“12. Regulation 4... provides that GBs shall exercise their functions with a view to fulfilling a largely strategic role in the running of the school and shall establish a strategic framework for the school by setting aims and objectives, setting policies for achieving those aims and objectives and setting targets for achieving those aims and objectives and shall act as ‘critical friend’ to the head teacher ‘that is to say, they shall support the head teacher in the performance of his functions and give him constructive criticism.’ By Regulation 5 the head teacher is made responsible for the internal organisation, management and control of the school, and the implementation of the strategic framework established by the GB.”
“(1) If at any time this section applies to a maintained school in accordance with section 14(1), then (subject to subsections (2) and (3)) the local education authority may, with the consent of the Secretary of State, give the governing body a notice in writing stating that, as from a date specified in the notice, the governing body are to be constituted in accordance with Schedule 1A (governing bodies consisting of interim executive members).”
“(1) The governing body of the school shall consist of members appointed by the appropriate authority [sc. in a s.16A(1) case, the LEA], instead of being constituted in accordance with regulations made by virtue ofsection 19 of the Education Act 2002 . (2) In the following provisions of this Schedule— (a) the governing body as constituted in accordance with this Schedule is referred to as ‘the interim executive board’, and (b) the members of the governing body as so constituted are referred to as ‘interim executive members’.”
“[The school] is multicultural but most of the pupils are Muslim. The Claimant told me that 80% to 85% of the pupils were Muslim, approximately 64% were Pakistani Muslims and the others were of various nationalities. In 2003 about 50% of the pupils were on the special needs register. She said, and I accept, that many of the parents were not literate in English and some not literate in their own languages. Mrs Veasey, the former deputy head, told me that 90% of the pupils were EAL (English as an Alternative Language). Between 1998 and 2002 SATS results improved very considerably under the Claimant’s leadership. In subsequent years the results were more variable: she said that the reasons in part were the changed composition and classification of the pupils. She ran a happy and successful school where there were no real problems until 2003.”
“On8 October 2003 there was a GB meeting. Mrs [Sofia] Syed was appointed as a co-opted governor, proposed by Mr Martin, and the GB recommended that Mr Shahin and Mr [Mumtaz] Saleem be recommended for consideration as LEA Governors. Mr Martin put himself forward for the vacancy as Chairman of the GB on condition that there was a non-denominational prayer to invoke the blessing of the Almighty before the meeting started... The governors in Mr Martin’s absence unanimously agreed that 30 seconds silence for personal reflection would be more appropriate. On return Mr Martin said he sensed tension between the school and the community to which the Claimant replied that the staff had worked hard at building a partnership with the community and felt they had been successful in this. Mr Saleem expressed an interest in being considered for the position of Vice Chair when appointed.”
“Mr Shahin soon ceased to play any part but it is clear to me that Mr Martin’s and Mr Saleem’s conduct, and to a much lesser extent Mrs Syed’s, and the issues they raised created considerable problems for the Claimant, the school and the LEA. What those problems were and how the LEA, in particular, dealt with them has been the subject of considerable scrutiny in this case.”
“The Claimant told me she remembered coming away from the meeting feeling intimidated and very worried for the future.”
“I appreciate this appears perhaps to be an emotional response rather than a professional one but I am at my wits end and came away from the meeting very dispirited. It certainly seemed the last straw and I feel uncertain as to how I may proceed. I would be grateful if you would look closely at the minutes... but I am floundering a little at this stage as there seems to be a determination to question the work of the school without any reference to or apparent concern for, what is already happening and indeed how this impacting on the staff.”
“As you will imagine I now have serious concerns as this is affecting the school and all the staff tremendously...”
“I am concerned that the attitude and behaviour displayed by these governors is having an extremely negative effect on the morale of the other governors, the morale and well being of the teachers and management team of the school... and, worst of all, is adversely affecting the health and well-being of Erica who works tirelessly for the benefit of the school and the community. I believe the time is well overdue for the LEA to step in and investigate the operation of this governing body, with a view to re-constitution or, at the very least, some form of special measures in order to demonstrate support for the school, its teaching staff and ultimately the pupils. ... [Q]uite honestly the only reason I am still in post is out of a sense of duty towards Erica and the school, who should simply not be suffering from this type of behaviour and attitude.”
“Dr Gray wished to reassure her that the LEA was aware of the difficulties at New Monument, that they would do what they could to support the school with some possible follow up training for the staff.”
