Ali v Lord Grey School [2004] EWCA Civ 382

Case No A2/2003/1548[2004] EWCA Civ 382
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(STANLEY BURNTON J)
Venue Royal Courts of JusticeDate Monday 29 March 2004
Strand,
London, WC2A 2LL
Before
THE PRESIDENTLORD JUSTICE CLARKELORD JUSTICE SEDLEY
Between
ABDUL HAKIM ALIAppellantTHE HEAD TEACHER and GOVERNORS of LORD GREY SCHOOLRespondents
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Cherie Booth QC and Carolyn Hamilton (instructed by The Children’s Legal Centre) for AppellantJonathan Moffett (instructed by Borough Solicitor, Bracknell Forest Borough Council ) for Respondent
JudgmentLord Justice Sedley :The issue
[1]If a state school unlawfully excludes a pupil who is on its roll, or excludes a pupil who has been unlawfully removed from its roll, has it violated his right to education under the European Convention on Human Rights; and if it has, are the headteacher and governing body liable under the Human Rights Act 1998 to pay him damages?[2]School exclusions are a serious matter. A disturbingly high proportion of the prison population has begun by being excluded from school. But a refractory pupil can disrupt the education of others and make teachers' work impossible. Legislation, guidance and case-law have sought in recent years to keep a workable balance between justice to pupils in trouble and justice to the school as a functioning unit. That is one aspect of the present case.

The structure of state education

[3]The other aspect is that, while it is the state which both domestically and internationally bears the obligation to provide universal education, the law of England and Wales does not know the state as a legal entity. Centrally, the core functions of the state are performed by individuals in the name of the Crown, which since the Crown Proceedings Act 1947 has been able to be sued (as it always could be in Scotland) as if it were a legal person. Locally, the functions of the state have for centuries been discharged by a variety of corporations or boards, local authorities prominent among them. Other layers (agencies, quangos, trusts) now complicate the pattern but do not matter to the present case.[4]It is the central state which by longstanding policy and more recently by international obligation has undertaken the provision of education. Today, s.10 of the Education Act 1996 places on the Secretary of State the general duty of promoting the education of the people of England and Wales. For largely historical reasons the obligation has, since the Education Act 1944, been discharged through local authorities; but in more recent years many of the educational powers and duties of local authorities have been transferred to schools in the interests of greater local autonomy.[5]The state school, however, is neither an emanation of the Crown nor ordinarily a corporate entity. It is described in the 1996 Act as an educational institution (see s.4(1)) but as an institution it has no legal personality. In the case of a community school, a voluntary controlled school or a community special school, its teachers, including the headteacher, are employed and dismissable by the local education authority, which (being by s.12 a designated local authority) does have corporate status.

The LEA's duties

[6]Sections 13 to 18 spell out the functions of LEAs in providing nursery, primary and secondary education for their areas, including a duty to ensure that the areas contain sufficient schools of appropriate kinds (s.14). Relevantly to the present case, s.19(1) as amended provides:
“Each local education authority shall make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”
In other words, it is the LEA's obligation to ensure that no child falls out of the education system, even if excluded from school. The content of this duty is amplified by the provision of subsection (5) that any such child continues to be a pupil for all statutory purposes; by the provision of subsection (6) that 'suitable education' means efficient education suitable to the pupil's age, ability and aptitude; by Circular 11/99 which requires LEAs to ensure that temporarily excluded pupils are reintegrated where possible and educated meanwhile; and by Circular 10/99, which reminds LEAs that the obligation to provide for the education of permanently excluded pupils reverts to them. The school's duties[7]The school of which the present respondents are respectively the headteacher and the governing body is a foundation school, one of the five types of maintained school now contained within the state system: School Standards and Framework Act 1998 (hereafter SSFA), s. 20. The duty to maintain the school rests on the LEA (SSFA, s.22). By SSFA s.36 every maintained school is to have a governing body, to which the section accords corporate status and which is made responsible for the conduct of the school (s.38) and its budget (ss. 49, 50).[8]The legislation does not create the office of headteacher: it assumes its existence. Thus SSFA s.61(1) requires the governing body to ensure that policies designed to promote good behaviour and discipline are pursued at the school, and subsections (4) and (6) allocate to the headteacher the making and implementation of rules to implement the governors' policies. This division of responsibility is elaborated in paragraphs 4 and 5 of the Education (School Government) (Terms of Reference) Regulations 2000, which give the governing body "a largely strategic role" and make the headteacher responsible for "the internal organisation, management and control of the school". By s.579(1) of the Education Act 1996 "headteacher" includes an acting headteacher.[9]By SSFA s.68 (repealed as from 20 January 2003), both the headteacher and the governing body of a maintained school were required, in discharging their functions in relation to the exclusion of pupils, to have regard to any guidance given by the Secretary of State. In the present case this includes the two circulars referred to in paragraph 6 above. The detail of the school's disciplinary powers and related functions is spelt out in the provisions set out later in this judgment.

