England and Wales High Court (Administrative Court) Decisions

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

		Claim No: CO/2845/2017 The Civil Justice Centre 2 Park Street Cardiff
		1 September 2017

Introduction – the parties

1. This is an application for judicial review of a decision made by the defendant appeal panel. Permission to apply was granted on the papers by the single judge (His Hon. Judge Vosper, QC, sitting as a judge of the High Court.)
2. The Claimant is a child, LB, who acts by her mother and litigation friend, SB, and who challenges the decision of the defendant panel ("the IAP") to uphold her permanent exclusion from Bassaleg Comprehensive School ("the School") in respect of which the first interested party, the Council, is the local education authority, and the second interested party is the governing body.

The facts

3. LB joined the School in year 7 in September 2014 when she would have been 11 years of age. The School's records refer to a diagnosis of attention deficit hyperactivity disorder ("ADHD") which had been made when LB was at infant school. The only significance of that is that it was accepted to be a protected characteristic in Equality Act terms in proceedings before the Defendant and the interested parties, to which reference will be made below.
4. LB was placed in a small group with a higher level of support during year 7. The School's behaviour records show that reports of LB's behaviour indicated that it had deteriorated during year 9 (i.e. from about age 13), but no incident in that year is relevant to the issues in these proceedings.
5. The incident that led to permanent exclusion took place on 11 January 2017. LB had been one of a number of girls who were separated by staff following some verbal altercation between two groups, and one or more of the girls in the other group was being escorted by a teacher, Mrs Sullivan, into an office. LB, who had been told to go to a different part of the School, pushed against the office door, refusing to let it shut, and then forcibly pushed the door against Mrs Sullivan. LB said (in an account emailed by her mother) that she had then slapped one of the other girls. Other evidence suggested that LB had attempted to hit one of the other girls ("pupil 2") but did not do so, instead striking Mrs Sullivan.
6. Mrs Sullivan's account, which was accepted by both the head teacher and the governing body, and also by the defendant panel, was in terms which follow.

"While I was trying to close the door [LB] started screaming and trying to get inside. I kept asking her to leave but she put her body weight behind the door and it slammed into my chest and pushed me backwards towards [pupil 2] as she was trying to get to [LB]. [LB] then came into the room, ignored the fact that I was stood in front of her. She shouted "Get out of my f____ way to me and when she couldn't get past after jostling me against [pupils 2 and 3] she pushed me out of the way with her arm and I fell against the desk."

The head teacher's decision

7. The child's mother, SB, was contacted immediately after the incident and asked to take LB home. She was then telephoned the same evening and told to keep her out of school pending a meeting at the school on 17 January 2017. At that meeting, it seems to be common ground that SB was effectively told by the head teacher that LB was to be permanently excluded, and was asked to sign a form requesting a "managed move" to another school but without any details of what the proposed managed move would involve. LB's understanding was said to be that by signing the form she would be agreeing to permanent exclusion and that it was not explained to her that a managed move could be an alternative to permanent exclusion. Be that as it may, SB declined to sign the managed move form at that meeting, and subsequently received a letter dated 17 January 2017 informing her of the head teacher's decision to exclude LB permanently from Thursday 19 January 2017. This letter stated that,

"[LB] has been excluded permanently because she has physically assaulted a member of staff and a fellow pupil."

The governing body's review

8. The decision to permanently exclude was considered by a meeting of the discipline committee of the School's governing body on 2 February 2017. The exclusion was upheld in the terms that follow.

"A decision to exclude a learner …" [i.e. a pupil] " … permanently is a serious one and is the final step in a process of dealing with disciplinary offences after following a wide range of strategies. However, in exceptional circumstances permanent exclusion can be for a one-off offence of serious actual violence against another learner or a member of staff.

"This was a case of violence against a pupil and a member of staff. The Committee has therefore decided to uphold the decision of the head teacher to exclude [LB] permanently."

(For some reason which is not entirely clear the word "learner" is used in official guidance interchangeably with the word "pupil", which may account for the governing body's use of both terms. There is no difference.)

The appeal to the IAP

9. On her daughter's behalf SB appealed to the IAP, which sat on Friday 17 March 2017. During the IAP hearing, the head teacher said that LB had been temporarily excluded from 11 January 2017, and that she had decided to convert the temporary exclusion to a permanent exclusion after considering the evidence of Mrs Sullivan.
10. The IAP's conclusions were as follows.

