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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> F.D.v. Minister for Education [2019] IEHC 643 (13 September 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_643.html
Cite as: [2019] IEHC 643
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 643
[2019 No. 525 J.R.]
BETWEEN
F.D. (A MINOR) SUING BY
HIS MOTHER AND NEXT FRIEND J.C.
APPLICANT
AND
MINISTER FOR EDUCATION AND SKILLS,
PAIRIC MCDONOGH, SEAN ROWLEY AND CHRISTINA CASSERLY
RESPONDENTS
AND
BOARD OF MANAGEMENT OF A SECONDARY SCHOOL
NOTICE PARTY
JUDGMENT of Mr. Justice Allen delivered on the 13th day of September, 2019
Introduction
1. This is an application by way of judicial review for an order of certiorari quashing a
decision of an appeals committee which was appointed pursuant to s. 29 of the Education
Act, 1998, rejecting an appeal against a decision of the board of management of a
secondary school to permanently exclude a student from the school.
Facts
2. The student is a boy who is sixteen years old. He was diagnosed with autism spectrum
disorder at the age of two years and five months. He attended primary school for five
years between the age of seven years and twelve years.
3. In 2016 the student’s family relocated to the area where the notice party school (“the
school”) is located, specifically because the area had both a primary and a secondary
school with dedicated ASD units. Before relocating, the student’s mother had visited both
schools and had been informed that there would be a place for him in each of them.
4. The student was first enrolled in the primary school for a brief period. The mother took
the view that the autism unit in that school was inappropriate for him and his needs, and
he was withdrawn from the primary school and home schooled until September, 2016
when he was enrolled in the school.
5. It is accepted that from the outset, and throughout his time in the school, the student’s
behaviour was challenging. From the mother’s perspective, the student struggled in the
school which did not have the necessary resources or skills to deal with his disability.
From the school’s perspective, there was an increasing pattern of unpredictable
aggressive behaviour which, notwithstanding concerted efforts, the school was unable to
manage.
6. In the 26 months or so during which the student was enrolled in the school, there were
over 70 recorded assaults against staff and ten assaults against students. There was
daily contact between the mother and the school when she brought and collected her son,
and there were 30 formal meetings convened to discuss his behaviour.
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7. The event which precipitated the student’s expulsion occurred on 14th November, 2018.
There is no dispute as to the occurrence or the nature of the incident. The mother
describes that the student was particularly distressed and acted out aggressively. The
school principal describes that the student threw a water bottle at another student in the
ASD classroom. The other student had a shunt in her brain. The water bottle could have
hit the other student on the head, and a potential disaster was only averted by the quick
intervention of a special needs assistant.
8. Immediately after this incident the mother was sent for and she took the student home.
At a meeting on the following day the mother was told that unless she withdrew her son
from the school, the principal would recommend to the board of management that he
should be expelled. The mother briefly contemplated that she might withdraw her son
but having taken advice from the National Council for Special Education decided to fight
the proposed exclusion.
9. By letter dated 20th November, 2018 the mother was formally advised of the principal’s
recommendation to the board of management that the student be expelled:-
“… for continuing breaches of our Code of Behaviour in the form of violence towards
other students and staff. The investigation was carried out using all reports written
after such incidents and also records of supports/strategies used to accommodate
[the student] in [the school]. Under Section 8.9 of our Code of Behaviour [the
student] is a serious threat to the health and safety of himself, other students or
members of staff.”
10. The mother was provided with copies of all of the records which had been provided to the
board of management, which was to meet on 26th November, 2018. The mother was
advised that she could attend that meeting, accompanied if she wished by some other
person, and would have the opportunity to make written and oral submissions.
11. The board of management met on the evening of 26th November, 2018 and heard from
the principal and from the mother. The mother contested the significance and
characterisation of seven of the eighty recorded incidents. She indicated that while she
did not condone, neither did she condemn her son’s behaviour. She did say that she was
shocked by it. In broad terms, the mother’s case was that the school could and should
have done more for the student.
12. By reference only to the uncontested incidents, the board of management decided to
“expel the student due to a serious threat to the health and safety of the student, other
students and members of staff”, and the mother was advised of the decision by letter
dated 27th November, 2018.
13. As required by s. 24 of the Education (Welfare) Act, 2000, the relevant educational
welfare officer was notified of the opinion of the school to expel the student, and the
reasons for that opinion.
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14. Because the school was an Education and Training Board school, there was a right of
appeal to the relevant Education and Training Board. The mother availed of that right of
appeal, but it was unsuccessful.
15. By notice dated 28th March, 2019 the mother appealed to the Secretary General of the
Department of Education and Skills. The Secretary General duly appointed an appeals
committee, made up of the second, third and fourth respondents, which met on 8th May,
2019.
16. The substance of the mother’s case was that the school could and should have done more
for her son. Her case was that the student’s behaviour was a manifestation of his
disability which had not been recognised and dealt with by the school as such. In a
written submission to the appeals board the mother made the case that:-
“Lack of training, resources, experience, expertise, understanding and most notably
over reliance on SNAs to carry out responsibilities for which they were not trained
contributed to the development of my son’s anxiety, frustration and inability to
cope in the class. He developed clear exit strategy behaviours to remove himself
from that classroom. SNAs were expected to understand and modify behaviour
and occupy the children with work activities when teachers were regularly absent.