Events

[10]The careful judgment of Stanley Burnton J [2003] EWHC 1533 (QB), [2003] 4 All ER 1317 makes it possible to set out the material facts shortly for present purposes.[11]Lord Grey School is a larger-than-average comprehensive school specialising in modern languages. Its headteacher is Ms Despina Pavlou. The local education authority is Milton Keynes Council.[12]A was born on 21 April 1987 and so was 14 on 8 March 2001 when a fire was deliberately started in a room during the lunch hour. A, who admitted being present, was among the three pupils suspected of being responsible for it and excluded without any term being set. On 29 March they were all charged with arson. On 19 June the proceedings before the magistrates were discontinued for want of sufficient evidence.[13]The headteacher, who had been away on the date of the fire, had next day endorsed the deputy head's decision that the boys should stay away from school until it was known what the police were going to do. It was, however, not until 21 March that she wrote to A's parents to notify them that she was excluding A until the end of term, 5 April. Then on 25 April the deputy head wrote to A's parents, further excluding him until 15 May (the day after his SATS examinations). The letters did not give the legally requisite information about the right of access to the governing body.[14]During the whole of this time self-assessed revision work in English, mathematics and science was provided for A to do at home, and he was permitted to return to school between 8 and 14 May to sit the examinations (which he passed), but for no other purpose.[15]On 4 May the school completed a form referring A to the LEA, giving the date of referral as 25 May. The entry on the form explained that a court appearance was pending, and continued:
"Referral to Access Panel is requested as the Headteacher is not willing to negotiate transfer to another school at this stage given the circumstances and severity of the incident. If [A] is deemed to be innocent then the Headteacher will be willing to negotiate integration at that stage."
[16]On 25 May the school wrote to A's parents to say that he was excluded for a further 20 days as from 14 May - that is, counting only school days, until 15 June. The letter went on:
"We will continue to set work as appropriate and would ask that you make contact with the school to arrange it."
This, evidently, did not happen. Again, proper information about access to the governing body was not given.[17]The legal maximum period of 45 days for a fixed-term exclusion expired on 6 June. On that date the school sent the referral form to the LEA. An accompanying letter said that the headteacher would prefer the boys to be referred to the access panel rather than to other schools, and that the school would be happy to discuss reintegration once the court case was over.[18]On 19 June, when the proceedings were discontinued, A and his brother went from the magistrates' court to the school to ask for his reinstatement. The headteacher said that she would arrange it as soon as she had written confirmation of the court's decision. When at the end of June she received official notification that the proceedings had been discontinued, she wrote to A's parents convening a "reintegration" meeting for 13 July. Neither A nor his family attended. The judge, deciding a heavily contested evidential issue in favour of the defendants, concluded that it was because A and his family had chosen to stay away from the meeting.[19]Later on 13 July the headteacher wrote a letter which began:
"Following your failure to appear at the meeting organised this morning … I am removing [A] from our school roll …"
. The judge was understandably sceptical of the explanation that the letter was designed to precipitate A's return to the school. It was copied to the governors, but they took no action on it. A, however, was not removed from the school roll until an uncertain date after 7 September 2001 (counsel for the respondents tells us that it can be located in mid-October but that no precise date can be found).[20]It was not until 6 November 2001 that A's father wrote asking for him to be reinstated. The school refused. In January 2002 he was enrolled at another secondary school, where at the time of the Queen's Bench hearing he was due to sit ten or eleven GCSE subjects. It followed, as the judge found, that A was without schooling from 8 March 2001 to 21 January 2002.[21]The LEA's access panel had met on 19 June, not knowing that the proceedings were being discontinued, and had recommended recourse to a pupil referral unit pending a resolution. At the end of September, when A was evidently still on the roll of Lord Grey, the LEA's education welfare service completed a notification of absence, giving A's school as "None / Ex-Lord Grey". A week later the LEA wrote to the headteacher "We understand that [A] is still in Bangladesh, so a place is not required for him at present." This was simply wrong. From the third week of October the LEA set seriously about trying to get A back into formal education. The family made it clear that they wanted A to return to Lord Grey, but an internal memorandum written by the headteacher on 6 November says "No! …there is no way he is coming back."[22]Although the headteacher had duly notified the governing body of the exclusion, at no stage did the governors consider reinstating A as they were required by law to do. It was not until 21 January 2002 that A was able to start in a new school. There, we understand, he is doing well and will be sitting A-levels.[23]It will be convenient to consider the legal consequences of this sequence of events in the following phases: Phase 1: 9 March (informal exclusion) to 21 March (formal exclusion) Phase 2: 22 March to 14 May (end of SATS examinations) Phase 3: 15 May to 6 June (end of the 45-day period) Phase 4: 7 June to 13 July (meeting at school) Phase 5: 14 July to mid-October (removal from school roll) Phase 6: mid-October to 21 January (enrolment at new school).

The proceedings

[24]The action was brought on A's behalf by the Children's Legal Centre, to which the Citizens' Advice Bureau had wisely referred the family. It was brought in the county court, claiming damages for the unlawful exclusion of A and his unlawful removal from the school roll, resulting in the denial of his right to education under the Act and Convention. The defendants were the present respondents. The LEA was not joined by either party.[25]Following transfer to the High Court, the action came on before Stanley Burnton J on liability alone. He held(a) that the initial exclusion was unlawful, having been neither permanent nor for a fixed period: "an indefinite temporary exclusion is not known to the law";(b) that while the fixed periods of exclusion which followed from 21 March to 13 July had been reasonable in the prevailing circumstances, there had been a failure to notify A or his parents of the right to make representations about his exclusion to the governing body and the way to do it;(c) that the governors, who had been duly notified of the exclusion, had failed in their independent duty to consider the exclusion at (if requested) an oral hearing and in any event to consider reinstating A;(d) that the exclusion had become unlawful at the expiry of 45 days on 6 June in the absence of any lawful decision from that point either to exclude A for good or to permit him to return;(e) that the continuing exclusion of A after 13 July was neither lawful nor reasonable;(f) that his eventual removal from the school roll was unlawful because of the failure to make reasonable enquiry to locate A before deciding to remove him.[26]"These failures of the school and the LEA," the judge said (para. 106), "to observe the requirements of the relevant statutes and regulations disclose a regrettable ignorance of those requirements. They could and should have been challenged at the time."[27]The judge's ultimate decision, however, was that in respect of both main periods of exclusion the claim for damages failed. Early in his judgment he ruled out articles 6 and 14 of the Convention, leaving article 2 of the First Protocol as the sole Convention right in play.[28]In relation to A's exclusion up to and including 13 July 2001 he found that "apart from the failure to comply with its statutory obligations, the school's decision to exclude the Claimant until the termination of the prosecution and then until a reintegration meeting could be held was sensible and reasonable, and in my judgment does not give rise to liability for breach of article 2 of the First Protocol" (para.106).[29]In relation to the second period, from 13 July, he held:
“107 .In the circumstances, the only defence to the claim for damages for breach of Article 2 of the First Protocol is that appropriate educational facilities were nonetheless available to the Claimant but that either he chose not to avail himself of them or that the responsibility for the missed period of education was that of the LEA. 108. LEA had undertaken responsibility for the Claimant’s education as a result of his exclusion. That responsibility arose under section 19(1) of the 1996 Act. It may be that the words “by reason of … exclusion from school” should be read as referring to a lawful exclusion (although this would be contrary to the general rule that an unlawful administrative action is valid and effective unless and until it is quashed), but if so an unlawful exclusion is in my judgment within the expression “or otherwise”
. The LEA did not provide tuition for the Claimant because, as I have found, the family declined the offer of tuition. It follows that the school was not the cause of the Claimant’s lack of suitable education between the 13 July and the end of the summer term. 109. The cause of the Claimant’s lack of schooling or education during the autumn of 2001 is more complex to ascertain. There is no explanation for the family’s failure to contact Mr Read or Jennifer Gurney [of the LEA], who were referred to in Ms Pavlou’s letter of 13 July, until October. In addition, I find that until early November 2001 he and his family were uncertain whether they wanted him to return to The Lord Grey School: see, e.g., Mr Read’s letter of 22 October. If that uncertainty was the result of the school’s unreasonable or unlawful actions, it might be responsible for it. However, I have no evidence from the family as to whether it was caused by, for example, Ms Pavlou’s letter of 13 July, or resulted from the fact that the Claimant had been accused of involvement in arson. Basit’s [A’s brother’s] evidence, that at the meeting with Tim Read the family expressed their wish that [A] should return to The Lord Grey School, is inconsistent with Mr Read’s letter and his evidence, and I reject it. 110. Furthermore, nothing had occurred to bring to an end the LEA’s responsibility for the Claimant’s education under section 19(1) of the 1996 Act. Although Mr Read said that he was unaware, during the autumn of 2001, that the Claimant was out of school, he and Ms Gurney and Mrs Barby had all been copied into the letter of 13 July 2001, from which it was apparent that he had not returned to The Lord Grey School, so that the section applied. It was the LEA’s responsibility to provide suitable education for him. 111. It follows that there were educational facilities available to the Claimant. The evidence, which consists only of the cross-examination of Mr Read, does not justify a finding that if the Claimant had sought access to the tuition services of the Manor Road PRU, they would have been inadequate. Moreover, it must be the case that if the family had made contact with Mr Read (or, presumably, Ms Gurney) soon after receipt of Ms Pavlou’s letter of 13 July 2001, the Claimant would have been admitted to another school much earlier, and possibly in time for the beginning of the autumn term. 112. In these circumstances, the Claimant has not proved that his lack of schooling in the autumn, prior to his father’s letter of 6 November 2001, was caused by the school. 113. After the school had refused to permit the Claimant to return, on the ground that its roll was full, it continued to be the responsibility of the LEA (who were notified of the refusal by copy of the letter of 14 November 2001) to provide tuition pending the Claimant’s admission to an alternative school. 114. It follows that, although the decisions to exclude the Claimant and to remove him from the roll were unlawful, and could have been challenged by judicial review, they did not give rise to a liability in damages for breach of his rights under Article 2 of the First Protocol.” ”

