Culkin v Wirral Independent Appeal Panel [2009] EWHC 868 (Admin)

Case No CO/4997/2006[2009] EWHC 868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 29th April 2009
Before
THE HON MR JUSTICE NICOL
Between
Paul William CulkinClaimantWirral Independent Appeal PanelDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
The Claimant in person for in person(Supported by Mr J Culkin acting as McKenzie Friend)Mr Matthew Stockwell of Counsel instructed by Weightmans LLP Solicitors for DefendantHearing Hearing dates: 6 th April 2009
Judgment
[1]This is a judicial review of the decision of the Wirral Independent Appeal Panel (‘IAP’) to uphold the Claimant’s exclusion from St Mary’s Catholic College, Wallasey. The Claimant was admitted to the College in September 2004 to embark on the first year of his 6th Form course. He was excluded by the Head Teacher, Paul Heitzman, on 12th September 2005 at the beginning of what would have been his second 6th Form Year. The Governors of the School endorsed the decision on 10th October 2005. The Claimant’s appeal to the IAP was heard on 21st March 2006. The hearing of this application for judicial review took place almost 3 years later. By then it was far too late for the Claimant to be reinstated in the College even if the IAP’s decision was flawed by error of law. The Claimant is now in his final year of his university course. Nonetheless he wanted the application to be determined in order to remove what he regarded as an undeserved stigma on his name.[2]The Head Teacher’s reason for excluding the Claimant was summarised in a document which was prepared for the IAP. “Paul’s persistent false and damaging allegations against members of staff. His behaviour poses a danger to the safety and well being of staff and the school community. The relationship of trust between Paul and the school has completely broken down.” As can be seen, the core of the complaint against the Claimant was his “persistent false and damaging allegations against members of staff.” I will need to summarise the difficulties which arose during the Claimant’s year at the College and the disciplinary complaints which were made against him, but it appears to me that the Claimant and his father have at times lost sight of this core feature.[3]On 9th November 2004 ICT technicians at the school became concerned because it appeared to them that the Claimant’s user are had acquired unauthorised access to certain parts of the College’s computer network. The IAP had evidence of the following: that the Claimant was interviewed on 10th November 2004 by Mr O’Loughlin, the Network Manager and Deputy Head, Ms Porter, the Head of Year and Mr Lally, the Assistant Head Teacher; the Claimant’s explanation as to how he had acquired these rights was not accepted; and he was warned that any further unauthorised access would lead to him being denied any access to the College’s network.[4]On 1st December 2004, there was concern that the Claimant had assisted another pupil to gain access to the network although that pupil’s access to the network had been suspended. The panel had statements from the pupil in question and an incomplete statement from a third pupil who was present at the same time. It also had two statements from Mr O’Loughlin and another from Mr Lally who interviewed the Claimant on 1st December 2004 with Ms Porter. Mr O’Loughlin said that the Claimant’s password for the network was taken away.[5]Ms Porter wrote to the Claimant’s father on 6th December 2004 and referred to the fact that the Claimant’s right to access the College’s IT facilities had been withdrawn for a period of 4 school weeks. The Claimant’s father replied in a letter of 8th December 2004. He said that his son had never been admonished or warned about his use of the network. He was not aware that another student’s password had been cancelled. His son was unaware that his own right to access the network had been withdrawn. He alleged that his son had been defamed and implicitly threatened legal proceedings.[6]On 15th December 2004 the Claimant tried to access the network. He did so in the presence of Ms Porter. On 14th January 2005 Mr Heitzman wrote to the Claimant’s father to say that, because of this the Claimant’s exclusion from the network would be extended until 11th February 2005.[7]On 15th January 2005, the Claimant’s father wrote to Ms Porter. He said that neither she nor Mr Heitzman had attempted to ask his son for his version of events. An action for defamation was expressly threatened.[8]On 28th April 2005 Mr O’Loughlin again became concerned at what he believed was the Claimant’s improper access to parts of the network for which he did not have authority. The IAP had further statements from Mr O’Loughlin and Ms Porter in which they said that they had spoken to the Claimant who said that he was looking for the Science folder which contained documents that he wanted to copy to his own user area. On Mr O’Loughlin’s and Ms Porter’s accounts the dispute was not as to what the Claimant had done, but why he had done it. In consequence of this incident Mr O’Loughlin withdrew the Claimant’s right of access to the network.