Staff changes, including the principal, the class teachers and [special educational
needs coordinator], coupled with regular missed classes and timetables precluded
my son from being able to rely on predictability. Staff shortages in the school are
endemic with scores of missed classes having occurred in the mainstream school
with a very negative knock-on effect in the autism specific classroom.
[The school] has now had ample opportunity to reflect on their own behaviour and
on their need for up-skilling, general management and strategy of the autism
specific class. The principal refers to changes which have occurred in the autism
unit, changes which were a long time coming and many of which were the result of
parental guidance and pressure. They have had ample time to understand that
autistic pupils are enrolled in autism specific provision to receive instruction and
education from informed, trained and highly experienced staff who understand the
complexity of the condition. The fresh professional reports which now follow my
son, provide comprehensive instruction and advice on how to meet his individual
needs as an autistic learner. Similar information followed him in 2016. The dates
of the reports have changed but the advice and content has largely remained the
same.
I appeal the decision of [the school] to expel my son from their school on the
grounds of health and safety. [I] disagree with much of what the school has said
about my son in this appeal process. My son was expelled due to the school’s own
frustration emanating from their own historical incapacity and inability to recognise
and meet my son’s needs as an actually autistic child. I ask that the expulsion
decision based on health and safety be overturned so my son can return to his only
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locally available autism specific classroom, one which was established and funded
to meet the educational needs of autistic students in its catchment area.”
17. The school provided the appeals committee with a nine-page written submission and a
bundle of material.
18. The school’s case was that the student had been permanently excluded on the grounds of
health and safety. The appeals committee was told that the student had been repeatedly
aggressive and violent. It was emphasised that he was over six feet tall, and
considerably bigger and stronger than some of the staff.
19. In its submission to the appeals committee, the school refuted the mother’s criticisms of
the facilities available in the school, and to the student; the level of training and expertise
of the staff; and the support and interventions given to the student. The submission
specifically addressed the question of “strategies/interventions”.
20. The Board of Management submitted that:-
“It can be seen from all documentation submitted from [the mother] and from the
school that the management and staff of [the school] did not stand back and watch
this unfold. Every attempt was made to upskill and train staff. The school has
clearly made a great effort to communicate regularly and appropriately with [the
mother]. Many emails were sent, and phone calls were made to all available
authorities seeking advice and assistance.
Staff and management in [the school] have gone over and above what is expected
of them in this situation while facing the threat of violence on a daily basis.”
21. In a decision dated 10th June, 2019 the appeals committee refused the mother’s appeal.
To understand the challenges to the committee’s decision it is necessary to set it out in
full:-
“The Appeals Committee does not uphold the appeal under section 29 of the
Education Act, 1998.
The Chairperson outlined the format of the hearing to the participants.
An initial adjournment of some fifteen minutes was given to allow the parties time
to read additional written submissions supplied by the appellant at the beginning of
the hearing.
In accordance with its jurisdiction as set out by the Supreme Court in Board of
Management of St. Molaga’s National School v. The Secretary General Department
of Education & Others, Supreme Court, [2010] IESC 57, the appeals committee
conducted a full hearing of the matter under appeal.
The appeals committee does not uphold the appeal for the following reasons:
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•
The committee determined that [the school] adhered to its Code of Behaviour
in permanently excluding [the student] from the school.
•
The committee determined that Board of Management’s decision was
reasonable in view of the number of assaults and aggressive behaviours
perpetrated by [the student] towards himself, other students and staff in the
school.
•
The committee’s observation that all the parties accepted that [the student]
engaged in unpredictable aggressive and violent behaviours on occasion in
the school.
•
The committee accepted that the frequency of aggressive acts and the
difficulty in identifying trigger indicators, constituted a real concern for the
board in ensuring they met their duty of care to [the student], to other
students and to the staff in the school.
•
The Chairperson of the Board of Management stated that the board has full
confidence in the principal’s management and administration of the school,
including the accessing of relevant and available resources, the planned
upgrading of teachers skills from recognised support agencies, and in
accessing available professional support and advisory services in mediating a
relevant curriculum.
In arriving at its decision, the appeals committee took into account a range of issues,
including the following:
•
The oral and written submissions from the parties prior to the hearing.
•
The additional written submissions by [the mother] at the hearing and
accepted by all the parties.
•
The conflict in the submissions from the parties to this appeal as to the
quality of accommodation and general resourcing of the ASD and OT
accommodation in the school, the relevance and quality of support courses
engaged by teachers in upgrading relevant professional skills, the
appropriateness and relevance of the mediated curriculum, the effectiveness
and quality of school based evaluation in understanding and ameliorating
behavioural triggers for [the student], as well as the quality of human
resources and material resources available in the school.
•
Clarification of issues raised and details from the parties during the hearing.
At the conclusion of the hearing the appellant and the school representatives
confirmed they had a full and fair hearing.”