“Mrs Marsden recorded that the Claimant became very emotional stating she ‘could not go on’ and that she was ‘in the middle trying to please everyone’. The Claimant told me that at this time she was feeling desperate and did not know where to turn. She also told me that at this time parents were telling her that meetings were taking place in the community ‘trying to get me out’. She said she felt on the verge of a breakdown. She also felt that at this stage Mrs Marsden was getting a little fed up with the situation.”
“1. To determine the quality of the relationships between the governors, community, parents, school, LEA and the local council. 2. To assess the impact and effectiveness of the diversity and inclusion policies, as well as working practices, on those pupils attending the school.”
“I am extremely disappointed with the actions of the LEA: as chair of governors I reached out to the LEA for help and advice and having tried to sidestep the issue through a watered down review, the LEA are now casting those who have tried to resolve the anti-Christian and anti-secular antics of a small group of individuals, as the parties at fault. I feel that by attempting to resolve the matter as described the LEA are missing the point. The precise point being that a small number of people, without the support of the local community, are attempting to undermine the governing body to the extent that there is a take over by anti-secular people who will transform the educational environment at the school to the detriment of the children and the community. Therefore addressing the matter described will not resolve the issues unless some action can be taken to protect the principle of secular education.”
“Mr Martin’s removal led to a backlash, which was not entirely unforeseeable in the light of his past conduct, even if the mechanism could not have been anticipated.”
“We the undersigned, parents of children at New Monument School, no longer have confidence in Erica Connor to educate our children in a way that respects and values our faith, culture and heritage.”
“Erica has used Mark Tackley-Goodman, her friend, to be the chairman of the governing body. This man has no connection with the children/school/community/area/culture/religion. He was brought in to stop a Muslim becoming the chair.” “She use[d] Mark Tackley-Goodman to bully Br. Khalil [Mr Martin’s Muslim name]. She wanted to intimidate Br. Khalil into stop asking questions about her management of the school.”
“Erica’s prime motivation is her own career, she has no respect for the needs of the community. She is contemptuous of the parents and has as little to do with them as possible. Erica dresses in a way that is inappropriate to our community’s values.”
“The Local Authority has no evidence that these statements are factually correct. A number of the statements are personally defamatory. We have contacted the police because of our concern and they have visited the school this morning. We are also taking legal advice. We carried out a leadership and management review of the school eight months ago and found no evidence of racism or Islam[o]phobia.”
“This was described, not unfairly in my judgment, as a somewhat anodyne response. It is not a letter which was clearly and unequivocally supportive of the staff and the Claimant.”
“The letter nowhere stated expressly what staff wanted to hear: namely that the school was sound, that the allegations were rejected and that the Claimant had the LEA’s full support.”
“We could see a lot more of this happening or some possible personal injuries cases against the LEA if we are not careful.”
“What had struck her from her conversations with the staff was the fact that there was no white/Muslim divide in their views and that disapproval of external Muslim pressure was common to all staff no matter what their creed. It was clear to her too that external unfair pressures were being brought to bear on Muslim staff... She considered that after the petition ‘we were doing everything we could’. She was a very fair and impressive witness with what I consider was a balanced view of what was happening. I accept her evidence of the state of affairs she confronted and described. The only reservation I have is whether the Defendants, as opposed to her, did everything they could have after the petition was in circulation.”
“I am becoming increasingly concerned about the pressure that is being applied onto Erica – whilst I am the first to acknowledge that a lot of this is outside the direct control of the LEA the fact remains that as the ‘employer’ [the council] has a legal duty of care towards all the staff at Monument Hill...”
“I wish to reiterate that I am astounded that I am being expected to continue working with particular individuals on the GB. I cannot believe that the LEA is putting me and the staff members in a position that is both threatening and completely unproductive. I feel the LEA should be making a stand on this and supporting the school. By allowing these governors to continue in this way a clear message is being sent to them, the staff and the community. I am continually baffled and disappointed by actions taken and indeed so often not taken – by the LEA at this time.”
“At what point is the LEA going to take any action against Paul Martin or is he going to continue to destroy my reputation, my career and indeed as it feels at the moment, my life, unabated... I reiterate my deep distress and concern regarding these and many other issues. I am totally vulnerable as is the school and staff. Support we have finally received in the form of counselling etc is welcome but the fact remains that individuals continue on a daily basis to undermine me, the school and the staff and there is no determined action from the LEA to put a halt to this. It appears that Paul Martin can do what he wishes and the LEA will jump to his requests, complaints and demands at the expense of LEA employees’ welfare and health.”