This appeal

[30]The judge refused permission to appeal, taking the view that while significant issues of law were raised by the case, the factual complications were such that it was this court which should decide whether it was apt for appeal. On a reading of the papers when application was made to this court, it appeared to me that even if the contested factual issues and their immediate legal consequences were kept where the judge had left them there remained triable and important questions of law. These, however, needed to be specifically addressed, and I asked for a fresh skeleton argument from the claimant and a response from the defendants showing cause why permission to appeal on these questions should not be granted. Having considered the helpful submissions which came in response, I granted permission to appeal on the issue whether the failure to readmit A to the school when he was still on its roll and no longer excluded was a violation of a Convention right in the precise form afforded by domestic law, and if so, whether it sounded in damages.[31]No notice was given of intention to renew any other aspect of the permission application. No cross-appeal was intimated on the judge's conclusions of law insofar as they were against the respondents. But on reconsideration it was evident from what is set out earlier in this judgment that the issues of law arising from the decision below could not properly be limited to the issue set out in my grant of permission. The parties were accordingly told three days before this hearing that the court wished to hear argument on the human rights issues arising out of each of the situations considered by the judge from 8 March 2001 to 21 January 2002. All of these had in fact been addressed in the skeleton arguments which preceded my grant of permission to appeal.[32]In granting permission to appeal I directed that the local education authority be given notice of the appeal. This has been done, and they have elected to take no part. The defendants, however, have served a respondent's notice asserting, in short, that any obligation of which the state may have been in breach rested not on the school but (in particular by virtue of s.19 of the Education Act 1996) on the local education authority.[33]The questions on which the parties have been asked to address the court are these:a. A. Is A entitled to damages under s.8 of the Human Rights Act 1998 for i. having been reasonably but unlawfully excluded from the school between 8 March and 13 July 2001; ii. having been unreasonably and unlawfully excluded from the school from 14 July 2001 to 20 January 2002; or iii. having been excluded from the school until mid-October 2001 when he was removed, albeit unlawfully, from the school roll?b. B. If the answer to any of the above is positive, against whom does the claim lie? In particular, is the allocation of liability affected by A's removal from the school roll and, if so, what is the effect of its having been done unlawfully? Absence and exclusion from school[34]The law and guidance governing school exclusions at the material time, within the statutory framework set out above, can be taken directly from Stanley Burnton J's survey of it. “57. Parents of children of compulsory school age are under a duty to secure their suitable and efficient full-time education either by regular attendance at school or otherwise: section 7. If he is a registered pupil at a school, it is their duty to cause him to attend regularly: section 444(1). However, by subsection (3), a child shall not be taken to have failed to attend regularly by reason of his absence from the school- “(a) with leave; (b) at any time when he was prevented from attending by reasons of sickness or any unavoidable cause.”58. Leave of absence is the subject of the Education (Pupil Registration) Regulations 1995. Regulation 7 relates to the keeping of an attendance register, in which must be recorded the presence or absence of every pupil, and in the case of an absence, whether or not it is authorised. In the case of a pupil who is not a boarder, regulation 7(3) provides that an absence is to be treated as authorised for the purposes of that regulation if – “(a) he has been granted leave of absence in accordance with Regulation 8; (b) he is unable to attend – (i) by reason of sickness or any unavoidable cause; …”59. Regulation 8 provides that leave of absence may only be granted by a person authorised on their behalf by the proprietor of the school. In the present case, the proprietors were the school governors; the person who was authorised to give leave of absence was the head teacher. There are restrictions on the granting of leave of absence for the purposes of enabling a pupil to undertake employment, or to go away on holiday, but otherwise the purpose of leave of absence is unspecified.60. Removal from the school roll (i.e., deletion from the admission register of the school) is the subject of regulation 9. It prescribes the grounds on which the name of a pupil of compulsory school age must be deleted from the admission register.

(g) :