The challenge
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22. The decision of the appeals committee is challenged on four substantive grounds. The
first stated ground is that the committee erred in law and acted ultra vires their powers
under s. 29 of the Education Act, 1988.
23. The first substantive ground is that the committee was not entitled to decide the issue of
expulsion on the grounds that the board had adhered to any particular procedure or on
the basis that the “committee determined that the Board of Management’s decision was
reasonable”: rather that the respondents were bound themselves to take all matters into
account and decide if expulsion was warranted. Specifically, it is suggested that the
committee failed to have regard to its obligations in light of the decision of the Supreme
Court in St. Molaga’s.
24. Secondly, it is argued that the statement that the Chairperson of the Board of
Management had stated that the board had full confidence in the principal’s management
and administration of the school was extraneous and irrelevant.
25. Thirdly, it is said that the decision fails to set out the reasons for it. In particular, it is
argued that the list of a “range of issues” taken into account is not exhaustive, so that the
applicant has no way of knowing what other issues affected the decision.
26. Fourthly, it is said that the committee took into account matters which they were not
entitled to take into account, specifically “the conflict in the submissions from the
parties”. The committee, it is said, appears to have relied on the fact of the conflict,
rather than resolving such conflicts as may have existed. This, it is argued, was
irrational.
The answer
27. The statements of opposition of the respondents and the notice party are similar. The
chronology of events is admitted, but issue is taken with the applicant’s criticisms of the
facilities available in, and provided to the applicant by, the school. These matters are
said to be, in any event, irrelevant to the issues and not justiciable in the context of these
proceedings.
28. The issue before the committee is said to have been “whether the behaviour of the
applicant warranted the expulsion (as per Charleton J. in City of Waterford VEC v. The
Secretary General of the Department of Education and Science [2011] IEHC 278.) It is
said that the committee determined that issue in accordance with law.
29. All of the grounds of challenge are denied. In particular, the respondents plead that the
committee’s reliance on the adherence by the board of management to the Code of
Behaviour was material. The respondents and notice party rely on the fact that the
decision recites that the committee conducted a full hearing and refers to the decision of
the Supreme Court in St. Molaga’s as demonstrating that the committee was cognisant of
its duties and conducted the appeal and came to its decision in accordance with law.
30. The first four bullet points of the decision, it is said, make it clear that the committee
made its own findings in relation to the behaviour of the student. The uncontested
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finding by the committee, at the third bullet point, that it was accepted by all parties that
the student had engaged in unpredictable, aggressive and violent behaviours in school,
was a relevant and significant consideration.
31. The respondents and notice party point to the fact that the finding by the committee that
it accepted that the frequency of aggressive acts and the difficulty in identifying triggering
events constituted a real concern for the board of management is uncontested.
32. The reference in the fifth bullet point of the decision to the statement by the chairperson
of the board of management of full confidence in the principal, it is said, “must be seen in
the context of the issues raised in the appeal itself and in light of the other findings
made”. Alternatively, it is argued, the decision is correct on the basis of the matters
noted in the first four bullet points.
33. The decision of the committee is said to have been focussed on the correct issue, which
was whether the behaviours of the student, taken in the proper context, warranted his
expulsion and there was, it is said, no legal requirement to adjudicate on other issues
raised.
Legal principles
34. The starting point is the decision of the Supreme Court in Board of Management of St.
Molaga’s National School v. Secretary General of the Department of Education and
Science [2010] IESC 57. That was an appeal against a decision of the High Court
quashing two decisions of an appeals committee which, on appeals under s. 29 against a
refusal by the school to admit two pupils on the grounds that it was full, had examined
the capacity of the school and decided that the children should be admitted. The
Supreme Court gave judgment on the preliminary issue as to the scope of an appeal
under section 29. Denham J. (as she then was) in a judgment in which Murray C.J.,
Hardiman, Fennelly and Finnegan JJ. concurred, said: -
“25. [T]he appeals process [under s. 29 of the Education Act, 1988] enables the appeals
committee to have a full hearing on the matter and if so determined to replace its
judgment on the matter for that of the Board [of Management] and to make such
recommendations as it considers appropriate. Such a decision is anticipated as a
possible outcome of an appeal by the section itself, in the provisions enabling the
Secretary General to require a board to remedy a situation in accordance with the
recommendation of an appeals committee.
26. Thus the jurisdiction of an appeals committee is not limited to a review, for
example, of the lawfulness or reasonableness, of a decision of a board of
management.”
35. While St. Molaga’s was a case of refusal to enrol, the nature of the appeal is precisely the
same in a case of a permanent exclusion from a school.
36. City of Waterford VEC v. Secretary General of the Department of Education and Science
[2011] IEHC 278 was a judicial review of a decision of an appeals committee requiring a
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school to take back a boy which it had decided to expel. Charleton J. took the
opportunity to give guidance as to the exercise by an appeals committee of its function
under s. 29 in such a case but before doing so, clearly and succinctly set out the legal
principles applicable to a judicial review, generally.
