D v Independent Education Appeal Panel of Bromley London Borough & Anor [2007] EWCA Civ 1010

Case No C1/2007/1011[2007] EWCA Civ 1010
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JAMES GOUDIE QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 18 th September 2007
Before
LORD JUSTICE THORPELORD JUSTICE LONGMORELORD JUSTICE MAURICE KAY
Between
DAppellantINDEPENDENT EDUCATION APPEAL PANEL OF BROMLEY LONDON BOROUGH & ANRRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Denis Edwards (instructed by Streetwise Community Law Centre) appeared for Appellant.Akhleq Choudhury and Peter Oldham (instructed by Coopers Technology College and the Independent Education Appeal Panel) appeared for Respondent.
Judgment
[1]This is an appeal from Mr James Goudie QC sitting as a deputy judge in the Administrative Court. The origins of the matter are that there were two incidents at a school which resulted in the exclusion of a pupil, to whom I will refer as D. Those two incidents were that he threatened to burn the tyres of the car of a science teacher, and, secondly, that he pushed his hands into the hair of a member of the support staff at the school no less than twice -- the second time after being told to desist. It was suggested by the school that that attack was racially motivated. On 7 December 2006 the Principal decided that D had to be excluded, and he wrote a letter to D’s parents to that effect. That decision was upheld by the school governors, and the parents, as they were entitled to do, appealed to the Independent Education Appeals Panel of the relevant London Borough, which was Bromley. The powers of the Independent Appeal Panel are set out in Regulation 6 of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 SI 2002/3178. Regulation 6(6) provides:
“On such an appeal the appeal panel may -- (a) uphold the exclusion; (b) direct that the pupil is to be reinstated (either immediately or by a date specified in the direction), or (c) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction.”
[2]The Independent Appeal Panel met on 21 February 2007, and the Principal, the Deputy Principal and the parents were present at that appeal panel hearing. The panel considered each incident separately, and decided by a majority that neither justified a decision to exclude the pupil; but they further decided that it was not in D’s best interests, or indeed the school’s interests, for him to return, and they declined to order reinstatement. On 1 March 2007, Streetwise, on behalf of the pupil’s parents, wrote to the appeals panel, saying that the decision was made without jurisdiction or natural justice, or was otherwise unreasonable. The clerk to the panel sent a reasoned response on 9 March 2007, with which the parents were dissatisfied, and five grounds of judicial review were advanced for the benefit of the deputy judge sitting in the Administrative Court. First, they claimed that the panel had acted without jurisdiction; secondly, that they had acted unlawfully; thirdly, that they had acted in breach of the rules of natural justice; fourthly, that the decision was unreasoned; and fifthly, that it was Wednesbury unreasonable. In a short judgment, the deputy judge rejected each of those five grounds.[3]There is now an application for permission to appeal which has been adjourned on notice into open court, with the appeal to follow if the permission is granted. As my Lord has indicated, we will grant permission. The argument has concentrated on the aspect of natural justice. Mr Edwards, for the parents and the pupil, submits that, firstly, the school has never stated, and indeed has never been invited by the panel to state, what the reasons for non-reinstatement could be if the original decision to exclude was unjustified; secondly, that the panel therefore never heard any evidence about the exceptional circumstances or other reasons, as a result of which it is now said that it is not practical to give a reinstatement direction. Mr Oldham, for the panel, and Mr Choudhury, for the school, submit firstly that there was no obligation on the school to make any separate submission on the basis of exclusion being held to be unjustified; and, secondly, that there was no unfairness in fact because the issues were obvious. The school did not want reinstatement for exactly the same reasons as justified their exclusion of the pupil in the first place. They rely on the Principal’s evidence to that effect, and his notes as made during the hearing in response to the questions he was being asked. He sets out the effect of those notes in paragraph 6 of his statement of 11 September 2007, to this effect:
“6. The first note reads ‘My job to promote self-discipline & proper regard for authority among pupils ensure pupils’ standard of behaviour is acceptable & to regulate conduct’. 7. The second note starts underneath the first one, with ‘Answer to her’ and an arrow to the next page of the letter. At the bottom of that next page I have written ‘Serious behaviour! there is a clear link between his behaviour & maintaining good behaviour & discipline among the whole college letting him to continue would’. The note ends there. It records the gist of a response I made during the meeting either to the Claimant’s representative or to the Chair of the Panel.”