“We have not been able to find sufficient evidence to uphold the complaint of racism by the school or the local authority. We have upheld the complaint that the school has not been responsive to the needs of the faith community. This was in part due to the headteacher’s belief that she knew best how to provide multicultural education and was reluctant, if not dismissive, of anybody outside the school community who challenged this view or her autonomy... There was also the fear that Paul Martin and others were attempting to place the school in Special Measures in order to bring about an Islamic school. This unfounded fear became widespread throughout the school and was shared by some members of the [GB].”
“234... From late 2003 down to the summer of 2005 the GB was dysfunctional. The cause... was the conduct, in particular, of Mr Martin and Mr Saleem. I am satisfied that they sought to monopolise GB meetings with a view to imposing their own agenda, and were prepared to do so regardless of the interests of the school and anyone who resisted that agenda. What was that agenda? It was at the very least to introduce an increasing role for the Muslim religion in New Monument School... In my judgment it was not unreasonable for the Claimant and the staff to consider that there was an agenda to convert New Monument into an Islamic faith school. 235... [Mr Martin and Mr Saleem] sought to dominate the agenda at GB meetings and Mr Saleem’s approach extended to offensive verbal attacks at GB meetings, followed by requests for information from the school. Mr Martin’s approach... extended to persistent complaining until he had his way and, once excluded from the GB, extended to extra mural activities stirring up disaffection in the local community. LEA officers appear to have realised this. Certainly they ought to have done so. 236. But, by excessive tolerance, they failed to keep such activities in check. They also, in my judgment, had misplaced sympathy for Mr Martin... 237. In responding to Mr Martin’s demands, complaints and suggestions the Defendants lost sight of the adverse effects of such conduct and their response to such on the school. The lack of timely intervention in the GB meant that Mr Martin’s and Mr Saleem’s conduct there had the effect of tearing apart the GB, and these matters together with poor response by the Defendants had as their effect 2 years of anxiety and low morale for the school staff, stress leading to need for early retirement in some staff and the Claimant and disruption in the local community with, on the evidence, little, if anything, positive to show for it.”
“I am satisfied that there were two closely linked causes of the Claimant’s stress and depression. Mr Martin’s and Mr Saleem’s conduct, in particular that of Mr Martin, and the Defendants’ failure to provide the Claimant with support to protect her from such conduct and its consequences...”
“269. But the question for decision is not whether these were flawed decisions but whether any of them were negligent in the context of this case. In my judgment delay in setting up an IEB, and setting up the independent inquiry were, because they disregarded the health and welfare of the Claimant and her staff when such ought to have been central considerations. ... 271. In my judgment the Defendants should have issued a formal warning no later than the end of February 2005. That would have enabled an IEB to have been set up no later by about May at the latest. Knowledge that this was going to happen would very likely have stalled further GB action with the result that the GB would not have proceeded with removing Mr Martin alternatively their powers to do so would have been removed. That in my judgment would have prevented much if not all of the backlash that resulted. And importantly taking over the GB would have removed the influence of Mr Martin and Mr Saleem, demonstrated that the Defendants were supporting the school and the Claimant and helped alleviate the stress and its harmful consequences. The Defendants failed to provide the Claimant with the support she needed. 272. I consider the decision to set up the Inquiry to deal with Mr Martin’s complaint of racism and Islamophobia and extending the Inquiry’s scope to include the school’s relations with the community, both highly sensitive areas so far as the health and welfare of the staff and the Claimant were concerned, were made in disregard of the duty of care the Defendants owed the Claimant and the staff, concern for which had earlier been expressed on many occasions, but most clearly in Mrs Cicero-Scott’s report. Earlier Mr Ambrose had said ‘when will it ever stop... It must be dreadful in the school’. It was the Defendants’ duty to put a stop to it so far as was within their power. If the Defendants decided not to stand by the findings of the earlier Review, which in my judgment they should initially have done, but decided on an inquiry, independent or otherwise, it should have been kept low key whereas the present inquiry actively involved the school, against their will, in participating in something they regarded as a extremely damaging.”