“9. The legal principles applicable to a judicial review of this kind can be concisely
stated. The High Court, having a supervisory jurisdiction over administrative and
judicial tribunals, is not entitled to engage in a usurpation of any fact-finding power
which is conferred on these tribunals or to otherwise take on their function.
Instead, any decision as to the merits may only be reviewed, if of its nature, ‘[it] is
unreasonable in the sense that it plainly and unambiguously flies in the face of
fundamental reason and common sense’: see Meadows v. Minister for Justice
[2010] 2 IR 701 at 827 per Fennelly J.; see further Efe v. M.J.E.L.R. [2011] IEHC 214
, (Unreported, High Court, Hogan J., 7th June 2011) which comments on the
proportionality element of such an analysis. The detachment of the High Court
from the decision under review is emphasised by the inability of the High Court,
even on quashing the decision for that reason, to substitute its own view. Instead,
the decision must be returned to the appropriate tribunal so that it may be
considered afresh.”
37. In his judgment in City of Waterford VEC Charleton J. went on to summarise the law in
relation to denial of fair procedures and in the following paragraph he dealt with the need
for reasons:-
“12. Judicial and administrative tribunals should give reasons for their decisions. These
need not be elaborate. The reasons must be such, however, that the parties who
have participated in the hearing, with their background knowledge of what the
issues were, will be aware as to why the tribunal made its decision in one way or
another. … As well as construing any reasons given by a tribunal against the
background of the issues which were before it, the entirely of the decision should
be read on any subsequent judicial review. The High Court, in exercising its
jurisdiction and supervision of judicial and administrative tribunals, is not entitled to
take sentences in isolation from the entirety of a document recording the decision
or to parse particular sections of the decision so as to distort its meaning. In
O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at 76, Finlay C.J. put the test as to
construing the decision of a tribunal in this way: ‘[w]hat an intelligent person who
had taken part in the appeal or who had been appraised of the broad issues which
had arisen in it would understand from this document, these conditions, and these
reasons’. The degree to which the reasons for a decision have to be elaborated on
varies with the nature of the decision itself: F.P. v Minister for Justice [2002] 1 IR 164
at 172 to 173 per Hardiman J. Sometimes, in straightforward matters,
reasons may be terse. In difficult or technical matters, more than that may be
needed. Reasons are to be stated there and then, not added later upon challenge.
Where reasons stated within a written decision are shown to be manifestly flawed,
they cannot be supplemented by better reasons, or correct reasons, at any stage
Page 9 ⇓
after the decision is made. Sometimes evidence can be admitted to elucidate a
reason which is laconically expressed or, exceptionally, where a mistake occurs, to
correct a mistake. Elucidation, may, in guarded circumstances, be accepted but not
alteration; R. v. Westminster City Council, Ex Parte Ermakov [1966] 2 All ER 302.
13. Finally, a written decision may contain an error of law so as to undermine the
record. This is an issue which has become far less important in modern judicial
review proceedings”.
38. It is settled law that an administrative body must come to its decision by reference to all
matters which it is required to take into account, and ignoring anything that it is not
entitled to take into account.
McMahon J. in The State (Cork County Council) v. Fawsitt (Unreported, High Court,
McMahon J., 13th March, 1981) where it was said:-
“A court or tribunal exceeds its jurisdiction if it addresses itself to the wrong
question, takes irrelevant considerations into account or if it makes an order
without deciding the issues which it is required to decide before an Order can
validly be made.”
40. In Lynch v. Cooney [1982] I.R. 337 Henchy J. said:-
“It is to be presumed that, when Parliament conferred the power, it intended the
power to be exercised only in a manner that would be in conformity with the
Constitution and within the limitations of the power as they are to be gathered from
the statutory scheme or design. This means, among other things, not only that
the power must be exercised in good faith, but that the opinion or other subjective
conclusion set as a precondition for the valid exercise of the power must be reached
by a route that does not make the exercise unlawful - such as by misinterpreting
the law, or by misapplying it through taking into consideration irrelevant matters of
fact, or through ignoring relevant matters. Otherwise, the exercise of the power
will be held to be invalid for being ultra vires.”
41. In P&F. Sharpe Limited v. the Dublin City and County Manager [1989] I.R. 701 Finlay C.J.
said:-
“The practical consequences of that are that the decision-making authority must
have regard to all relevant and legitimate factors which are before it and must
disregard any irrelevant or illegitimate factor which might be advanced”.
authorities in relation to the assessment of the adequacy of reasons given in any
particular case and restated the key principles. For present purposes it is useful to
where it was said:-
Page 10 ⇓
“An administrative decision affecting the rights and obligations of persons should at
least disclose the essential rationale on foot of which the decision is taken. That
rationale should be patent from the terms of the decision or capable of being
inferred from its terms and its context.
Unless that is so then the constitutional right of access to the courts to have the
legality of an administrative decision judicially reviewed could be rendered either
pointless or so circumscribed as to be unacceptably ineffective.”
