness statements must be attributed, signed and dated and the Panel must consider what weight is to be attached to written statements, whether made by pupils or by adults, and the value of written statements is to be contrasted with that of oral evidence. They should bear in mind that a written statement may not encompass all the relevant issues, nor can the author be interrogated.
9. In the present case counsel for the claimant, Miss White, has attached particular significance to the advice in the guidance that schools should try every practical means to maintain a pupil within the school, including seeking Local Authority or other professional guidance. That is so because the present claimant was receiving School Action Plus support in the preceding year, and this was discontinued not because it was proving ineffective but, on the contrary, because the claimant had made such progress that the support was no longer considered necessary. The Panel itself recorded that the pupil did "very well while on PSP". On 10th November 2006 there was a review of the PSP and "things had gone well", said the Panel. Experience and not only the word of the guidance suggests that the intervention of further assistance from School Action Plus might address the behavioural problem that the claimant was judged to have manifested.
10. In determining whether exclusion might be prevented by less drastic action, such as further recourse to assistance provided by School Action Plus, the Panel had to consider the nature of the conduct said to warrant the exclusion of this pupil. It is on this point that the Panel recorded the material placed before it by the school and was critical of the evidence that the school had presented. I set out in the Panel's words a litany of the complaints made to the Panel by Miss White of counsel:

"The witness statements were not dated. Just as importantly the statements did not give dates, whether exact or approximate, for the various incidents that occurred. The exclusion letters of 10th October 2007, 9th November 2007 and 14th November 2007 did not give precise reasons for their respective exclusions. There was no written record for the further meeting that Mr King said had taken place with [the pupil] to put the second round of allegations. It was a particularly serious error that, by his own admission Mr King did not put directly to [the pupil] the second round of allegations. It was not enough to say that the family could put their case to the Governors. The Panel considered that it would have been preferable if [the pupil] had been given a chance to respond before the permanent exclusion was made. However, the Panel concluded that it was still the same pattern of conduct about which [the pupil] had previously been warned. In addition Mr King confidently asserted in the hearing that [the pupil] had attended at the Governors' meeting before having to accept [the pupil] had not been present. The Panel found that [the pupil was] genuinely confused and upset at the Governors' meeting and the school's practice had contributed to this. [The pupil was] not provided with the witness statements at the Governors' hearing. In addition the clerk to the Governing Body of this school does not produce full minutes of the Governors' meeting which, while not strictly necessary, would be helpful to all parties at the Independent Appeal Panel, and certainly would have assisted in this case."

11. I agree with these criticisms. They have considerable force and their force was accepted by the Appeal Panel. Indeed, I would go further than the Panel where it says it would have been "preferable" if the pupil had been given a chance to respond before permanent exclusion was made. It is to my mind elementary that a Panel must give an opportunity to the pupil, or in his absence to his parents or representative, to respond to the allegations against him before a decision is made on the basis of those applications. In order to respond the pupil must be told of the nature of the allegations against him, at least with sufficient particularity to enable him to respond meaningfully.
12. It has been submitted to me on behalf of the claimant that the evidence of the school presented to the Panel was contradictory. I shall not rehearse each of the aspects of which it is said that the evidence was contradictory, but there are some that merit particular mention.
13. A statement was made to the Panel by the complainant, a girl to whom I shall refer as "G". It is common ground that there had been an episode (not being the episode in respect of which permanent exclusion was taken) in which R had said to G words to the effect "I am going to rape you". In consequence of his using those words, R was suspended from the school from 11th to 16th October 2006. In her statement G said as follows:

"After R came back from his suspension, after school on Tuesday R came to me in the playground and said 'Are you going home alone because I'm going to rape you?'"

It is now submitted on behalf of the Panel that this passage in this statement from G makes sufficiently clear the date, time and place at which the words were said to be uttered. Counsel submits that the words "after R came back from his suspension" can refer only to the suspension from 11th to 16th October and then the following words "after school on Tuesday" must refer not to Tuesday 23rd October 2006 (which was during half term) but the following Tuesday, 30th October 2006.