(1) On the balance of probabilities the incident had occurred "in the way that the school describe."

(2) It would therefore consider whether permanent exclusion was justified and proportionate.

(3) The School had offered LB a managed move "but this offer was declined by the family" and the School "had therefore fulfilled its duty to consider alternative solutions before taking the decision to exclude…."

(4) Consequently "… the gravity of the incident …," was such that "… further efforts to maintain [LB] within the school under a pastoral support programme or an internal exclusion would not have been appropriate."

(5) The head teacher had initially decided to exclude for a fixed term on the basis of the pupils' statements, but having read Mrs Sullivan's statements made the "exceptional" decision to convert this to a permanent exclusion.

(6) Whilst in certain respects the "proper processes" in implementing the decisions of the head teacher had not been followed, such irregularities did not justify LB's reinstatement.

(7) LB had not been treated less favourably for a reason related to disability (it being accepted that her ADHD is a disability for these purposes), essentially because it did not accept that her "impulsivity due to her ADHD played a part in this incident."

(8) "Overall," the IAP held that the decision was "proportionate" and "justified" as "[t]he offer of a managed move was declined by the family and there were no other options to keep [LB] within the school."

Relevant guidance

11. The Welsh Government has published guidance on exclusion from schools and pupil referral units, most recently in April 2015. The following parts of that guidance are relevant to this case:

"1.1 The decision to exclude

1.1.1 A decision to exclude a learner should be taken only:

• in response to serious breaches of the school's behaviour policy

and

• if allowing the learner to remain in school would seriously harm the education or welfare of the learner or others in the school.

….

1.1.4 There will,…, be exceptional circumstances where in the headteacher's judgement it is appropriate permanently to exclude a learner for a first or one-off offence. These might include:

• serious actual or threatened violence against another learner or a member of staff

….

1.1.5 In most cases it would be appropriate for schools to inform the police if they believe such a criminal offence has taken place. ….

…

1.5 Alternatives to exclusion

1.5.1 Exclusion should not be used if alternative solutions are available. Examples include the following.

…..

• Managed move: if a school feels that it can no longer manage the behaviour of a particular learner, the school may arrange, normally through the LA, for another school to take over the learner's education. This should only be done with the full knowledge and cooperation of all parties involved, including the parents/carers and the LA, and in circumstances where it is in the best interests of the learner concerned. Parents/carers should never be pressured into removing their child from school under threat of a permanent exclusion…

12. The Welsh Government has also issued an Information Document in respect of "Effective managed moves" which describes a managed move as (paragraph 1.1) "a carefully planned transfer of a pupil from one school into another" which might be appropriate inter alia where (paragraph 1.2) a pupil is "at risk of permanent exclusion". The guidance states that "[m]anaged moves should not be used merely as an alternative to permanent exclusion as this would be denying parents and pupils the right to appeal against the exclusion" and sets out (at paragraph 1.4) a detailed process for setting up a managed move, beginning (1.4.2 para 1) with "[d]iscussions between the Headteacher, parents/carers and the pupil."
13. The guidance makes it clear that only in "exceptional circumstances" will it be appropriate to exclude a pupil for a one-off offence. Counsel for the Claimant submitted that the School had expressly stated before the IAP that "the incident itself led to the exclusion, not the behaviours leading up to it." Thus, the submission went, in order for the IAP to find that the decision for permanent exclusion was in accordance with the Guidance it was necessary for it to have found that exceptional circumstances of the kind listed at paragraph 1.1.4 of the Guidance applied. The School's case, as stated in the decision of the governing body to uphold the permanent exclusion (although not expressly so recorded by the IAP), was that this was a case of serious actual violence against another "learner" or a member of staff.