43. In City of Waterford VEC, as I have said, Charleton J. offered guidance as to the exercise
by appeals committee of its jurisdiction in hearing an appeal against a decision to
permanently exclude a student. Starting at para. 15 of his judgment he said:-
“15. The crucial issue is as to the jurisdiction of the appeals committee. In this regard I
note that the High Court has not previously given guidance as to the exercise of
this important function and it is hoped that this judgment will be of assistance in
the future.
16. The function of a school board in deciding on the expulsion of a pupil is to consider
what is relevant to that decision. This does not include whether other placements
may be available in the immediate area should the expulsion take place. Instead,
the decision focusses on the behaviour of the pupil and the context in which that
behaviour occurred. The appeals committee is in precisely the same position. The
issue before it, therefore, is whether the behaviour of the pupil, taken within the
proper context, warrants the expulsion. In the course of this judicial review, an
affidavit was sworn by a member of the appeals committee giving a reason for the
decision to overturn the expulsion of Delta Beta, which was otherwise absent from
the decision. This reason was that the behaviour of the pupil did not warrant
expulsion. It is clear that the law on administrative and judicial tribunals does not
encompass the addition of reasons beyond the document wherein the decision is
officially set out. Were such a procedure to be allowed, afterthoughts would
replace the reliability which the parties to a tribunal are entitled to expect that the
decision of any judicial or administrative tribunal will encompass.
17. As this is the first case of its kind to come before the High Court, it is therefore
appropriate to indicate what factors can be taken into account by a board of
management in considering an expulsion. These factors will be the same for the
appeals committee. In considering whether to require a student to leave a school,
it is appropriate to focus on the behaviour of the pupil and the effect of that
behaviour on the school; the track record of the pupil up to the point of the
precipitating issue or issues; the attempts by the school at diverting, correcting or
checking the behaviour; the merits of whatever mitigation is offered for the
behaviour (by which I mean contrition, any explanation that is offered for
behaviour, and any response of the pupil to the school’s efforts); and the demerits
of mitigation (by which I mean a lack of contrition, wilfulness, spite or an
unwillingness to accept help). What a school board, and thus what an appeals
Page 11 ⇓
committee, cannot take into account are the alternatives which the education
welfare officer may be in a position to offer; the resources of the school; and
external resources. It is worth emphasising that on appeal the appeals committee
is concerned with whether or not the expulsion was warranted. This has nothing to
do with whether there is an alternative place. The responsibility for that function is
elsewhere. These are separate and distinct statutory functions. It would be wrong
for an appeals committee not to grant an appeal where, in the first instance, the
expulsion of the pupil was not warranted, simply because the pupil has an
alternative place in education available to him or her and thus does not want to go
back to the school. Equally, the appeals committee cannot grant an appeal
because the pupil does not have an alternative place.”
44. S.C. (A minor) v. Secretary General of the Department of Education and Skills
[2017] IEHC 847 was a judicial review of a decision of a s. 29 appeals committee refusing an
appeal of a fourteen-year-old boy against a decision of the school to permanently exclude
him for smoking cannabis. In a comprehensive judgment, Ní Raifteartaigh J. considered
a wide range of complaints in relation to the process by which the boy had come to be
expelled, one of which was whether the appeals committee had, or whether its decision
showed that it had, conducted a full rehearing. The boy had admitted to smoking a
cannabis joint but contested that he had done so on school grounds. The conclusion of
a board of management hearing was that he had smoked the joint on school grounds, and
he was expelled. The first reason given by the appeals committee for refusing his appeal
was:-
“The Board of Management accepted that, following investigation, it was
established that S.C. had been using drugs within the school environment during
school time. This was the main reason why he was expelled.”
45. The decision in that case, as in this, recited that the committee had conducted a
rehearing and re-examined the issues involved but Ní Raifteartaigh J. was not satisfied
that it had. She said:-
“53. Taking all of the above into account, I am not convinced that the decision-making
on the factual issue undertaken by the committee clearly fell within the model of a
proper de novo hearing as described by Clarke J. in [Fitzgibbon v. Law Society of
Ireland [2016] 2 I.L.R.M. 202]. The decision of the appeals committee does not
clearly separate itself from the first instance decision by the board of management;
it could not be said, using the language of Clarke J. in Fitzgibbon, that the
committee had treated the board’s decision as irrelevant. On the contrary, it seems
to have considered the board’s decision to be highly material to its own decision.
The language used in the decision suggests that there was an inter-relationship
between the committee’s own decision and that of the board of management,
whereas its own decision should have been wholly independent.”
46. At para. 58 of her judgment Ní Raifteartaigh J. added:
Page 12 ⇓
“I wish to add that, in my view, it would be helpful if an appeals committee were to
use language more generally throughout its decision which makes it clear that it is
making its own findings and not relying on board of management findings, and
which makes it clear that it appreciates that the central issue before the committee
is not whether the board followed its policy based on findings it (the board) had
made but, more directly, whether the committee itself thinks the child should be
expelled, based upon facts found by the committee itself, and taking into account
the matters set out by Charleton J. in the Waterford VEC case. As set out above,
Charleton J. listed a large number of factors which should be considered, including
those which weigh in favour of the child remaining in a school as well as the factors
weighing in favour of expulsion. To these, I might add the age of the child; it
seems to me that the maturity of a child of 13 or 14 is rather different from a child
of 16 or 17, and this should also be factored into a consideration of whether the
expulsion of a child is warranted. Further, the school’s own policy on expulsion
contains a comprehensive list of matters to which regard should be had and makes
it clear that expulsion is effectively a remedy of last resort.”
