Cunningham, R (on the application of) v Sacred Heart School [2009] EWHC 2051 (Admin)

Case No CO/4428/2009

[2009] EWHC 2051 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

Date Friday, 31 st July 2009

M3 3FX

Before

MR JUSTICE SIMON

Between

The Queen on the Application of CUNNINGHAMClaimant

SACRED HEART SCHOOLDefendant

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

The Claimant appeared in person. for in person

Mrs Thompson appeared for Defendant.

Judgment

[1]This is a claim for judicial review of a decision made by the defendant, the governing body of the Sacred Heart Roman Catholic Primary School, but specifically directed to a decision that was made on 13 October. There were two other decisions which directly impacted on the claimant, Mr Cunningham, one contained in a letter of 28 November 2008 which dismissed him as head teacher of the school, and the second contained in a letter of 12 February 2009 which upheld the first decision and dismissed his appeal.

[2]The basis for the claim is that when the governing body of the school decided on 13 October 2008 to establish the three-person panels which made the decisions respectively on 28 November and on 12 February, it was improperly constituted.

[3]Before coming to deal with what is a confined legal issue, it is necessary to set out some of the factual background. The claimant had been a head teacher at the school since April 1995. In January 2008 he was suspended from his position as a result of complaints which had been made against him. One of the allegations was of financial mismanagement. Mr Cunningham has today spoken eloquently of his sense of devastation at what occurred and his sense of outrage at the way he was treated after long and devoted service to the school.

[4]The complaints were referred to the school’s Disciplinary and Complaints Committee, (“the DCC”) to be considered in accordance with the Catholic Education Service (“CES”) procedure. The CES procedure required that the DCC, consisting of three governors, be convened to hear such complaints. A difficulty arose because of a perception which in the event proved to be the case (see page 100 of the bundle) that the claimant might contend that any irregularities which formed the basis of the charge of mismanagement against him were matters of which the governing body was aware. In an endeavour to avoid an objection of actual or perceived bias in a tribunal made up of members of the governing body, certain steps were taken at a meeting of the governing body held on 13 October 2008. In summary, it was agreed that three foundation governors would be removed temporarily from the governing body and three foundation governors appointed for the duration of the DCC hearing. These new governors would be independent in the sense that they had not previously been members of the governing body.

[5]A “foundation governor” is defined in regulation 8 of the School Governance Constitution (England) Regulations (“the 2007 regulations”) as a person who is appointed as a governor otherwise than by a local education authority, and who is appointed for the purposes of securing the character of the school, including its particular religious character. Also relevant is the definition of “parent governors” at regulation 4. These are defined as those who are elected as governor by parents of registered pupils at the school, and are themselves such a parent at the time when he is elected.

[6]The DCC hearing took place on 25 and 26 November 2008. The claimant had made representations that the hearing should not go ahead due to his ill health. It seems that those representations were considered but a decision was made to go ahead in any event in his absence. In the event the DCC found the allegation against the claimant proved and dismissed him for gross misconduct.

[7]It is unnecessary to consider the details of the allegations. The basis of the complaint in these proceedings is a complaint about the constitution of the governing body which set up the DCC panel and the appeal panel on 13 October 2008. It is not a complaint as to the constitution of the DCC or appeal panel, nor as to the fairness of the process, nor as to the proper basis of the decision made. After being informed of the decision the claimant wrote through his union representative expressing a wish to appeal the DCC decision on the basis that, first, it was unfair to proceed in his absence in the light of the evidence that he would not be able to attend, and secondly, his absence had rendered the hearing unfair, since the panel had not heard his side of the story.

[8]The appeal took place on 10 February 2009 before a similarly constituted body of governors who had been brought in for the purposes. The claimant’s representative took a preliminary objection that the members of the appeal panel were not governors of the school and would not be recognised. It was explained that these governors had been co-opted for the sole purpose of hearing the appeal. The claimant decided not to participate in the appeal claim and took no further part in the proceedings. As already noted, the appeal was dismissed in a decision letter of 12 February 2009.