[9]On 11th May 2005 the Claimant’s father met with Mr Heitzman and was given Mr O’Loughlin’s statement in relation to the 28th April matter as well as certain other documents. The Claimant’s father wrote that evening and said the allegations in the document were fabrications. He asked Mr Heitzman to arrange a meeting with Mr O’Loughlin, but Mr Heitman refused.[10]By 15th July 2007 the Claimant’s father had been given the further statements from Mr O’Loughlin that I have referred to above. In a letter of that date the Claimant’s father made numerous allegations that Mr O’Loughlin had made statements which were false. In one case he said expressly Mr O’Loughlin must have known the statement to be false; in other cases the Claimant’s father implied that Mr O’Loughlin knew they were false. The letter said that absent a full retraction and apology, proceedings for defamation would be commenced. This letter was addressed to Mr O’Loughlin at the school. Unknown to the Claimant’s father until some time after the IAP’s decision, this letter never reached Mr O’Loughlin. Mr Heitzman decided that it should not be given to him.[11]The Claimant’s father wrote a chasing letter to Mr O’Loughlin on 5th September 2005.[12]One of the courses which the Claimant was taking was Chemistry. One possible method of assessment for practical work in Chemistry was through students’ coursework. The College had opted for that method. On 8th September 2005 the Claimant’s father wrote to Mr Heitzman. The letter said “Firstly, Paul was not aware he was being assessed on all of the occasions listed.” The School took this allegation seriously. The Claimant was interviewed by the Head Teacher on 9th September 2005. He discussed with the Claimant the relevant letters and statements. The Claimant reiterated that he thought he would be tested for the Chemistry practical by an exam and that the teacher had not told him that some of the work would be assessed as coursework. The teacher concerned was asked to comment. He said that the students had been told that there would be coursework assessment. Two of the students made statements to the same effect. The Claimant was seen again by the Head Teacher on 12th September 2005.[13]The Head Teacher then wrote to the Claimant’s father to say that he was permanently excluding his son from the College. The letter is dated 7th September, but that is obviously an error since the body of the letter contains reference to events after that date. The material part of the letter reads as follows:
"This decision has been taken because of Paul's persistent false and damaging allegations against members of staff. It is not a decision that has been taken lightly, and has been imposed despite steps being taken to avoid exclusion. Paul made a serious allegation against his Year Head in December 2004, following a ban imposed on misuse of the school computer network. I extended the ban on 14th January 2005 after Paul accessed the network during his four-week ban, in defiance of the instructions of Senior Staff. His allegation against his Year Head was thoroughly investigated by the school and found to be false. The conclusions of the school investigation, and the reasons for them, were presented to you during a lengthy meeting with me on 11th May 2005. Paul then made a serious allegation against the school's Network Manager on 15th July 2005, and the allegation amounting to Gross Professional Misconduct against his Chemistry teacher on 8 September 2005. I have investigated both these allegations and found them to be false. Despite every reasonable effort to put a stop to his behaviour, including my meeting and correspondence with you and discussions with Paul on Friday 9th September, and again on Monday 12th September, the allegations remain. This behaviour poses a danger to the safety and well-being of other pupils and staff on the school site, and the school community has to be protected. The relationship of trust between Paul and the school has completely broken down."
[14]On 13th September 2005 the Claimant’s father wrote to Mr Heitzman. He said that there had only been a brief conversation with his son on 9th September when they met in the canteen and no discussion of any substance had taken place on 12th September 2005.[15]As I have said, the Governors endorsed Mr Heitzman’s decision. In his letter of 11th October 2005, the Chair of Governors said:
"The reasons for the Governing Body's decision are as follows: that Mr Heitzman acted correctly and within his powers to protect the safety and well-being of the school Staff and Community. They decided, after giving full consideration to the written and oral evidence presented, that between November 2004 and September 2005 Paul did make persistent, false and damaging allegations against members of staff. They also decided that the relationship between student/parent and the school has completely broken down."