“[t]he [council] owed the claimant a duty not to expose her to unreasonable risk of psychiatric injury” (paragraph 246). There was however some argument at the Bar as to whether the divide between these seemingly very different approaches might after all be crossed, or at least be lessened, on the footing that the law of negligence will not condemn action which lies “within a reasonable range of options” open to the actor. Mr Faulks referred to Chittock [2003] PIQR P6,[2002] EWCA Civ 915 , in which a schoolboy suffered a skiing accident on a school trip and sued the school, alleging negligence on the part of the teacher in charge. Auld LJ (with whom Carnwath LJ and Sir Swinton Thomas agreed) stated at paragraph 18: “Where there are a number of options for the teacher as to the manner in which he might discharge that duty, he is not negligent if he chooses one which, exercising the Bolam test (1957] 1 WLR 582), would be within a reasonable range of options for a reasonable teacher exercising that duty of care in the circumstances.”
“I have no difficulty in concluding that the school problems, which I define as the conduct of Mr Martin and his associate governors and its effect on the Claimant, coupled with the LEA’s failure to provide support but by their actions instead appearing to support Mr Martin, resulted in the Claimant’s depression. Not being a psychiatrist I cannot say when the Claimant first became clinically depressed. Clearly she was so when she ceased work in September 2005 but it may well be that she could have been diagnosed as clinically depressed at some earlier stage or stages. It seems to me that the relevant trigger was the Defendants’ conduct in June/July 2005 in commissioning the report coupled with the lack of support at that time which left her having to deal with the problems very much in isolation. Seeing the Report and its unfair and wrong conclusions was probably the final straw and that clinical depression was present almost immediately thereafter. But I stress that is very much a matter for a psychiatric view. It matters little to my assessment of damages.”
“[I]n seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion altogether: if it was not, a local authority cannot itself be in breach of any duty of care owed to the plaintiff. In deciding whether or not this requirement is satisfied,the court has to assess the relevant factors taken into accountby the authority in exercising the discretion. Since what areunder consideration are discretionary powers conferred on public bodies for public purposes the relevant factors will ofteninclude policy matters, for example social policy, the allocationof finite financial resources between the different calls madeupon them or... the balance between pursuing desirable social aims as against the risk to the public inherent in so doing. It is established that the courts cannot enter upon the assessment of such ‘policy’ matters. The difficulty is to identify in any particular case whether or not the decision in question is a ‘policy’ decision.”
“From these authorities I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy mattersand therefore cannot reach the conclusion that the decision wasoutside the ambit of the statutory discretion. Therefore acommon law duty of care in relation to the taking of decisionsinvolving policy matters cannot exist.”
“However the question whether there is such a commonlaw duty and if so its ambit, must be profoundly influenced bythe statutory framework within which the acts complained ofwere done... [I]n my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.”
“In summary... I think that the minimum pre-conditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that thepolicy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”
“I consider that subsequent decisions have shown that the underlying principle to be derived from the passages in the judgments of Lord Reid and Lord Diplock in the Dorset Yacht case relating to negligence in the exercise of a statutory discretion is that the courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of Ministers or officials.”
“Therefore, these judgments lead me to the provisional view that the fact that the decision which is challenged was made within the ambit of a statutory discretion and is capable of being described as a policy decision is not in itself a reason why it should be held that no claim for negligence can be brought in respect of it. As I read it this is what is said by the Privy Council in its judgment in Rowling v. Takaro Properties Ltd at p. 501G. It is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion.”
“[t]he greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable”
“It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. This House decided in Barrett v. Enfield LBC... that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion... If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused. Where... a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority’s statutory duty, it has to be asked whether there is any overriding reason in principle why (a) that person should not owe a duty of care... and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable...”
“3. In recent years four House of Lords decisions have been milestones in the evolution of this branch of the law and have helped to clarify the correct approach, without answering all the questions: X (Minors) v Bedfordshire County Council[1995] 2 AC 633 , Stovin v Wise[1996] AC 923 , Barrett v Enfield London Borough Council[2001] 2 AC 550 ; and Phelps v Hillingdon London Borough Council[2001] 2 AC 619 . There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy. In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy. An assimilation of the two enquiries will sometimes produce wrong results.”
“[I]n addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
“To seek a complete logical definition of the generalprinciple is probably to go beyond the function of the judge,for the more general the definition the more likely it is toomit essentials or to introduce non-essentials.”