The decision of the IAP

14. Ms Ward, counsel for the Claimant, submitted that the decision in this case was flawed as it does not contain any express consideration of whether LB's conduct amounted to "serious actual violence." She submitted that the evidence was not clear in relation to the degree of violence (if any) against Pupil 2: the only direct evidence was LB's own statement recorded in her mother's email that she had "slapped" Pupil 2.
15. The IAP stated that it had relied in particular on Mrs Sullivan's statement, but that said nothing about LB hitting Pupil 2. In respect on the assault upon Mrs Sullivan herself, the head teacher had accepted before the IAP that LB had not used "deliberately targeted aggression" towards her. Miss Ward made the point that by paragraph 1.1.5 of the guidance [supra] it was provided that, "[i]n most cases [of serious actual or threatened violence or other criminal offence] it would be appropriate for schools to inform the police …" but that had not happened here. The absence of any consideration by the panel of whether the head teacher should have reported the matter to the police was itself indicative not of a high level of seriousness, but of a relatively low level.
16. Counsel for the Claimant submitted that the challenge was not on the ground of perversity or of irrationality, but on the ground that the panel had failed to ask itself the relevant question and thus had not taken into account a relevant matter. In those circumstances the IAP "had failed to address the first key issue to which it was directed by the Guidance, namely whether the offence in this case was sufficiently serious, exceptionally, to justify permanent exclusion for a 'one-off' offence." Putting the matter in a different way, the panel had not had 'proper regard' to the Guidance, or (alternatively) had materially erred in its approach to whether paragraph 1.1.4 was satisfied.

The case for the IAP

17. Counsel for the IAP submitted that any challenge on the basis that the IAP had failed to spell out the fact that it had concluded that this was a case of "serious actual violence" was (in effect) an argument of form over substance. The question which the panel had to consider was not whether it considered the violence used in the incident to be serious but whether "the incident generally" including the violence was "serious."
18. The IAP, Mr Morris submitted, clearly considered the essential point: the "gravity of the incident" was referred to, as was the "serious nature of the incident". In its decision the IAP expressly stated that "the incident warranted a permanent exclusion sufficient to fall into the 'exceptional circumstances' category".
19. For counsel for the Claimant to suggest that the IAP failed to address the issue of whether the conduct had been sufficiently serious, exceptionally, to justify permanent exclusion for a single instance was not, Mr Morris submitted, a sustainable point in the light of the findings of fact made by the IAP. It had come to an entirely reasonable, if not inevitable, conclusion that those facts amounted to serious actual or threatened violence within the relevant definition, which did not require there to have been serious consequences, still less serious injury resulting from it: the Guidance included merely threatened violence. In assessing whether a particular offence could reasonably fall within the definition, an IAP (or school or governing body) must be permitted to consider whether it constitutes a serious incident of violence (actual or threatened), taking into account all of the circumstances of the case.

Discussion

20. I asked counsel to consider whether, in a document which described itself simply as "guidance", the phraseology

-- "… exceptional circumstances where in the head teacher's judgement it is appropriate permanently to exclude a learner for a first or one-off offence … might include … serious actual or threatened violence…" --

could permissibly be read in such a way that the test of "serious violence" would be passed if it were a case where the circumstances were "serious" (involving for example premeditation, persistence, defiance, or insolence) but the actual violence was limited to a push or a slap: in other words would a "serious case involving actual violence" amount to the same thing as "a case of serious actual violence"?

21. In answering that question in the negative, counsel for the Claimant, made reference to a case involving judicial consideration of identically-worded guidance on this point, by Ms. Belinda Bucknall QC, sitting as a deputy judge of the High Court, in the case of Regina (G) v IAP of London Borough of Bexley [2008] EWHC 3051 (Admin) in which she said that

"Since the Claimant had been permanently excluded because of a one-off act, the Defendant had to consider whether what had been done constituted "serious actual violence" within the scope of … the guidance."

and that:

"[t]he exceptional circumstance referred to … clearly involves an intentional targeting of the victim "violence against"; mere undirected violence, even if by chance a member of staff becomes a victim of it, will not fall within the scope of the paragraph. Intention, therefore, had to be investigated…."

22. With all due respect to the judge's view, I am not sure that any element of specific intent (if that is what she meant by "intentional targeting") would be necessary, but that part of the judgment might be regarded, in any event, as obiter since it was not essential to her decision.
23. The words to be construed need not be subjected to the rigours of the principles of statutory construction since that they are not the words of a statute. They are words of guidance only. What they do provide, however, is the need for a clear focus. Essential to that focus, it seems to me, is the concept of "serious actual violence" (this not being a case of threatened violence) as it would be understood by a reasonable and independent appeal panel.
24. If the IAP had taken the view in this case that relatively minor actual violence may constitute an exceptional case of "serious actual violence" justifying permanent exclusion, by reason of the surrounding circumstances in terms of insolence, premeditation, or other factors, they should, in my judgment, have said so in terms, giving reasons for their decision. As the single judge put it:

"[i]t was necessary… for the defendant to be satisfied that the claimant's conduct included such serious actual or threatened violence. It is the violence (actual or threatened) which must be serious. It is arguable that the defendant never made a finding that the violence in this case reached that level. …. [the panel] … refers to the "gravity of the incident" and to the "serious nature of the incident" but does not conclude that the violence… was serious. …. A finding that the claimant used or threatened serious violence was a condition of her permanent exclusion if the guidance was to be followed."