[9]The original basis of the claim was advanced on a broad front, but when granting permission to bring these proceedings, Irwin J confined permission to a single point: whether the governing body which itself appointed the DCC and the appeal panel was properly constituted.

[10]The Instrument of Government makes provision for how the governing body of the school is made up. It is intended to reflect the terms of the 2007 regulations. By clause 5 of the Instrument of Government, the governing body was to consist of:(a) two parent governors;

(b) one local education authority governor;

(d) eight foundation governors, of whom three “shall, at the time of their appointment, be eligible for election or appointment as Parent Governors”. By clause 7, foundation governors were to be appointed and might be removed by the Bishop of Salford or any other person exercising ordinary jurisdiction on his behalf. There is no issue as to the legitimacy of the appointment and removal by the Bishop of Salford in accordance with the decision in October 2008 to constitute the DCC and the appeal panel.

[11]The claimant’s complaint is that there were insufficient foundation governors on the governing body who were also eligible for election or appointment as parent governors. I will return to the detail of that contention, and the relevant facts, later in this judgment. So far as relevant, the 2007 regulations provide by regulation 12(1):

“The instrument of government of a school is to specify the size and membership of the governing body, which is to be no fewer than 9 and no more than 20 governors.”

As already indicated, the Instrument of Government provided for 13 governors. By regulation 18(1):

“The governing body of a voluntary aided school is to comprise the following: (a) at least one but no more than one tenth LEA governors; (b) at least two but no more than one third staff governors; (c) at least one parent governor; (d) such number of foundation governors as out number all the other governors listed in subparagraphs (a) to (c) by two; and (e) such number of foundation governors who are eligible for election or appointment as parent governors that, when they are counted with the parent governors, comprise one third or more of the total membership of the governing body.”

This, as I say, is the formula which is applied by the Instrument of Government.

[12]Schedule 1 of the 2007 regulations deals with the election and appointment of parent governors. Paragraph 10(1) provides, so far as is material:

“…the governing body must appoint as a parent governor— (a) a parent of a registered pupil at the school; (b) a parent of a former registered pupil at the school; or (c) a parent of a child under or of compulsory school age.” governor— Paragraph 10(2) of schedule 1 provides that: “The governing body may only appoint a person referred to in sub-paragraph (1)(b) or (c) if it is not reasonably practicable to appoint a person referred to in the sub-paragraph which immediately precedes it.”

Paragraph 10(2) of schedule 1 provides that:

[13]While the 2007 regulations deal with the issues relating to the constitution of the governing body, issues relating to the procedural aspects of the governing body are dealt with by the School Governors (Procedures) (England) Regulations 2003 (“the 2003 regulations”). Paragraph 12(1) is headed “Proceedings of the Governing Body”. Subparagraph (5) provides:

“The proceedings of the governing body of a school shall not be invalidated by - (a) any vacancy among their number; (b) any defect in the election, appointment or nomination of any governor”

These provisions have been referred to as the “statutory saving principles”.

[14]The claimant, who appears in person today, submits that at the time the governingbody made the decision on 13 October 2008 to establish the DCC and the appeal panel, it should have had at least three foundation governors, who at the time of their appointment were eligible for election or appointment as parent governors. He submits that, in contravention of clause 5(d) of the Instrument of Government and regulation 18(1)(e) of the 2007 regulations, at the relevant time the governing body did not consist of eight foundation governors, of whom three were at the time of their appointment parent governors.

[15]For the defendant, Mrs Thompson submits that there were three foundation governors on the governing body who were eligible to be parent governors, Messrs Walsh, Mercer and Kenyon. All three were eligible to be elected or appointed parent governors at a time when they had children at the school. After their children left the school, they had continued to act as foundation governors under section 10(1) of Schedule 1 of the 2007 regulations.

[16]Secondly, she submits that foundation governors do not actually have to be parent governors for the governing body to be properly constituted. They only have to be eligible to be appointed as parent governors: see regulation 8(1)(e) of the 2007 regulations.