“That (the pupil) has been continuously absent from school for a period of not less than 4 weeks and both the proprietor of the school and the Local Education Authority have failed, after reasonable enquiry, to locate the pupil; …”
In addition, subparagraph (k) requires the deletion of a pupil from the admission register:
“Where the pupil is registered at a maintained school, that he has been permanently excluded from the school; …”
However, subparagraph (k) is subject to regulation 9(4)(d):
“(d) the permanent exclusion of a pupil does not take effect until the governing body have discharged their duties under section 66 of the 1998 Act, and – (i) the relevant person has stated in writing that he does not intend to bring an appeal under section 67 of the 1998 Act; (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned.” “(a) with leave; (b) at any time when he was prevented from attending by reasons of sickness or any unavoidable cause.” “(a) he has been granted leave of absence in accordance with Regulation 8; (b) he is unable to attend – (i) by reason of sickness or any unavoidable cause; …” “That (the pupil) has been continuously absent from school for a period of not less than 4 weeks and both the proprietor of the school and the Local Education Authority have failed, after reasonable enquiry, to locate the pupil; …” (i) the relevant person has stated in writing that he does not intend to bring an appeal under section 67 of the 1998 Act; (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned.” 61. Regulation 13 requires the proprietor of every school maintained by an LEA to make a return to the LEA of pupil absences other than absences due to sickness or leave of absence granted by the school in accordance with regulation 8. Lastly, regulation 14 requires entries on an admission register or attendance register to be written in ink and so that any corrections are apparent. 62. The division of responsibility between the governors of a school and the head teacher is the subject of the Education (School Government) (Terms of Reference) (England) Regulations 2000. As might be expected, they prescribe that: “4(1) The governing body shall exercise their functions with the view to fulfilling a largely strategic role in the running of the school.”
On the other hand:
“5(1) The head teacher shall be responsible for the internal organisation, management and control of the school, and the implementation of the strategic framework established by the governing body.” 63. The exclusion of pupils is the subject of sections 64 to 68 of the Schools Standards and Framework Act 1998: “Power of head teacher to exclude pupils. 64.(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently. (2) The head teacher may not exercise the power to exclude a pupil from the school for one or more fixed periods such that the pupil is so excluded for more than 45 school days in any one school year. (3) A pupil may not be excluded from a maintained school (whether by suspension, expulsion or otherwise) except by the head teacher in accordance with this section. (4) In this Act "exclude", in relation to the exclusion of a child from a school, means exclude on disciplinary grounds (and "exclusion" shall be construed accordingly). Exclusion of pupils: duty to inform parents, etc. 65. - (1) Where the head teacher of a maintained school excludes any pupil, the head teacher shall (without delay) take reasonable steps to inform the relevant person of the following matters- (a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded); (b) the reasons for the exclusion; (c) that he may make representations about the exclusion to the governing body, and (d) the means by which such representations may be made. (2) Where the head teacher decides that any exclusion of a pupil for a fixed period should be made permanent, he shall (without delay) take reasonable steps to inform the relevant person of- (a) his decision, and (b) the matters specified in paragraphs (b) to (d) of subsection (1). (3) Subsection (4) applies where the head teacher- (a) excludes any pupil in circumstances where the pupil would, as a result of the exclusion- (i) be excluded from the school for a total of more than five school days in any one term, or (ii) lose an opportunity to take any public examination, (b) excludes a pupil permanently, or (c) decides that any exclusion of a pupil should be made permanent. (4) Where this subsection applies, the head teacher shall (without delay) inform the local education authority and the governing body of the following matters- (a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or (b) his decision that any exclusion of a pupil for a fixed period should be made permanent, and (in either case) of the reasons for it. (5) In this section and in sections 66 and 67 "the relevant person" means- (a) in relation to a pupil under the age of 18, a parent of his; (b) in relation to a pupil who has attained that age, the pupil himself. (6) Where regulations under paragraph 4 of Schedule 11 require the governing body of a maintained school to establish a discipline committee, references in this section and sections 66 to 68 to the governing body of such a school shall be construed as references to their discipline committee. Functions of governing body in relation to excluded pupils. 66. - (1) Subsections (2) to (6) apply where the governing body of a maintained school are informed under section 65(4) of any exclusion or decision to which that provision applies. (2) The governing body shall in any such case- (a) consider the circumstances in which the pupil was excluded; (b) consider any representations about the exclusion made to the governing body- (i) by the relevant person in pursuance of section 65(1)(c) or (2)(b), or (ii) by the local education authority; (c) allow each of the following, namely- (i) the relevant person, and (ii) an officer of the local education authority nominated by the authority, to attend a meeting of the governing body and to make oral representations about the exclusion; and (d) consider any oral representations so made. (3) In a case where it would be practical for the governing body to give a direction to the head teacher requiring the reinstatement of a pupil, they shall in addition consider whether he should be reinstated immediately, reinstated by a particular date or not reinstated. (4) If the governing body decide that the pupil should be reinstated, they shall forthwith- (a) give the appropriate direction to the head teacher, and (b) inform the relevant person and the local education authority of their decision. (5) The head teacher shall comply with any direction of the governing body for the reinstatement of a pupil who has been excluded from the school. (6) If the governing body decide that the pupil should not be reinstated, they shall forthwith- (a) inform the relevant person, the head teacher and the local education authority of their decision, and (b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters- (i) the reasons for the decision, (ii) his right to appeal against the decision, (iii) the person to whom he should give any notice of appeal, (iv) that any notice of appeal must contain the grounds of appeal, and (v) the last date on which an appeal may be made. (7) Where- (a) the head teacher of a maintained school excludes a pupil otherwise than as mentioned in section 65(3), and (b) the governing body receive any representations made in pursuance of section 65(1)(c) or (2)(b) by the relevant person about the exclusion, they shall consider those representations. (8) Regulations may provide that, where a governing body of a maintained school are required under this section to take any step, the duty must, subject to such exceptions as may be prescribed, be performed within the prescribed period; but such a provision shall not relieve the governing body of the duty to take any step which has not been taken within that period. Appeals against exclusion of pupils. 67. - (1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority. (2) Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4) "appeal panel" means an appeal panel constituted in accordance with paragraph 2 of that Schedule. (3) The decision of an appeal panel on an appeal pursuant to arrangements made under subsection (1) shall be binding on the relevant person, the governing body, the head teacher and the local education authority. (4) Where on such an appeal the appeal panel determines that the pupil in question should be reinstated, the panel shall either- (a) direct that he is to be reinstated immediately, or (b) direct that he is to be reinstated by a date specified in the direction. Exclusion of pupils: guidance. 68. - (1) This section applies to any functions of- (a) the head teacher or the governing body of a maintained school, (b) a local education authority, or (c) an appeal panel constituted in accordance with paragraph 2 of Schedule 18, conferred by or under any of sections 64 to 67 and Schedule 18. (2) In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.” ” 64. The Secretary of State gave guidance in Circular 10/99. It has been amended since the times material to these proceedings. Paragraph 6.3 of the Circular stated: “Before reaching a decision, the head teacher should: - consider all the relevant facts and firm evidence to support the allegations made, and take into account the school’s policy on equal opportunities. If there is doubt that the pupil actually did what is alleged the head teacher should not exclude the pupil; - allow the pupil to give their (sic) version of events; - check whether an incident appeared to be provoked by racial or sexual harassment; - if necessary consult others, being careful not to involve anyone who may later take part in the statutory review of their decision, e.g. a member of the Discipline Committee.” 65. Paragraph 6.4 stated that exclusion should not be used for, among other matters: “Punishing pupils for the behaviour of the parents, for example by extending a fixed period of exclusion until the parents agree to attend a meeting.” (a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded); (b) the reasons for the exclusion; (c) that he may make representations about the exclusion to the governing body, and (d) the means by which such representations may be made. (a) his decision, and (b) the matters specified in paragraphs (b) to (d) of subsection (1). (a) excludes any pupil in circumstances where the pupil would, as a result of the exclusion- (i) be excluded from the school for a total of more than five school days in any one term, or (ii) lose an opportunity to take any public examination, (b) excludes a pupil permanently, or (c) decides that any exclusion of a pupil should be made permanent. (a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or (b) his decision that any exclusion of a pupil for a fixed period should be made permanent, (a) in relation to a pupil under the age of 18, a parent of his; (b) in relation to a pupil who has attained that age, the pupil himself. (a) consider the circumstances in which the pupil was excluded; (b) consider any representations about the exclusion made to the governing body- (i) by the relevant person in pursuance of section 65(1)(c) or (2)(b), or (ii) by the local education authority; (c) allow each of the following, namely- (i) the relevant person, and (ii) an officer of the local education authority nominated by the authority, to attend a meeting of the governing body and to make oral representations about the exclusion; and (d) consider any oral representations so made. (a) give the appropriate direction to the head teacher, and (b) inform the relevant person and the local education authority of their decision. (a) inform the relevant person, the head teacher and the local education authority of their decision, and (b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters- (i) the reasons for the decision, (ii) his right to appeal against the decision, (iii) the person to whom he should give any notice of appeal, (iv) that any notice of appeal must contain the grounds of appeal, and (v) the last date on which an appeal may be made. (a) the head teacher of a maintained school excludes a pupil otherwise than as mentioned in section 65(3), and (b) the governing body receive any representations made in pursuance of section 65(1)(c) or (2)(b) by the relevant person about the exclusion, they shall consider those representations. (a) direct that he is to be reinstated immediately, or (b) direct that he is to be reinstated by a date specified in the direction. (a) the head teacher or the governing body of a maintained school, (b) a local education authority, or (c) an appeal panel constituted in accordance with paragraph 2 of Schedule 18, conferred by or under any of sections 64 to 67 and Schedule 18. (2) In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.” ” - consider all the relevant facts and firm evidence to support the allegations made, and take into account the school’s policy on equal opportunities. If there is doubt that the pupil actually did what is alleged the head teacher should not exclude the pupil; - allow the pupil to give their (sic) version of events; - check whether an incident appeared to be provoked by racial or sexual harassment; - if necessary consult others, being careful not to involve anyone who may later take part in the statutory review of their decision, e.g. a member of the Discipline Committee.” “Punishing pupils for the behaviour of the parents, for example by extending a fixed period of exclusion until the parents agree to attend a meeting.” 66. Paragraph 6.5 was as follows: “The law allows head teachers to exclude a pupil for up to 45 days in a school year. However, individual exclusions should be for the shortest time necessary, bearing in mind that exclusions of more than a day or two make it more difficult for the pupil to re-integrate into the school. In all cases of more than a day’s exclusion, work should be set and marked.”
(emphasis as in original) 67. It is also necessary to refer to paragraphs 6.6 and 6.7:
“6.6 A decision to exclude a child permanently is a serious one. It is a final step in the process for dealing with disciplinary offences when a wide range of other strategies have been tried and have failed, including the use of a Pastoral Support Programme. It is also an acknowledgement by the school that it can no longer cope with the child. The Secretary of State does not expect a head teacher normally to exclude permanently a pupil for a ‘one-off’ or first offence. 6.7 A head teacher considering excluding a pupil for a single block of more than 15 school days in a term must plan: - to enable the pupil to continue their education; - how to use the time to address the pupil’s problems; and - with the LEA, what educational arrangements will best help the pupil to re-integrate into the school at the end of the exclusion. The school will usually be expected to meet some of the costs for this but the exact arrangements will need to be agreed with the LEA.”
(emphasis as in original) - to enable the pupil to continue their education; - how to use the time to address the pupil’s problems; and - with the LEA, what educational arrangements will best help the pupil to re-integrate into the school at the end of the exclusion. The school will usually be expected to meet some of the costs for this but the exact arrangements will need to be agreed with the LEA.” (emphasis as in original) 68. Annex D to Circular 10/99 dealt with procedures for excluding a pupil. Under the heading “Responsibilities of the head teacher” and “Informing parents about the exclusion”, it stated:
“1. A head teacher who excludes a pupil should make sure the parent is notified immediately, ideally by telephone, and that the telephone call is followed by a letter within one school day. An exclusion should normally begin on the next school day. 2. Letters about fixed period and permanent exclusions should explain: - why the head teacher decided to exclude the pupil and the steps taken to try and avoid exclusion; - the arrangements for enabling the pupil to continue their education, including setting and marking the pupil’s work; - the parent’s right to state their case to the Governing Body’s Discipline Committee; - who the parents should contact if they wish to state their case (usually the Clerk to the Committee); - the latest date the parent can put a written statement to the Discipline Committee; - the parent’s right to see their child’s school record; - if the exclusion is for a fixed period, the length of the exclusion and the date and time the pupil should return to school; - if the exclusion is for lunchtimes only, the length of the exclusion (normally no more than five school days) and the arrangements for providing a meal for any pupil entitled to free school meals; - if the exclusion is permanent, the date the permanent exclusion takes effect, and details of any relevant previous warnings, fixed period exclusions or other disciplinary measures taken before the present incident; - the name and telephone number of a contact at the LEA who can provide advice on the exclusions process and the telephone number for the Advisory Centre for Education (ACE) helpline … All correspondence should be in plain English and avoid unnecessary jargon. Exclusion cases should be treated in the strictest confidence. 3. A head teacher who extends a fixed period exclusion or, exceptionally, converts a fixed period exclusion into a permanent exclusion, should again write to the parent explaining the reasons and making the other points above. Where an exclusion is extended there is a new right for the parent to state their case to the Discipline Committee.”
(emphasis as in original) - why the head teacher decided to exclude the pupil and the steps taken to try and avoid exclusion; - the arrangements for enabling the pupil to continue their education, including setting and marking the pupil’s work; - the parent’s right to state their case to the Governing Body’s Discipline Committee; - who the parents should contact if they wish to state their case (usually the Clerk to the Committee); - the latest date the parent can put a written statement to the Discipline Committee; - the parent’s right to see their child’s school record; - if the exclusion is for a fixed period, the length of the exclusion and the date and time the pupil should return to school; - if the exclusion is for lunchtimes only, the length of the exclusion (normally no more than five school days) and the arrangements for providing a meal for any pupil entitled to free school meals; - if the exclusion is permanent, the date the permanent exclusion takes effect, and details of any relevant previous warnings, fixed period exclusions or other disciplinary measures taken before the present incident; - the name and telephone number of a contact at the LEA who can provide advice on the exclusions process and the telephone number for the Advisory Centre for Education (ACE) helpline … 69.Paragraphs 4 and 5 of Annex D were as follows:
“4. The head teacher should inform the Governing Body’s Discipline Committee and the LEA immediately of: - all permanent exclusions; - all exclusions which result, separately or in total, in the pupil missing more than five school days in any one term, or which deny pupils the chance to take a public examination. Short fixed period exclusions of one to five school days should be reported termly, unless the LEA asks for more frequent reports. 5. For each exclusion reported the school should give: - the name of the pupil; - the length of the exclusion; - the reason(s) for the exclusion; - the pupil’s age, gender, ethnicity, and whether they are on the SEN Code of Practice or have a statement of special educational needs; - whether the pupil is looked after by the Local Authority.” - all permanent exclusions; - all exclusions which result, separately or in total, in the pupil missing more than five school days in any one term, or which deny pupils the chance to take a public examination. - the name of the pupil; - the length of the exclusion; - the reason(s) for the exclusion; - the pupil’s age, gender, ethnicity, and whether they are on the SEN Code of Practice or have a statement of special educational needs; - whether the pupil is looked after by the Local Authority.” 70. Paragraph 6 of Annex D stated that the Governing Body should set up a Discipline Committee to review the use of exclusion. Paragraph 7 was as follows: “7. If the exclusion is fewer than 5 days, the Discipline Committee cannot direct re-instatement, but should consider any statement from the parent. For exclusions of more than five days in a term, or where a pupil loses the opportunity to take a public examination, the Discipline Committee should consider the exclusion and decide whether the pupil should be reinstated.” 71. Annex D required the clerk to the Discipline Committee, on receiving notice from the head teacher that a pupil has been excluded for more than 5 days, to set up a meeting of the Discipline Committee to consider the exclusion within specified time limits, and take other preliminary procedural steps. 72. Chapter 6 and Annex D of Circular 10/99 were replaced with effect from January 2003, after, therefore, the events in question in these proceedings. Paragraph 11.1 of Part 1, dealing with decisions to exclude, is as follows: “A reintegration meeting with parents following the expiry of a fixed period exclusion is good practice. However, a fixed period exclusion should not be extended if such a meeting cannot be arranged in time or the parents do not attend.”
A new Part 5 is entitled “Police Involvement and Parallel Criminal Proceedings”. It had no counterpart in the earlier circular. It included the following statement:
“1.1 A school-related incident may sometimes also be the subject of a police investigation which may subsequently result in criminal proceedings. This can mean that the evidence available to head teachers, Discipline Committees and Independent Appeal Panels is very limited. They may not, for example, be able to hear relevant witnesses or to consider relevant material; it may not be known whether a criminal charge is to be brought; if a charge has been brought, the eventual outcome of any court proceedings may be uncertain.” … Under the heading: “Head teacher’s decision to exclude and consideration of the circumstances by the Discipline Committee” are the following statements: “2.1 A head teacher should not postpone his or her decision to permanently exclude a pupil simply because of the possibility that criminal proceedings might be brought in respect of the same incident. In these circumstances, a judgment must be made on the basis of the evidence available. Relevant considerations include the fact that: a) a serious allegation has been made against the pupil by another pupil or member of staff at the school which is the subject of a police investigation which may result in criminal proceedings being brought b) pending the conclusion of any such criminal proceedings, the pupil’s continued presence in the school may have an adverse effect on the complainant and other potential witnesses, and on the promotion of good order and discipline at the school generally.”