Conclusion on the 'guidance' point

25. I respectfully agree with and adopt those observations, and since the panel did not clearly make a finding that the claimant had used or threatened serious violence, the view the panel took of the claimant's behaviour generally is beside the point. In those circumstances it is in my view appropriate to grant the application for judicial review on this ground, and to grant the Claimant the relief sought, which is essentially a reconsideration of the case by the panel in the light of this judgment.
26. In view of the urgency of the matter, the new academic year being so close at hand, I shall express my view upon the other grounds for the application in the briefest terms.

Proportionality

27. So far as proportionality is concerned, the guidance states at paragraph 1.1.1 that a decision to exclude should only be taken "if allowing the learner to remain in school would seriously harm the education or welfare of the learner or others in the school". Counsel for the Claimant submitted that the decision of the IAP neither gave direct consideration to this point, nor did it set out what the risks to the welfare of others in the school might be which outweighed the interests of the Claimant in being permitted to remain. In particular, there appeared to have been no assessment of any risk that the Claimant might behave in such a way again, nor (if they thought there was) of such means as might be available to the school to reduce or avoid such a risk. Whilst there was no suggestion that allowing the Claimant to remain in the school would result in harm to her own education or welfare, the basis for any view that allowing her to remain in the school would result in harm to the education or welfare of others is not spelt out.
28. Counsel for the IAP robustly disputed these assertions. Mr Morris submitted that the IAP had expressly considered the issue of proportionality within its decision, beginning with the words:

"The Panel then went on to consider whether a permanent exclusion was justified and proportionate in all the circumstances of the case"

at p.195 of the trial bundle.

29. Mr Morris submitted that the IAP had set out the reasons for its decision that reinstating the Claimant created a risk of serious harm "to the education or, more appropriately, welfare of others in the school" and gave a number of examples. I select only a few of these by way of illustration.

(1) At p. 191: "... the school had to look at future risk with a one off incident and the fact that this might happen again. Mrs Thomas [the head teacher] felt she had a duty of care to the staff and to the pupils. Mrs Thomas said that she hadn't had an incident of that scale in the school and that it's with a heavy heart this decision was taken, it wasn't a flippant decision."

(2) At p. 192: "Mrs Thomas said ultimately you have to have a principle at some point and that there is a line there for all children...." (This was referred to at the hearing as the 'line in the sand' approach.)

(3) At p197: "The Panel also accepted Mrs Thomas' evidence about balancing the needs of one pupil against the wider school community and the impact the incident had had on them."

30. Such points, it was submitted showed that the panel had had appropriate regard to the impact of the incident on all concerned, and that it ultimately agreed with Mrs Thomas that the exclusion was necessary in order to protect staff and pupils from the likelihood of such an event occurring again.
31. Mr Morris then made the point that,

"[m]uch of the time during the IAP hearing was taken up in discussion surrounding LB's special educational needs and disability under the Equality Act, although the points made then are not pursued now in these proceedings. Particularly in this context, the IAP was demonstrably careful to ensure that it had considered all matters put before it in the context of proportionality."

32. Counsel submitted that in the case of G [supra], the court had "implicitly approved the 'line in the sand' approach." In her judgment the judge has said:

"31.... As to... the question of proportionality, the defendant carried out that balancing act and in so doing took into account as it was required to do by the guidance in para 136 of the 2006 guidance, the impact that such an incident would have on the school as a whole, other pupils and the staff. The evidence before it on that point was the passage from the head teacher's exclusion statement cited above, to which it was entitled to add its own collective professional experience. It concluded that permanent exclusion was a proportionate response to the incident in question...

"32. Its overall conclusion was that the incident in question was the sort envisaged by the guidelines where a head teacher could reasonably exercise his judgment permanently to exclude the pupil."

"35. ... taking the facts as they were admitted or reasonably found, expressly or implicitly, to be, the defendant's decision that permanent exclusion was proportionate to the one off serious violence against the teacher, is not one that in my judgment can be said to be irrational or unreasonable."