[17]Thirdly, Messrs Walsh, Mercer and Kenyon were eligible to be appointed as parent governors after their children left the school in a situation where there were not sufficient parents of current pupils who were willing to fill the vacancy. Mrs Thompson relies on the “not reasonably practicable” test in paragraphs 10(1)(e) and 10(2) in Schedule 1 of the 2007 regulations. She refers to the evidence from Messrs Robertshaw and Lochery as to the difficulty in finding suitable foundation governors.

[18]Fourthly, she submits that the defendant is entitled, in any event, to rely on the statutory saving. If there were a defect in the appointment of Messrs Walsh, Mercer and Kenyon or indeed if there was a vacancy in the number of governors, then the statutory saving was plainly intended to apply in such a case.

[19]Fifthly, and finally, she submits that even if there had been a procedural breach, the court should not grant what is discretionary relief. First, there was delay in bringing the proceedings. Secondly, the breach complained of was immaterial since the claimant chose not to participate in the appeal process because he was concerned about the co-option of foundation governors, and this ground of complaint in the judicial review proceedings has been dismissed. Thirdly, the claimant has a sufficient remedy in the employment tribunal proceedings which he has begun and in which he seeks both reinstatement and compensation.

[20]In answer to these points, the claimant submits, first, that a foundation governor who is eligible to be a parent governor can be a parent of an ex-pupil only if it was not reasonably practicable to appoint a parent: see paragraph 10(1)(b) and 10(2) of the 2007 regulations. Secondly, the statutory saving does not apply in a situation where there are a sufficient number of foundation governors, but not enough of those are parents. He also relies on a decision of Brooke J, as he then was, in a case called R v Secretary of State of Education ex parte Prior, which has no further reference. He showed me a transcript in which Brooke J made these observations:

“…the law requires that the proceedings should be conducted by a body to whom the governors have lawfully delegated their powers, and that they should be conducted in accordance with the principles of natural justice. The more emotionally charged the circumstances leading up to dismissal hearings, the more important it is that the dismissal procedures should be conducted fairly and in accordance with law.”

Mr Cunningham draws attention to the importance of procedures being conducted in accordance with law.

[21]I have come to the following conclusions in relation to this matter, having taken into account the written submissions and the oral argument today. First, there are good reasons why the governance of schools is carefully and extensively regulated as it is. Decisions made by a governing body which is not properly constituted are properly matters for careful scrutiny. It was doubtless for this reason that Irwin J gave permission in this case. Second, the governing body of a school bears a heavy responsibility for the success of the school and the wellbeing of its pupils and staff. Being a foundation governor will involve time and responsibility without a financial reward. The evidence in this case is that few people are prepared to do it. The school, like others no doubt, has difficulty in appointing governors. As Mr Lochery, the Diocesan Director of Education for the Salford Diocese puts it, in paragraph 5 of his statement:

“It is extremely difficult to attract and retain foundation governors.”

At paragraph 6 he says this:

“Foundation governors must be practising Catholics and, sadly, falling attendances at Mass is the current trend. Similarly, young parents with children of school age rarely have the time to devote to the duties of being a foundation governor. It is therefore common practice for older, past parents of pupils of the school, to carry on. When an active foundation governor becomes involved in the life of the school, their presence is cherished and it is commonly decided to retain their services for as long as they are able to carry on. It is, frankly a struggle, to fill foundation governor numbers in many schools. Sacred Heart School is no exception.”