[16]In preparation for the hearing before the IAP Mr Heitzman prepared two documents: one gave a brief summary of the events that had taken place. The other was the document to which I have referred in paragraph 2 above and which particularised the false statements which the Claimant was alleged to have made.[17]The appeal hearing took place on 21st March 2006. It began at about 2.0pm and continued (subject to one or possibly more short breaks) until 8.30pm. In her witness statement, the Chair of the Panel, Mrs Muspratt, said this was unusually long. She had chaired a number of appeals and they usually lasted about 1 -2 hours.[18]The clerk’s notes of the hearing have been transcribed. Under the heading ‘Decision Making’ they include notes of some of the discussions which the panel obviously had amongst themselves after the hearing had taken place. It is clear from these that the Panel considered anxiously whether the activities of which the College complained could be attributed to the Claimant or whether they were the actions of just his father. They clearly considered that the Claimant was responsible, although they seem to have viewed his father’s role as a mitigating factor. They concluded that exclusion was a reasonable response and accordingly the appeal was dismissed.[19]This decision was embodied in a formal record which said "The first limb of the test the Panel must apply in determining this appeal is one of fact, namely, whether Paul was responsible for the incident or behaviour that led to permanent exclusion. Mr Heitzman (Headteacher) submitted that Paul's persistent behaviour warranted Paul's permanent exclusion from the school. The Panel felt that, on the evidence presented to it, Paul was responsible for the behaviour that led to his permanent exclusion from the school. The second limb of the test the Panel must apply is one of judgement, namely, whether permanent exclusion was a reasonable response to the pupil's persistent misconduct. The panel considered the following before reaching its decision: -- Department of Education Guidance on Permanent Exclusions -- The Guidance for Appeal Hearings on Permanent Exclusions The Panel accepted that the Headteacher had attempted to put in place a number of strategies before permanently excluding Paul and concluded that the permanent exclusion was a reasonable response to Paul's persistent behaviour. The Panel decided that allowing the pupil to remain in school would seriously harm the welfare of others in the school. The Panel has therefore decided to uphold the decision to permanently exclude Paul Culkin from St Mary's Catholic College."[20]This Claim for Judicial Review was issued on 16th June 2006. The 1st Defendant is the Appeal Panel and they have opposed the claim. The 2nd Defendants are the Governors of the College. Apart from entering an Acknowledgement of Service which denied any liability, they have taken no part in the proceedings. Permission to apply for judicial review was granted following an oral hearing before Collins J. on 8th January 2007.[21]However, the listing of the substantive application was postponed pending other proceedings. I have mentioned above that the Claimant’s father at various times threatened to issue proceedings for defamation. The Claimant did indeed sue the Governors of the School, Mr Heitzman and Mr O’Loughlin for libel. He accepted that all the statements complained of were published on occasions of qualified privilege. The issue, therefore, was whether any of the defendants acted maliciously. King J. tried the action. He found no malice and the claim was dismissed in, I believe, late 2007. An application for permission to appeal to the Court of Appeal was dismissed on the papers by Sir Henry Brooke.[22]The Claimant has acted in person on this application with the assistance of his father. His complaints can be summarised under the following headings:a. The College failed to identify the conduct which allegedly justified his exclusion.b. The real reasons for his exclusion were things that his father had said or written, but these could not constitute good reasons for excluding him from the College.c. The College should have disclosed to him and the Panel the fact that Mr Heitzman had not allowed the letter of 15th July 2005 to be delivered to Mr O’Loughlin.d. Some of the statements used against him were not signed or dated. In one case the statement was incomplete. The use of statements in this form was contrary to Departmental Guidance.e. The College did not have a School Behaviour Policy as it should have done and the Claimant was disadvantaged as a result.f. There was apparent bias on the part of Mrs Muspratt.g. The Panel applied the wrong standard of proof.h. Mrs Muspratt conducted the appeal hearing unfairly.i. The reasons given by the Panel for upholding the exclusion were inadequate.