33. Counsel submitted that the present case was "entirely analogous". In the case of G, the school had justified its decision to exclude the pupil permanently on the ground of the 'seriousness' of the incident and the 'great distress' caused to the teacher concerned, having regard to the head teacher's duty of care to staff and to other pupils. The Court had made reference to an IAP being entitled to bring its own 'collective professional experience' to the decision-making process, and having done so in that case, the court held that its conclusion to uphold the exclusion was not irrational or unreasonable. Making a comparison on the facts of both cases, counsel submitted that in the present case, the misbehaviour of LB was worse than that of the pupil in G: it had been prolonged, premeditated and had involved violence against both a pupil and a member of staff. In such circumstances it could not reasonably be argued that the decision in this case was disproportionate, irrational or unreasonable.

Conclusion on proportionality

34. The criticism that the panel failed to spell out its reasons for its finding on proportionality in detailed terms in its decision is not an irresponsibly made point. The panel could, and perhaps should, have given greater detail of the balancing exercise. However, I accept the points made by Mr Morris that the panel had adequate regard to the principles involved, and had this been the only ground for the application for judicial review it might very well have resulted in the refusal of the application.

The "managed move" point

35. As already mentioned above, the claimant's mother had been contacted immediately after the incident and asked to take LB home. She was then telephoned that evening and told to keep LB away from the school pending a meeting on 17 January 2017. At that meeting, Miss Ward submitted that,

"SB was effectively told that LB was to be permanently excluded, and was asked to sign a form requesting a 'managed move' … but without any details of what the proposed managed move would involve. Her understanding was that by signing the form she would be agreeing to permanent exclusion; it was not explained to her that a managed move could be an alternative to permanent exclusion."

36. SB declined to sign the managed move form at the meeting, and subsequently received a letter dated 17 January 2017 informing her of the head teacher's decision to exclude LB permanently from Thursday 19 January 2017. In dealing with the matter that way it is submitted that the head teacher failed to follow the guidance, as it requires that,

"… if a school feels that it can no longer manage the behaviour of a particular learner, the school may arrange, normally through the LA, for another school to take over the learner's education. This should only be done with the full knowledge and cooperation of all parties involved, including the parents… and the LA, and in circumstances where it is in the best interests of the learner concerned. Parents… should never be pressured into removing their child from school under threat of a permanent exclusion …."

37. Mr Morris's submission on this point was that the IAP clearly reached its decision as to proportionality (as it did on the issue of whether the one-off incident conditions were met) solely on the basis of the incident itself. It could not be said that the IAP made its findings on the basis of rejection by SB of the offer of a managed move. That had no bearing on the decision. In any event, it was submitted, the IAP would have reached the same conclusion as to proportionality if it had not taken into account the managed move offer as the exclusion in this case was due to a single incident, it was not necessary for the School or the IAP to consider alternative options, once the threshold of the seriousness of the incident and the proportionality of the response had been crossed. In such circumstances alternative disposals were neither available nor relevant.
38. Those points Miss Ward dealt with by submitting that there was no evidence which had been filed on behalf of the defendant or on behalf of the interested parties which contradicts the account given by the claimant's mother of these matters. Thus, submitted counsel, the panel appeared to have taken into account the fact that a managed move was offered as part of its purported consideration of proportionality. It was clear that the panel's reasoning relied, wrongly, on its view that "the school had therefore fulfilled its duty to consider alternative solutions".
39. Moreover, counsel submitted, the failure to follow the guidance on managed moves was material to the proportionality of the decision permanently to exclude the Claimant, as SB might have (indeed, her evidence was that she would have) accepted a managed move had it been properly explained to her.

Conclusion on the 'managed move' point

40. I accept the submissions of counsel for the Claimant, for the reasons which she gave, and grant the relief sought upon this point in addition to the 'guidance' ground.

Other grounds

41. Judicial review is a discretionary remedy to be exercised with caution and with the overriding objective of the CPR always being borne firmly in mind. The conclusions I have reached upon the grounds I have dealt with are sufficient to grant the Claimant the relief she seeks in terms of appropriate reconsideration of the case by the panel. Neither the public interest nor the interests of the parties will be served by taking up time in so urgent a case to deal with the other grounds.
42. I shall invite counsel to confer and to draw up an appropriate draft minute of the appropriate order of the court, which may be submitted for approval administratively, together with any submissions on costs or other consequential matters.

1 September 2017