Discussion
47. The issue on every s. 29 appeal against a decision to permanently exclude a child will be
whether the child should be permanently excluded. The conclusion of the appeals
committee as to whether the child should or should not be permanently excluded may be
the same as, or the converse of, the decision appealed against, but this does not
necessarily mean that the original decision was right or wrong, or reasonable or
unreasonable. It is easy to contemplate situations in which an appeals committee might
form a view as to whether the decision appealed against was right or wrong and it is not
objectionable in principle, I think, for the appeals committee, in an appropriate case, to
express a view as to whether the decision of the school was right or wrong: but always on
condition that it should first clearly make and reason its own decision of the substantive
issue.
48. Because the appeal will have been heard on the basis of a de novo hearing, the appeals
committee may have had evidence that was not adduced to the board of management, or
the committee may have had an explanation or clarification of the evidence that may not
have emerged in the course of the board of management hearing. So, for example,
there may have been confusion at the hearing before the board of management, which
might by new evidence or explanation have been dispelled at the appeals committee
hearing, as to whether the place at which a pupil had admittedly smoked a cannabis joint
was within or outside the school grounds. If the appeals committee comes to the
opposite conclusion to the board of management, it does not follow that the decision of
the board of management was wrong. In principle, different decisions based on different
evidence may both be correct.
49. I do not understand Fitzgibbon or S.C. (A minor) to require that the decision of the
appeals committee should not refer to the decision appealed against. In circumstances
in which the same issue is being considered afresh, it may often be useful to explain why
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the conclusion is different – in the example, that it was demonstrated to the appeals
committee but had not been to the board of management, that the offence occurred
outside school grounds - but the decision of the appeals committee should first and
foremost clearly show that it is separate from the decision of the board of management.
50. There are two elements to the applicant’s first substantive ground. The first (by way of
challenge to the first bullet pointed reason) is that the respondents were not entitled to
decide the issue on the basis that the school had adhered to any particular procedure,
and the second (by way of challenge to the second bullet pointed reason) that they were
not entitled to decide the appeal on the basis that the decision of the board of
management was “reasonable”.
51. I am very much alive to the dangers of parsing or overanalysing and of imposing
unreasonably high expectations on the decision of a panel which is expert in the field in
which it is operating but not expected to be expert in law. Mr. Feichín McDonagh S.C.,
for the applicant, argues that it is at best irrelevant whether the school adhered to its own
Code of Behaviour. Mr. Conor Power S.C., for the respondents, argues that this is
something which the committee is obliged to do.
52. The Procedures for Hearing and Determining Appeals under Section 29 of the Education
Act, 1998 issued by the Minister require the appeals committee to have due regard to the
established practices within the school for dealing with issues/grievances the subject
matter of the appeal, including, where relevant and available, any statutory or non-
statutory procedures, guidelines, regulations or other provisions in operation at any time.
It seems to me that the substance of this finding was that there had been adherence to
the school’s Code of Behaviour, and that this was a matter which the appeals committee
was entitled to, and obliged to, take into account.
53. One of the arguments made in S.C. (A minor) was that a breach of fair procedures at the
hearing by the board of management had tainted the conduct of the appeal, and so, the
decision of the appeals committee. Ní Raifteartaigh J. did not decide that issue, but it
seems to me that in principle an appeals committee is entitled to form a view as to
whether the procedural requirements of a code of behaviour were complied with. While
the appeals committee must unquestionably make its own assessment and reach its own
conclusion, the conduct of the board of management hearing may go to the reliability or
consistency of the case made by the student or the school on the appeal.
54. On one view, counsel for the applicant and the respondents may have been at cross
purposes. The applicant’s argument was that the committee was not entitled to decide
the issue of expulsion on the ground that the board had adhered to the school’s code of
behaviour. That is correct. But it does not necessarily follow that the committee is not
entitled to take account of whether it did or did not. In S.C. (A minor) Ní Raifteartaigh J.
said that the central issue on a s. 29 appeal is not whether the board followed its policy
based on the findings which it, the board, had made, but that observation was directed to
the nature of the appeal and the significance attached by the appeals committee to the
mere fact that the board had followed its policy. I do not believe that a consideration of
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whether the board followed a policy is necessarily inconsistent with the conduct of a fresh
assessment of the issue as to whether the student should be expelled.
55. The lynch pin of the applicant’s case is that the committee’s finding that the decision of
the board of management was “reasonable” showed that it applied the wrong test, and
certainly failed to show that it had applied the correct test. Mr. Power, while standing
over the decision as a whole, acknowledges that this point “might have been phrased
better” .