The School’s failure to identify the conduct which justified the Claimant’s exclusion

[23]The Claimant and more particularly his father have focussed their attention on whether he did indeed infringe the restrictions on his use of the College’s network. However, as I said at the beginning of this judgment, that was to ignore or to be deflected from the conduct which the School said justified the Claimant’s exclusion. In paragraph 2 I have quoted from the beginning of the 2 page document that was prepared by the College in advance of the IAP hearing. It makes quite clear that the unacceptable behaviour was the repeated false and damaging allegations against members of staff. The document then proceeded to list 12 such allegations that had been made or adopted by the Claimant. In each case the Headteacher identified where that allegation had been made. In many of these cases it had been in a letter or statement from the Claimant’s father. But the College also prepared a summary of what had been said at the meetings between the Claimant and Mr Heitzman on 9th and 12th September 2005. This document made clear the College’s case that the Claimant very largely adopted what his father had said in his various letters and statements.[24]I have also quoted above from the Head Teacher’s letter following the Claimant’s exclusion and from the Governors’ letter upholding the exclusion. Both of those documents also make perfectly clear that the conduct of which the College complained was the repeated making of false allegations about members of staff.[25]The Claimant made a further specific objection under this general heading. He argued that in the course of the hearing the Head Teacher made a new allegation against him – that his conduct was to be equated with violence. This arose in the following way. The Claimant’s father questioned Mr Heitzman as to what he considered was the worst threat to staff. Mr Heitzman replied ‘violence’ and said that he would regard the incidents of malicious behaviour by the Claimant as equal to violence.[26]I do not think that this did amount to a new allegation. It was a vivid way of describing the significance which the Head Teacher attached to the persistent behaviour of the Claimant, but this arose out of the Claimant’s father’s questions. No one understood Mr Heitzman to be alleging that the Claimant had actually been violent.[27]In my judgment there is nothing in the complaint that the College had failed to give the Claimant notice of the case which he had to meet before the IAP.[28]The IAP is obliged to have regard to guidance issued by the Secretary of State – see The Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations SI 2002 No. 3178 reg. 7. The Secretary of State’s guidance is contained in a publication from the Department for Education and Science Improving Behaviour and Attendance (0354/2004). This says at paragraph 21 “Exclusion should not be used for ...(f) punishing pupils for the behaviour of their parents, for example where parents refuse, or are unable to attend a meeting.”[29]The Claimant alleges that this principle has been infringed in his case since the correspondence to which the School took objection came from his father. It was his father who made the threats to sue for defamation.[30]I do not consider that there is anything in this complaint either. The IAP was acutely aware of the DfES Guidance. They referred to it expressly in their decision letter. It is clear from the notes made by the clerk of their post-hearing discussions that they examined this very issue. Both there and in the formal decision letter they concluded that the Claimant was responsible for these false allegations.[31]Nor do I think that their conclusions in this regard could be characterised as irrational. In his letters, the Claimant’s father was speaking of events which he had not personally witnessed. The obvious, and indeed only possible, source of his information was the Claimant. So, for instance, when in the letter of 8th December 2004 the Claimant’s father said “[Paul] has never been admonished or warned about his use of the network” or when in the letter of 15th July 2005 the Claimant’s father denied the conversations that Mr O’Loughlin said had taken place with the Claimant on 28th April 2005, his father was either relying on what the Claimant had said or he was making this up. There was certainly material on which the IAP could discount the second alternative because in his meetings with the Claimant on 9th and 12th September 2005 the Head Teacher went through his father’s letters and statements and asked for his comments. With hardly any exception the Claimant endorsed what his father had said.