The human rights issues

[35]The material provisions of the Human Rights Act 1998 are the following: Section 6 (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (3). In this section “public authority” includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (5). In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. 40. (6)“An act” includes failure to act but does not include failure to – (a). introduce in, or lay before, Parliament a proposal for legislation; or (b). make any primary legislation or remedial order. Section 7 (1). A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b). rely on the Convention right or rights concerned in any legal proceedings. (3). If the proceedings are brought on an application for judicial review, the applicant is to be taken to have sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act (5). Proceedings under subsection (1)(a) must be brought before the end of- (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, 47. but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. Section 8 (1). In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2). But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3). No award of damages is to be made unless, taking account of all the circumstances of the case, including- (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4). In determining- (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. ……………. (6). In this section- “court” includes a tribunal; “damages” means damages for an unlawful act of a public authority; and “unlawful” means unlawful under section 6(1). ECHR First Protocol Article 253. Right to education54. No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

A public authority

[36]One thing which has been common ground is that each of the defendants, the headteacher and the governing body, is a public authority within the meaning of s.6 of the Human Rights Act. It is manifest that the local education authority is such a body, but we are bound to consider whether the concession about the two defendants is one which we ought to accept.[37]The headteacher of a maintained school is the holder of a post recognised, albeit not created, by statute and made responsible for the discharge of duties owed by the state to the community (see s.13 of the 1996 Act). The governing body is incorporated by statute and has parallel obligations. There is no definition of a public authority in the Act and no comprehensive judicial exegesis of the expression. The House of Lords in Aston Cantlow PCC v Wallbank [2003] 3 WLR 283 held that a parochial church council was not such a body, notwithstanding that its origin lay in a Measure having the force of statute law, in essence because it was not discharging any function of government. "It acts in the sectional, not the public interest" said Lord Hobhouse (§86). The PCC, said Lord Hope (§59) "is not accountable to the general public for what it does. It receives no public funding…". These of course are only negative or exclusory tests. Some general affirmative tests are proposed by Lord Nicholls (§12):
"Factors to be taken into account include the extent to which in carrying out the relevant function a body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service."
[38]Although in contractual terms the headteacher is simply the first among equals, there is no institutional sense in which her functions are private or sectional. They are publicly funded; they are directed by statute to the purposes of an institution designed to serve the community and for which the larger responsibility rests on both central and local government. The contra-indications - that the headteacher holds no formal office and is a local government employee - do not seem to me sufficient to displace these factors. While I confess even so to a visceral unease at the conclusion that the headteacher of a maintained school is a public authority for the purposes of the Human Rights Act, it seems to me on balance that the concession was rightly made. What may in the end matter more is that it is the governing body, about which I have no such no such reservations, which is also legally responsible and must in practice answer for the school's defaults.

The arguments

[39]The competing cases can be very simply stated. For A, Cherie Booth QC (appearing with Carolyn Hamilton) submits that the Convention right to education is not fixed in content but takes the form of the provision made by each member state. Exclusion pursuant to law, provided the law itself does not breach the Convention, therefore involves no denial of the Convention right. It does not follow that every unlawful exclusion does amount to a breach: for example a temporary failure to provide transport when the law requires it will not amount to a denial of the right to education. Nor does it follow that no lawful act can amount to a breach: excluding a child for refusing to submit to corporal punishment which itself breaches the Convention, or exercising a legal power (if there were one) to exclude a child permanently from all access to education, would create an incompatibility between domestic law and the Convention and attract one or other of the remedies afforded by the Human Rights Act. But between these extremes, Ms Booth submits, lie cases like the present in which an unlawful exclusion has brought about a direct denial of access to the education provided for in the statute law of England and Wales, in the literal sense that A was for 10 months not permitted to attend a school or given appropriate education by other means. All else goes, if to anything, to the quantum of damage.[40]As to the first main period of A's exclusion, which the judge found to be reasonable though unlawful, Ms Booth submits that this represents a distinction without a difference. Damages under the Human Rights Act are awarded for unlawful acts, not for unreasonable ones.[41]For the two respondents Jonathan Moffett argues that exclusion is a matter of fact, and that from the moment of its occurrence s.19 transfers responsibility from the school to the LEA. If anyone is liable, even given the judge's findings, it is therefore neither of the respondents.[42]Apart from this, it is Mr Moffett's submission that the Convention right gives access to education, not to any particular educational institution or to education of any prescribed standard. Here A was initially given self-assessing work for his SATS examinations, and not long afterwards he and his parents failed to attend a meeting designed to get him back into Lord Grey or else to find him another school. Moreover, s.19 makes Convention-compliant provision for the continued education of every child in England and Wales who is not in a school.[43]More generally, it is submitted by Mr Moffett that to offend against the Convention an act has to be unreasonable as well as unlawful. This, however, cannot avail him in the light of the judge's finding that from mid-July A's exclusion was both. Discussion The Convention right