[4]We now have the advantage in this court of the clerk’s notes of the hearing, not available to the deputy judge; and it is clear that the questions of justification for exclusion, and the reasons for opposing reinstatement, were dealt with together rather than separately. There is nothing wrong with these questions both being dealt with at the same single hearing, but for my part, I consider that they give rise to two separate issues which ought to be separately addressed. If they are not addressed separately, the parents will not know what case it is they have to meet. It is of the essence of natural justice that a party to proceedings does know what case he has to meet. This was not a straightforward case, and it was an important case for the pupil, whose brother still remains at the school, and his parents. The panel decided that the allegation by the second teacher, of racial discrimination, had not been proved. They considered that neither incident justified exclusion. It would normally follow that, if the original exclusion was not justified, a panel would order reinstatement, unless there was some particular reason, whether, in the wording of the regulations, exceptional or otherwise, to which the school could point, which would justify the continued exclusion which will result from a failure to reinstate. In these circumstances, this panel ought, in my judgment, specifically to have asked the school what reasons they had, if any, for objecting to reinstatement if the original exclusion was found to be unjustified.[5]The pupil’s parents would then have known what particular reason or reasons they had to address. Both the panel and the school suggest that if the school were asked that question, there would only be repetition of what had already been said. But if that is right, it would not be easy to justify a decision not to order reinstatement, since the submission of exclusion would have already been rejected. That is not to say that there may not be perfectly good reasons for not ordering reinstatement, e.g., that a particular course might be no longer available, or, more sensitively, that there might be a breakdown in the relationship between the staff and the pupil, possibly leading to consideration of industrial action of some kind. Indeed, the clerk’s note shows that the panel does seem to have adverted to that as a possibility in its private discussion, although there was no evidence of it. But these reasons will usually be the sort of reasons which do not fall for consideration in deciding that the original exclusion was unjustified. If the reasons are the same as the reasons which were advanced to justify exclusion in the first place, which have already been rejected by the panel, it may be difficult to formulate any cogent reason for rejecting reinstatement. Since the school was never invited to, and never did, formulate any such reasons, the parents were at the disadvantage of being unable to address such reasons.[6]It does seem to me, therefore, that there has been here a failure of natural justice, and that the panel’s decision not to order reinstatement should therefore be quashed, and the panel, or a panel, according to submissions of counsel in due course, should be required to reconsider the issue of reinstatement. Those are the reasons which, for my part, prompted me to agree to give permission to appeal, and I would allow the appeal accordingly.[7]I agree. The decision of the panel not to uphold the exclusion gave rise to an obligation to consider reinstatement which could only be denied under Regulation 6(6), “because of exceptional circumstances or for other reasons”, which made it “not practical”. Although the school had advanced its case in support of permanent exclusion, that case was rejected. At no stage did it advance additional or alternative reasons why, upon such rejection, reinstatement was not practical. At first sight, the argument for permanent exclusion having been lost, it would not axiomatically support a refusal of reinstatement. It must often happen that reinstatement follows when permanent exclusion is not upheld. There is no requirement for two hearings or two stages of a single hearing. The parties can be invited within a single hearing to make their submissions as to reinstatement on the contingent basis that the exclusion is not upheld. Alternatively, they can be so invited once the first decision has been announced. In the present case, the school did not make submissions specifically against the practicality of reinstatement, nor was it invited to do so. It is not possible to discern what arguments there may have been, save for those which were found not to have justified permanent exclusion in the first place. Indeed, the subsequent evidence of the Principal is that the school relied on those arguments and no others. Matters such as an irretrievable breakdown of relations with the pupil or with the parents did not arise. As it happens, as my Lord has observed, the parents had and continue to have another child at the school. No supervening matters going to practicality have been raised. According to the decision letter, the panel refused reinstatement by reference to:
“…specific circumstances of the incidents and the effects of such on the management of the college, D’s best interests and that of the whole College community.”
[8]That begs the questions as to what it was about those circumstances, effects and interests that rendered it not practical to reinstate when they had not justified permanent exclusion. In the clerk’s notes of the panel’s deliberation, reference is made at the appropriate point to “breakdown teachers/staff”. That had not been the subject of evidence or submissions. I am left with the impression that the panel, without inviting submissions on the subject, concluded that reinstatement was not practical, notwithstanding that continued presence would have been practical at the time of permanent exclusion. It may be that that conclusion was conditioned by fear of a breakdown of relations which was simply assumed. In any event, for the reasons given by my Lord, I have concluded that the decision on reinstatement was flawed. I too would grant permission and grant judicial review. I would remit the matter for further consideration, but would wish to hear counsel on whether that remission should be to the same panel or a differently constituted panel.[9]I concur with the conclusions of my Lords and for the reasons that they have given.

Order

Application granted

Cited in 1 later judgment