Non-disclosure of the delivery of the 15th July 2005 letter to Mr O’Loughlin

[32]It was only during the defamation proceedings and well after the IAP hearing that the Claimant discovered that Mr O’Loughlin had not received his father’s letter of 15th July 2005. He argued that if the Panel had known that this had not been delivered to its addressee, it might have made a difference.[33]I fail to see what difference disclosure of this fact could have made. It was argued that Mr O’Loughlin might have capitulated and agreed that he was wrong if he had received that letter. But that, with respect, is fanciful. The Claimant referred me to evidence which Mr O’Loughlin gave at the defamation trial as reflected in the judgment of King J. However, the passage in question showed the Claimant pressing Mr O’Loughlin to concede that only he or his staff could have placed administrator’s access rights on the Claimant’s account in November 2004. It did not show Mr O’Loughlin agreeing with that proposition. In any case, this is another example of the Claimant and his father reverting to the issue of whether he had misused the College’s computer network rather than the real issue of the allegations made by the Claimant and his father against school staff members.[34]The Claimant’s father wrote his chasing letter of 5th September when he received no reply to his letter of 15th July 2005. If the Panel had known that Mr O’Loughlin had never received that earlier letter, they might have had a marginally more complete picture of the situation. But in my view it would have been of no great significance and the absence of that piece of information did not mean that the Claimant was treated unfairly.[35]The DfES Guidance says at paragraph 117:
"All witness statements must be attributed and signed and dated, unless the school has good reason to wish to protect the anonymity of pupils, in which case they should at least be dated. The general principle remains that an accused person is entitled to know the substance and the source of the accusation. The Panel must consider what weight to attach to written statements, whether made by adults or pupils, as against oral evidence. They should bear in mind that a written statement may not encompass all the relevant issues, nor can the author be interrogated."
[36]The Claimant observes that the statement of the pupil who allegedly witnessed the Claimant assist another boy to circumvent the absence of his password (see paragraph 4 above) was neither signed nor dated. The statement of the pupil concerned was signed but not dated. Some of the statements of staff members lacked a handwritten signature or a date.[37]The DfES Guidance does not seek to establish a mandatory rule for the admissibility of evidence before an IAP. The “general principle” was observed in every case i.e. in each case the Claimant knew the substance and source of the accusation. It was open to him to make submissions to the Panel as to the reduced weight which they should attribute to the statements in view of their deficiencies in form. The shortcomings to which he points do not mean that the Panel erred in law in taking them into account.

Absence of a School Behaviour Policy

[38]The Guidance Notes for the Independent Appeals Panels Hearing Exclusion and Reinstatement Appeals produced by Wirral Borough Council say at paragraph 3(k):
“In determining [whether exclusion is a reasonable response] the Panel should consider whether the following questions are relevant to the particular circumstances of the case….(k) has account been taken of the school’s published behaviour policy?”
The clerk’s notes of the post-hearing discussion record in relation to this matter “could not find out”. That seems to have been because the College did not have a School Behaviour policy at the time.[39]I was unclear as to where this submission was leading. It was not and could not be suggested that in the absence of such a policy it was legally impossible for any pupil to be excluded. The opening words simply required the Panel to consider whether the matters set out in the subsequent subparagraphs were relevant. The Panel did that in this case. Since there was (apparently) no policy, it could not be taken into account. There was nothing in this which made its procedure unlawful or unfair.

Apparent Bias on the part of Mrs Muspratt

[40]Before the Claimant moved to St. Mary’s Catholic College he had at one time been at school at St. Anselm’s Catholic College. He complained that he had been libelled while he was there and brought defamation proceedings against (amongst others) Brian Cummings who was Chairman of the Governors of St. Anselm’s. The action had been settled. The Claimant understood that Mrs Muspratt had worked with Mr Cummings on the Lower Bebington School Lands Foundation.[41]Mrs Muspratt’s witness statement for the present proceedings agreed that she knew Mr Cummings. He was a Conservative Party member of the local council. She was a member of the Labour Party and the agent for her local ward. She had met him in that context and sought his support on a local issue in 1999. They had both sat as trustees of the Lower Bebington Lands Foundation but only attended one meeting together. She had sat on occasional Independent Appeals Panels with Mr Cummings. He lived about ¼ mile from her and they met occasionally in the local neighbourhood.[42]The test for apparent bias is now encapsulated in the test set out by Lord Phillips MR in In Re Medicaments and Related Classes of Goods (No “) [2001] 1 WLR 700 at pp.726-727 "85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased." This formulation has since been approved by the House of Lords in Magill v Porter [2002] 2 AC 357 at para 102-103.[43]In my judgment if a fair-minded observer was informed of the matters set out in Mrs Muspratt’s witness statement and which I have summarised above, he or she would not think that there was a real possibility or real danger that she was biased against the Claimant. Mrs Muspratt’s contacts with Mr Cummings were marginal in any event. As importantly, Mr Cummings had nothing to do with the matter which she had to consider as Chair of this IAP. There was no real possibility that her slight connection with him and his slight and historic connection with the Claimant would combine to produce a real possibility of animus by her against the Claimant. The Claimant reminds me of the remarks by Lord Woolf in R v Gough [1992] AC 646 at p.672 as to the insidious nature of bias which means that a person may be unconsciously affected by it. That, of course, is true. But it is one reason why apparent bias (applying the Medicaments test) is an alternative form of legal error to those rare cases where actual bias can be proved.