14. If that is right then, says Miss White, it is inconsistent with what was said by the headmaster, Mr King, who placed the date of the offending words on 9th November. It may not be a coincidence that 9th November, although in the year 2007, was the date of a letter by the headmaster. On the face of it there is a lack of clarity as to the date upon which the words were alleged to have been said, but there is to my mind there is no lack of clarity on this point: that the offending words were alleged to have been said to the complainant G by the boy R after, and it had to be inferred some time shortly after, he came back from his suspension on 11th to 16th October 2006. The question is whether that gives sufficient particularity to anybody to respond meaningfully to the complaint made against him.
15. It is also said by Miss White on behalf of the complainant that it is inconceivable that the claimant's school teacher, Mr Otto, would fail to have made notes of the complaint by G or that the action taken against R would be significantly delayed after 30th October 2006, as it certainly was, in view of the gravity of the allegation made against him.
16. On this point I am less troubled than on the first. There are many plausible reasons why Mr Otto may have failed to make a note or may have failed to adduce to the Panel any notes that he took and also plausible reasons why the school may have taken some time to determine what action was to be taken against R, assuming, as I do, that the words that he is alleged to have used to G are not to be taken at face value as a real threat to commit a crime of violence upon a child.
17. I turn therefore to the question of whether uncertainty as to the date was such as to infect the hearing before the Panel. On this point fortuity assists the Panel. The hearing took place over two half-days some three-and-a-half months apart. No application was made for any adjournment of the hearing as might have been made if there were serious difficulty in ascertaining the date to which G's complaint referred. Indeed the intervening three-and-a-half months might have provided sufficient time for the lack of clarity which can now be detected by the industry of counsel to be resolved.
18. The essential allegation against R was that notwithstanding his suspension for making such a threat against G once, he returned to school and in the playground made the same threat again. His reply to that was that he never made such a threat: not that he was away on a particular date or that he had somebody with him, but he simply did not make the threat at all.
19. I am unable to conclude that such difficulty as may have existed in relation to the determination of the date upon which the alleged words were used to G was such as to present R with a difficulty in presenting his defence so as to make it unfair for the tribunal to reach its determination.
20. It is then said by Miss White on behalf of R that the contradictory nature of the school's evidence was such that there was only one finding rationally open to the tribunal and that was a finding that exclusion was inappropriate. Miss White correctly appreciates that if she is to make good that part of her case she must overcome a very high threshold indeed. The question before me is not whether R or G was telling the truth, but whether there was evidence on the basis of which the tribunal could reach the decision that it did. The tribunal did have before it material which to my mind justified this conclusion. It had before it a statement by the girl G, to which I have referred, and which refers to words which took place "after R came back from his suspension." It had also the evidence of a statement made by Gary Gibson, Assistant Head Teacher, which unfortunately is not dated but says:

"I was in the school playground during lunch break, when G came up to me in a distressed state and said, 'He's doing it again.'

I said, 'Who is?'

She said, 'R, he's stalking me.'

G was upset and did not wish to return to her classroom."

They also had the oral evidence of the Headmaster, Mr King, and the teacher responsible for discipline, Miss Whittaker. Above all they had before them boy R himself and were able to assess his reactions and form a view of his truthfulness or otherwise. It was upon this basis that the tribunal was entitled to reach its decision.

21. Miss White submitted that the errors made by the school, which I acknowledge, were sufficient to infect the procedure before the Panel. It is true that circumstances may arise in which an error by a lower body may infect a decision of an appellate body. There is authority for that proposition, for instance, in the judgment of Megarry J (as he then was) in Leary v National Union of Vehicle Builders [1971] Chancery 34. But Lord Wilberforce confined that case essentially to decisions by Trade Union Bodies in Calvin v Carr [1980] AC 574, 593. Independent Appeal Panels hear cases of exclusion de novo and although the school cannot introduce new reasons for exclusion, all parties are given an opportunity to respond to any new evidence - see paragraph 139 of the guidance on exclusion to which I have referred. The law is properly summarised by Keene LJ in A [2002] EWCA Civ 1822, he said:

"... it is very difficult to see how a proper decision arrived at by the IAP after a fair hearing could be liable to be quashed because of a defect in the earlier decision-making process, unless that defect has in some way infected the appeal decision. So long as an independent appeal body is entrusted with the task of dealing with the merits of the case fully and de novo, and it then does so in a way which by itself is not open to challenge on normal judicial review grounds, that appeal decision should not be struck down unless it has been contaminated in some real sense by the defect in the earlier decision-making process. Indeed, why should it be quashed when the applicant has had a full merits appeal heard by such a body? To quash it merely because of the earlier defect would seem to rob the appeal process of any sensible purpose."

22. There is, as I have observed, one defect in the appeal process which concerns me most and that is the difficulty that arises in determining the date on which the boy, R, is said after returning from his suspension to have repeated his threat to the girl G. I cannot, however, conclude that such uncertainty as there is about that date can be said to have contaminated in some real sense the procedure by the Panel. The Panel gave a full and detailed judgment. The conclusion which it reached can only be explained upon the basis that it did not accept the denial by the boy R of any second episode of a threat to the girl G.
23. I wish to add only two comments by way of postscript. The first is that although I have had cause to say, as did the Panel, that the school made some errors in the course of the procedure leading to the Panel's determination, my reading of the file has included correspondence between the headmaster Mr King and the headmaster of the school at which R is now engaged. This leaves me with the impression that Mr King is an admirable and caring headmaster who has enduring interests in the welfare of R. This is altogether commendable.
24. The second is that cases in which the High Court would be asked to entertain an appeal against an Independent Panel and will grant leave will be exceptional. Independent Appeal Panels are composed of individuals knowledgeable in educational matters and while they must comply with the principles of fairness that apply to all Panels, for educational matters the court will defer to their judgment. For the reasons I have given judicial review will be refused.
25. It is therefore ordered that:

1. Claimant's application for judicial review is dismissed.

2. Pursuant to the Children and Young Persons Act 1933, s.39, no report of these proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in these proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein.

3. The Claimant shall pay the Defendant's costs of the claim, such costs to be subject to detailed assessment in default of agreement. The amount of the Claimant's liability for so much of the costs as were incurred whilst the Claimant was an LSC funded person is to be determined in accordance with regulation 10 of the Community Legal Service (Costs) Regulations 2000.

4. There be a detailed assessment of the costs of the Claimant which are payable out of the Community Legal Service Fund.