Discussion

[44]It was established by the European Court of Human Rights in the Belgian Linguistic case(1968) 1 EHRR 252 that the first sentence of article 2 of the First Protocol "does enshrine a right" - not a right with any fixed content but a right for the citizens of member states "in principle to avail themselves of the means of instruction existing at a given time". Correspondingly, any regulation of the exercise of the right "may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying," the Court added, "that such regulation must never injure the substance of the right to education…" (pp. 280-2).[45]The realistic principle that, subject to the Convention's own limits, the right to education takes the form prescribed in each member state carries in my judgment the necessary corollary that any question whether there has been a violation of the right has to be answered initially in terms of the applicable domestic law. For the reasons given by Ms Booth, which I accept, the answer yielded by the latter will not be determinative, but it is the indispensable starting point. Thus if no breach of domestic law is found, it is only if that law itself materially offends against the Convention that the Human Rights Act moves one on to the question of a remedy. If a breach of domestic law is found, it remains to be decided whether it has resulted in a denial of the Convention right. Put broadly, there will be such a denial where the breach of domestic law has resulted in the pupil's being unable to avail himself of the means of education which presently exist in England and Wales - not, for example, by being temporarily unable to reach the school premises for want of transport, but by being shut out for a significant or an indefinite period from access to such education as the law provides for him or her.[46]This does not necessarily mean access to every available aspect of education. We are bound in this regard by the decision of a majority of their Lordships' House in R (L(a minor)) v Governors of J School [2003] 2 AC 633 that 'reinstatement' in a school can accommodate the almost complete segregation of the pupil from the rest of the school community. But the question in the present case is whether the accepted unlawfulness of A's complete exclusion from the school which he would otherwise have been entitled to attend amounted, while it lasted, to a denial of his Convention right to education in the form in which it was vouchsafed by domestic law - a different question from that decided by their Lordships' House.

Reasonableness and illegality

[47]In the first main period (phases 1 to 3) of de facto exclusion, the upshot of the judge's findings is that although A was unlawfully excluded, he could have been lawfully excluded and, had the school gone about it correctly, would have been. That, however, is not the same thing as holding the exclusion to have been unlawful but reasonable. In argument Mr Moffett accepted that had the exclusion been challenged during its currency by judicial review, reasonableness could have been no answer to the charge of illegality. It seems to me that the same must be true in a retrospective action for damages. Assuming that the other elements of liability are present (and I will come to these), what the argument may go to is the quantum of damage. Here one can see at least the initial attraction of the proposition that damage caused by an illegal act has to be measured by the difference between what happened and what would have happened had the defendant acted lawfully. But we have not reached that stage of the case and I express no firm view on it. For the rest, I do not accept that it can be an answer to a prima facie denial of the Convention right to education that the denial, though unlawful, was reasonable. As will appear, however, I do consider that the answer may be affected by the nature of the illegality.[48]In the second and third phases the exclusion itself was lawful in the sense that it was based on tenable grounds and was for a finite period not exceeding 45 school days in total. What was unlawful was the headteacher's failure to notify the parents about their right to make representations to the governing body, and the governing body's failure, having been notified of the exclusion, to meet and consider whether it should continue. In my view it is only where it is found that the governing body would more probably than not have ended the exclusion that it can be argued that an otherwise lawful exclusion amounts to a breach of the Convention right to education. But here too, the answer to illegality is not reasonableness but immateriality.[49]Just as reasonableness by itself is not a defence to illegality in public law, neither is it a defence in the Convention jurisprudence on article 2 of the First Protocol. Mr Moffett sought to rely on the Court's decision in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, §41, and on the Commission's decisions in Whitman v United Kingdom (13477/87; 4 October 1989), Sulak v Turkey (1996) 84-A DR 98, and Yanasik v Tukey (1994) 74 DR 14, in each case for the proposition that a reasonable denial of the right to education does not violate the Convention. It is sufficient to say that in Campbell and Cosans the decision was that to exclude a child from school for as long as his parents refused to let him be beaten "cannot be described as reasonable and in any event falls outside the State's power of regulation in article 2". This gives little if any support to Mr Moffett's affirmative proposition of law. The three Commission decisions confirm that reasonable restrictions may be placed by the state upon access to education without violating the right. That is a long way from saying that so long as the right is reasonably withheld the Convention is satisfied. As the court was careful to say in Campbell and Cosans, "such regulation must never injure the substance of the right".

Phase 1

[50]Was the first period of unlawful exclusion of such a character as to amount on the face of it to a denial of the right to education? I consider that it was - not so much because of its eventual duration (which, even so, was not insignificant) but because it purported to be indefinite. An indefinite exclusion from his school, absent some proper substitute provision (to which I turn next), seems to me to be a pretty unequivocal denial of a pupil's right to education.

Phase 2

[51]For the reasons I have given in paragraph 26 I do not consider that the illegality attending the exclusion of A once the headteacher had formally excluded him for a finite period (viz the failure to involve the governing body) is of a nature which vitiates the exclusion itself. It might well have founded an application for judicial review, but the time for that is long past. There seems to me to be a difference (and I will need to return to this) between a lawful act vitiated by a failure to take further or associated steps required by law and an act done without any lawful authority at all.

Phases 1 and 2

[52]The next question therefore in relation to the first phase, when there was no lawful exclusion, and (were I to be wrong about the impact of the illegality associated with it) in relation to the second phase as well, is whether by being given self-assessing work in preparation for the SATS examinations A was afforded sufficient access to education to answer his Convention claim. If the initial exclusion had been lawful, I have no doubt that this would have answered the claim: it would have corresponded with the provision made by law to ensure that even when kept out of school a pupil is not shut off from learning. But what is the situation when the pupil has not been lawfully excluded in the first place?

Article 2

[53]The respondents' answer is beguilingly simple: if A continued to be afforded education by the state system from the time when he was excluded to the time when he took the SATS examinations, there can have been no denial during that time of his right to education. Although Ms Booth points out that the work was only in the three SATS subjects, that cannot rebut the respondents' answer. Her substantive rebuttal is that if, as the respondents rightly assert, the content of the Convention right is as much or as little as the member state elects to provide, A was entitled admittedly to no more, but affirmatively to no less, than domestic law vouchsafed him. That included a right not to be excluded from Lord Grey except in accordance with the principles and procedures set by law. If so, the substitution of homework for school education is nothing to the point.[54]I do not find this easy. It can be said on the one hand that a reduction in a pupil's standard of education, albeit based on an illegal act on the part of the state, is no more a violation of the Convention right to education than an unlawful failure by the state to provide transport. In neither case is the essence of the right invaded. On the other side it can be said that it does not lie in the mouth of the state to say that it is free to exclude a pupil from the very form of education which it has legislated to assure and to substitute something poorer in its place[55]On the latter view, the factual differential would fall to be reflected in damages, though these might well turn out to be modest or nominal. I accept, too, that the argument on which this view depends is the more principled argument. But my preference in the end is for the first and more pragmatic of the two approaches. Given the common ground that it cannot be every unlawful act or omission on the part of the state which, by blocking the pupil's access, amounts to a breach of the Convention right to education, it follows that the quality of a breach of the law cannot be divorced from its consequences or sequel. In other words, an unlawful exclusion during which the pupil is offered no education at all by either the school or the LEA is a different thing in Convention terms from an unlawful exclusion during which adequate or appropriate substitute education is offered. This gives s.19 a proper role in gauging domestic compliance with the Convention, for I have no doubt that, if the school itself does not send useful work home for an excluded pupil, s.19 triggers LEA intervention. "Illness, exclusion from school or otherwise" seems to me to eliminate any question about the legality of the exclusion, though one would always expect the LEA independently of s.19 to satisfy itself that an exclusion which came to its notice was lawful and appropriate.[56]Accordingly I would hold that the first two phases of A's exclusion, while at least the first could have been attacked for straightforward illegality on judicial review, did not involve a breach of his rights under article 2 of the First Protocol. This is not, however, on the ground adopted by the judge that the exclusion, though unlawful, was reasonable. That is a distinction which I think the law would make at its peril. It is on the ground that, though he was denied access to his school, A was afforded appropriate education. It does depend in part, however, on the nature of the illegality, and I will return to this in relation to phase 4. For the present I stress that in phase 1 the legal vice was not the act of exclusion but the failure to set a term to it and that in phase 2 the legal vice was the failure of the governing body to become involved and of the headteacher to tell the parents of their right to involve the governors.