In his witness statement, Mr Robertshaw, the acting Head Teacher of the school, puts it thus in paragraph 3:

“In my experience, it is extremely difficult to appoint parents to the general ‘parent governor’ category and foundation governors who would also be eligible for election or appointment as parent governors are hard to appoint. The position of governor is an unpaid, voluntary role which is time-consuming and tends to appeal to mainly retired people who have sufficient spare time to devote to the demands of the role. 4. The role of a governor involves attending the meetings of the Governing Body and its relevant committee meetings, school assemblies and also to spend time with individual classes as governors are linked to specific classes. 5. The identification of suitable foundation governors who would also be eligible for election or appointment as parent governors is a matter for the parish priest, who would recommend parents to the Bishop. Father Tubman had been the school parish priest for approximately ten years until he retired due to ill health prior to Easter 2009. He had been suffering from ill health for some time and he struggled to attend school for Masses. I estimate he was only able to attend the school about three or four times a year. Father Tubman’s deteriorating health, and the fall in the number of people attending the church has made it extremely difficult to identify suitable and willing members of the church congregation that are parents of current pupils of the school.”

Despite this evidence, it is clear that the Diocese was aware of the constitutional problems raised. Mr Cunningham has shown me a letter written about July 2006 from the Diocese addressed to the school, indicating that the Diocese was aware that the governing body had not been properly constituted by reason of not having sufficient parent governors.

[22]Thirdly, it appears that Mr Walsh and Mr Mercer were, at the time of their appointment as foundation governors, eligible for election as parent governors under paragraph 10(1)(a) of Schedule 1 of the 2007 regulations. From a recent witness statement from Mr Kenyon, it appears that he would have been eligible to be appointed as a parent governor as a parent of a former pupil under paragraph 10(1)(b) if it was not reasonably practicable to appoint a parent of a pupil at the school: see paragraph 10(2) of Schedule 1.

[23]Fourthly, the evidence indicates serious difficulties in appointing foundation governors, but it also suggests that too much reliance may have been placed on the parish priest in recruiting foundation governors. It must have been clear that the parish priest was not able to fulfil the duties which the Diocese expected of him.

[24]Fifthly, I am very doubtful that the repeated appointment of the same foundation governors many years after their children left the school (on the basis that they were once eligible as parents of children of the school) and treating them as foundation governors eligible to be appointed as parent governors, is consistent with either the Instrument of Government or the 2007 regulations, even where there were difficulties in recruiting foundation governors. I bear in mind Mr Cunningham’s submission that it was important to have parent governors and that parents are essential to the proper governance of the school. He submits that there was no problem in electing parent governors. That appears not to be common ground.

[25]I am not persuaded that the illness of the parish priest or the difficulties in recruitment meant that it was not “reasonably practicable” to appoint a current parent. It seems to me that to satisfy that test, practical steps have to be shown to have been at least considered, and none were. I should, however, say that I do not accept that deficiencies in the membership of the governing body on 13 October 2008 such as they were, were a deliberate contrivance to the prejudice of the claimant. Sixthly, however, even if the governing body were not properly constituted for those reasons, in my judgment it is clear that the statutory saving comes into play. The intent of this provision to avoid the inconvenience and disruption which would result from unravelling decisions and transactions of governing bodies, perhaps many years later, as a result of a technical defect in the appointment of the governors; in the present case the appointment of a governor who, on the present hypothesis, was not eligible to be a parent governor.

[26]I have therefore come to the conclusion that the proceedings of the governing body on 13 October 2008 are to be regarded as valid and the attempt to quash their decision fails. I would add that even if I had accepted the claimant’s argument on this point, I would have been inclined to refuse the relief as a matter of discretion. Even if the claimant were unaware of the status of the foundation governors and the problems this might pose, the objection which the claimant chose to make was an objection to the constitution of the DCC. If such a claim had been pursued promptly, although it would have failed at the permission stage for the reasons given by Irwin J, it would have given rise to the present argument in respect of which permission was granted. Instead of bringing the proceedings promptly after 28 November, the claimant decided to appeal on the merits and waited until 8 May to bring the proceedings; very considerably outside the three-month period for bringing judicial review proceedings. I would also have refused the claim on discretionary grounds, since the claimant plainly has a claim which is presently proceeding in the employment tribunal, which, if successful, may result in reinstatement and/or compensation. The present claim, even if successful, would have achieved very little, other than further expense and delay in resolving such substantive issues between the parties as there are.

[27]For all these reasons, the claim for judicial review is dismissed.