56. It seems to me that the problem with this stated reason goes beyond ambiguity or
infelicity of language. In St. Molaga’s the High Court found that the function of an
appeals committee was limited to assessing whether the decision of the board of
management had been reasonable. The Supreme Court found that that was the wrong
test. The issue which the appeals committee had to decide was whether the boy should
be permanently excluded from the school. It was irrelevant whether the decision of the
board of management was right or wrong, or reasonable or unreasonable. I acknowledge
that I am not to take a word or phrase out of the context of the decision as a whole, but I
cannot find elsewhere in the decision anything to indicate that the committee went
beyond a consideration of the reasonableness of the board’s decision.
57. It is true that the committee referred in the second bullet point to the assaults and
aggressive behaviours, which, at the third bullet point were correctly noted not to have
been in controversy, but the substance of the assessment appears to have been whether
these matters justified the decision of the board of management, rather than whether
they justified the expulsion of the applicant. I am fortified in this conclusion by the
reference at the fourth bullet point to the conclusion of the committee that the boy’s
behaviour constituted a real concern for the board in ensuring that it met its duties of
care, rather than that the behaviour gave rise to real concern in the minds of the
committee for the safety of the boy, the other students and staff.
58. As to the nature of the appeal which was conducted by the respondents, I find no comfort
in the reference in the decision to the judgment of the Supreme Court in St. Molaga’s, or
in the recital that the committee had conducted a full hearing of the matter under appeal.
It seems to me that the reference to “the matter under appeal” does not disclose what
the committee thought was the subject of the appeal: whether it was the correctness or
reasonableness of the decision of the board of management, which of course it was not,
or whether it was whether the applicant should be permanently excluded from the school,
which it should have been. Similarly, I do not find in the statement that the committee
had conducted a full hearing any comfort that it had reached its own conclusion on the
substance of the correct issue.
59. Mr. McDonagh argued that the reason given at the third bullet point, that it was common
case that the boy had engaged in unpredictable aggressive and violent behaviours on
occasion was “neutral”. I cannot accept that. The issue before the committee was
whether there was a problem with behaviour such as warranted the applicant’s
permanent exclusion from school. The starting point was whether the applicant’s
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behaviour was a problem and the committee was entitled to note that there was no issue
as to the nature of the behaviour. If there had been an issue as to the fact, or nature, or
predictability of the behaviour, the committee would have been obliged to resolve it, and
the decision quite properly disclosed that there was no such issue.
60. The difficulty with the reason given in the fifth bullet point was recognised in the
respondents’ opposition papers. The grounds of opposition appealed, generally, to the
context of the issues raised by the appeal and the light of the other findings made, and
pleaded in the alternative that if there was anything wrong with this reason, it did not
taint the decision. Mr. Power, in the course of the hearing, was driven back to arguing
that it was “not the most directly relevant finding”, and could be severed from the first
four reasons.
61. What it set out at the fifth bullet point of the decision under review is stated to be a
reason for not upholding the appeal. Inferentially, I suppose, it conveys an acceptance
by the appeals committee that the board has full confidence in the principal’s
management and administration of the school, but it does not disclose that the committee
has applied itself to that question.
62. In the list of issues taken into account by the committee in arriving at its decision, the
committee noted the conflict in the submissions as to the quality of accommodation and
general resourcing of the ASD and OT accommodation in the school, the human and
material resources in the school generally, the training of the teachers, and the
effectiveness and quality of the school’s evaluation in understanding and ameliorating the
triggers for the applicant’s behaviour but it did not address or attempt to resolve that
conflict. In the grounds of opposition and supporting affidavits, the respondents seek to
make the case that having regard to the agreed and incontrovertible facts, it was
unnecessary to resolve the conflict.
63. The issue before a s. 29 appeals committee, as identified by Charleton J. in City of
Waterford VEC is whether the behaviour of the pupil, taken within the proper context,
warrants the expulsion. Among the factors to be taken into account are the attempts by
the school at diverting, correcting or checking the behaviour. In a case such as this,
where the cause of the challenging behaviour is disability, there may be a tension
between the requirement to take these factors into account and the requirement to
disregard the resources of the school.
64. In fighting her son’s proposed exclusion from school, the case made by the mother was
very critical of the school, the management and the staff. The thrust of the mother’s
case was that more could and should have been done. The school engaged with the
mother’s case, arguing that all that could have been done had been done. On the
authority of City of Waterford VEC, the focus is to be on the behaviour of the student and
the effect of that behaviour on the school. Certainly, the behaviour is to be looked at in
the proper context, which in the case of a child with a disability will include the disability
and the capacity of the child to control or modify the behaviour. A consideration of the
context does not, however, extend to an enquiry into the quality of the services available
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in the school or any alleged responsibility of the school for the behaviour, or any alleged
contribution to the problem by reference to any alleged deficiency in the services
provided. The focus on the enquiry must be on the behaviour of the pupil, the effect of
that behaviour on the school, and the likelihood of repetition. In the case of a child with
a significant disability, there will be no issue as to the responsibility of the child. Neither,
in my view, it is relevant to consider the cause of behaviour that is assessed to be a risk
to health and safety in the school.