Phase 3

[57]From the completion of the SATS examinations the school offered to provide A with work, but the offer was not taken up. In those circumstances, in the absence of an acceptable explanation, the third phase of exclusion has to stand on the same footing as the second.

Phase 4

[58]Once the permitted period of 45 days' temporary exclusion had expired, A's continued exclusion was incontestably unlawful. The school had a clear obligation either to readmit him or (if it had grounds for doing so) to exclude him permanently; but it did neither. The exclusion was now unlawful, moreover, not in the earlier sense that it had been imposed in proper circumstances though in improper form, but in the sense that it was done in defiance of a clear statutory prohibition and was a legal nullity. It was also in the course of this phase that it became clear that no grounds existed for permanent exclusion, leaving readmission as the only option.[59]In such a situation does the school's continuing offer to provide work at home still furnish an answer? Alternatively, should the LEA carry the full blame for not having picked up A's needs under s.19? I will consider the second question separately.[60]I suggested earlier in this judgment, in relation to the first three phases, that the quality of a breach of the law cannot be divorced from its consequences or sequel, so that the provision or offer of homework was material. If that is right, it must equally be true of the fourth phase. But it does not follow that the same approach to the fourth phase produces the same answer, and in my judgment it does not produce the same answer. It makes practical sense to hold that excluding a pupil at a time when, and in circumstances in which, temporary exclusion is both lawful and factually permissible, but going about it otherwise than in accordance with the law, is a denial of the pupil's right to education only if no worthwhile substitute is meanwhile put in place. It offends good sense and justice, by contrast, to hold that to exclude a pupil otherwise than permanently from the school at which he is enrolled when to do so is prohibited by law and, even more, when it becomes apparent that there is anyway no factual basis for doing so, is still not a denial of his right to education so long as substitute homework is offered to him. The denial of education – which is what it seems to me to have been - was compounded by the failure of the governors to consider whether the exclusion could lawfully continue. Had they considered it, they could have come to only one conclusion.[61]I would hold accordingly that in phase 4 A's Convention right to education was denied, notwithstanding that the school was still offering to provide him with substitute work to do at home. The availability of such work may go to the damages for this phase of exclusion, but it does not affect liability.

Phases 5 and 6

[62]The two final phases, though factually distinct, fall to be considered together in law because, as is now common ground, removal from the school roll is not an act with legal consequences. It is the administrative consequence of other acts, and if those acts are not lawfully done, neither is the removal from the school roll. This follows from the provisions of Regulations 6 and 9 of the Education (Pupil Registration) Regulations 1995. The former requires an alphabetical register to be kept of "all the pupils at the school". The latter requires the deletion of a pupil's name if, among other things, "he has been permanently excluded from the school".[63]The judge held that even the removal of A from the school roll was improper because reasonable attempts had not been made to locate A before deciding whether to delete his name. But no separate legal consequences flow from this. The question whether A had been permanently excluded de facto from Lord Grey does not arise in relation to mid-October, when his name was removed. It arises, if at all, in relation to the letter sent to his parents following the abortive meeting on 13 July. The effect of that letter, as the judge held, was to tell A and his parents that A was no longer a pupil at the school. There was accordingly no offer or expectation of further school work to be done at home. Once again, as the judge found, this purported exclusion was unlawful. He also found that it was unreasonable. There were by now, to the headteacher's knowledge, no grounds on which A could be lawfully excluded. Once again, the governors took no supervisory action.[64]So characterised, the exclusion of A from 14 July until he was finally placed in a new school amounts in my judgment to a further denial of his Convention right to education. It was complete and it was prolonged. It was not terminated by the deletion of A's name from the school roll because there was no lawful ground for deletion. To the extent that it may nevertheless have been acquiesced in, the damage may be mitigated. But this is not our present concern, and it will require (if the case goes that far) a factual inquiry into a number of things including the family's state of knowledge and understanding.

The local education authority

[65]All of the foregoing, however, is subject to Mr Moffett's overriding argument that, notwithstanding these breaches of the law, neither the headteacher nor the school bears any liability because from the moment of exclusion, whether lawful or unlawful, the law places the responsibility for a child's education on the LEA. Any breach of article 2 of the First Protocol, it follows in Mr Moffett's submission, has to be brought home to the LEA. This, he submits, is both the purpose and the effect of s.19.[66]I can readily accept that where the LEA does step in, any educational shortfall caused by an unlawful school exclusion may be partly or wholly mitigated. If my analysis of the classes of breach of duty on the part of the school is right, it will follow that in the first class there is no breach of the Convention right where the LEA intervenes, and in the second that the damages for the breach are reduced by the LEA's intervention. Correspondingly, any failure to take advantage of LEA intervention can negate a breach of the Convention right in the first class of case and represent an unreasonable failure to mitigate damage in the second.[67]In the present case it has not been argued that such offers as the LEA made were sufficient to negate a breach of the Convention right if one were otherwise made out against the school. It will be open to the respondents to submit that they mitigate the damage, which in turn will involve some inquiry as to what was or would have been offered.[68]But I am unable to accept Mr Moffett's further and fundamental argument that the bare existence of the LEA's fallback duty, together with A's right to seek to enforce it, relieves the school either of its obligations or of the legal consequences of failing to discharge them. On the contrary, it is on the two public authorities who are the present respondents (or put more realistically, the school) that the state has chosen to devolve the material elements of the obligation which it has undertaken to provide universal secondary education. It is the headteacher and the governing body who in law bear the primary duty to educate a child who has been accepted in their school and, as a corollary, not to exclude him except as authorised by law.

Conclusion

[69]I would therefore uphold, though on different grounds, the decision of Stanley Burnton J that the respondents are not liable to pay the appellant damages under s.8 of the Human Rights Act 1998 for the period from 8 March 2001 to 6 June 2001. I would allow the appeal in relation to the period of exclusion from Lord Grey School from 7 June 2001 to 20 January 2002. In relation to that period the action must proceed to the assessment of damages unless (as is very much to be hoped) agreement can be reached between the parties. In this regard careful attention must be paid to the decision of this court in Anufrijeva v Southwark LBC [2004] 1 All ER 833.

Lord Justice Clarke:

[70]I agree.

Dame Elizabeth Butler-Sloss P.:

[71]I also agree.

Order

Appeal allowed in part; to be remitted to lower court. (Order does not form part of the approved judgment)

Cited in 5 later judgments