65. While the focus of the mother’s case was, mistakenly, on whether more could or should
have been done for her son, I think that it also raised the issue as to whether there was
anything that might be done to divert, correct or anticipate the applicant’s aggressive
outbursts. That this was an issue which the committee should have looked at.
66. There plainly was, as the decision acknowledged, a sharp conflict in the submissions as to
a range of issues. The committee might have resolved those conflicts one way or the
other or it might have taken the view that it did not need to resolve the conflict, but it did
neither. I do not see how the fact of the conflict could have been a material
consideration in coming to a decision, and it seems to me that the committee’s statement
that it had taken the conflict into account necessarily conveys that it did not take the view
that it was unnecessary to resolve it.
67. The respondents and notice party, in the grounds of opposition and in argument, seek to
make the case that the decision was based on the behavioural difficulties of the applicant
and that there was no legal requirement to adjudicate on the other issues raised. In my
view there are two problems with this approach. In the first place, the decision on its
face says that the committee took into account the fact of the conflict. That conveys that
the committee thought that the fact of the conflict was relevant. Secondly, the
committee did not resolve the conflict and the decision did not say that it was not
necessary to do so. It seems to me that the argument which the respondents would
now advance, that it was unnecessary to resolve that conflict to decide the appeal, is an
attempt to introduce a new reason for the decision, which falls foul of the Ermakov
principle.
68. The focus of the grounds of opposition and argument is that the exclusion was warranted
by an application of the guidance given by Charleton J. in City of Waterford VEC. That
was undoubtedly the issue before the appeals committee, but the written decision of 10th
June, 2019 does not show that the committee understood that that was the issue, or
decided it.
69. Having given in the five bullet points which I have analysed the reasons for its decision,
the appeals committee went on to list four issues which it had taken into account in
arriving at its decision. Mr. McDonagh suggests that the decision is based on a template
which, by reference to the appeal committee decision quoted in S.C. (A minor), rather
appears to be so. In principle, I see nothing wrong with templates which direct the
attention of administrative decision makers to the legal principles and tests to be applied
and to issues which are likely to arise, but a recital of the correct test will not save a
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decision which does not show that it has been applied. For the reasons given, I do not
believe that the recital in the decision under review clearly identifies what the correct
approach to the appeal was.
70. I referred earlier in my judgment to the principles (a) that the decision-making authority
must have regard to all relevant and legitimate factors which are before it and must
disregard any irrelevant or illegitimate factor which might be advanced and (b) that the
reasons must disclose the essential rationale on foot of which the decision is taken.
71. Mr. McDonagh argues that the list of issues taken into account is non-exhaustive, so that
the applicant has no way of knowing what other issues affected the decision. Mr. Power
accepts that the wording of the decision is “unhappy”. It seems to me that the
applicant’s criticism is well-founded and that a template, if such it is, that calls for a non-
exhaustive list of factors which have been taken into consideration is a siren which will
inevitably bring the decision maker onto the rocks. If it were possible, it would be
impermissible for the court to speculate as to what issues other than those stated might
have been taken into account; what issues among, or in addition to, those listed might
have been clarified during the hearing; or what details, mentioned or not mentioned in
the decision, might have been elicited from the parties during the hearing. The decision
leaves open the possibility of all three.
72. The applicant argues that the committee took into account the fact of the conflict between
the parties as to the resources available in the school, the resources made available to
the applicant, and the quality of the evaluation in understanding and ameliorating the
behavioural triggers. The fact of those conflicts, it is said, was irrelevant and to have
taken the conflict into account was irrational. The respondents counter that the decision
simply notes that the arguments were made, and that those arguments did not alter the
decision.
73. Again, it seems to me that the applicant is correct. The decision did not simply note
that arguments were made, it noted that conflicting arguments were made, and it says
that the conflict was taken into account in reaching the decision. Specifically, it does not
say that the committee took the view that the issues were irrelevant to the decision it had
to make, or that it was not necessary to resolve the conflict to reach a decision.
Conclusions
74. In substance and in terms the decision of the appeals committee of 10th June, 2019 was
that the decision of the board of management to permanently exclude the applicant was
reasonable. That was the wrong test. The committee ought to have considered and
decided whether, in its view, the exclusion of the applicant from school was warranted.
75. The list of issues taken into account was stated to be non-exhaustive. This necessarily
conveyed that other issues had been taken into account. This has the effect that it is
impossible to say what considerations the committee took into account, or that the
committee did not take irrelevant considerations into account.
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76. The fact that the board of management had full confidence in the principal was an
irrelevant consideration.
77. The fact that there was a conflict between the mother and the school as to the quality and
availability of resources and the ability of the school to understand, anticipate and
ameliorate the applicant’s behaviour was not a relevant consideration.
78. The respondents might have decided that it was unnecessary to resolve some or all of the
contested issues: but it did not.
79. The respondents are not entitled, in answer to an application by way of judicial review, to
make the case that it was unnecessary to resolve the conflict or otherwise to supplement
the reasons given in their written decision.
80. For these reasons I am satisfied that the decision of the second to fourth respondents of
10th June, 2019 must be quashed and the applicant’s appeal remitted to be heard by a
newly constituted committee in accordance with law.