The Panel applied the wrong standard of proof

[44]The clerk’s notes of the post-hearing discussion say:
“Governors have proved on the balance of probabilities that the pupil was responsible for the incident and behaviour which led to exclusion.”
That accorded with Wirral BC’s Guidance Notes which said that the Panel should apply this standard of proof in deciding whether the pupil was responsible for the incident or behaviour that led to exclusion.[45]The Claimant argues, however, that the Head Teacher and staff of the College had accused him of accessing parts of the network for which he did not have authority and this was, in effect, an accusation of a criminal offence under the Computer Misuse Act 1990. Since that was the case, he argues, the Panel should have reminded itself of the principle that the seriousness of the misconduct alleged is a matter to be taken into account in deciding whether the “balance of probabilities” standard is satisfied – the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established – see R (S) v Head Teacher of Claremont High School [2001] EWHC 488 (Admin) at para 17 citing Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at p.586.[46]Here again, I fear, the Claimant has allowed his attention to be diverted from the real gravamen of the College’s reason for exclusion. It was not so much the improper use of the network as the repeated accusations that the School staff had made false allegations about him and the breakdown of trust between the College and the Claimant. Of course to justify exclusion misconduct must always attain a certain degree of seriousness, but the DfES Guidance paragraph 120 which addresses the standard of proof does not suggest that the Re H gloss will invariably be applicable. Wirral’s Guidance Notes, as I have said, direct IAPs to the civil standard of proof without more. In my judgment the Panel in this case did not apply the wrong standard of proof. It was not, in the circumstances of this case, incumbent on it to look for evidence of particular probative strength before it could be satisfied to the ordinary civil standard.

Mrs Muspratt conducted the hearing unfairly

[47]The Claimant’s father has adduced a lengthy witness statement which goes through the clerk’s notes of the hearing and argued that in several places they showed (or in some cases should have showed) that: Mrs Muspratt unfairly truncated a line of questioning which he wished to pursue with Mr Heitzman; she intervened too readily to help Mr Heitzman in the course of his evidence; and she improperly curtailed lines of argument which the Claimant’s father wished to develop.[48]I have carefully considered this statement as well as the written and oral submissions by and on behalf of the Claimant. The Chair of a Panel who is conducting such a hearing as this is entitled and obliged to see that questioning and submissions are directed at matters which are relevant to the issues that the Panel has to decide. It will be necessary sometimes for the Chair to intervene to prevent irrelevant or repetitious questioning. While the Claimant is entitled to a fair hearing, it has to be recognised that decisions of this kind call for a degree of judgment. That judgment is exercised in the immediate context of a hearing whose flavour cannot easily be conveyed in proceedings for judicial review. I remind myself as well that, while Mrs Muspratt had experience of holding hearings of this type, she was not (as far as I am aware) a lawyer. Nonetheless, I have reviewed the evidence before the Court to see whether in my opinion the Claimant had a fair hearing.[49]I conclude that he did. I was not persuaded that any of the individual examples which were given by the Claimant or his father showed unfairness. Still less do I consider that overall the Claimant was treated unfairly. I also recall that this was a lengthy hearing (much longer than in Mrs Muspratt’s experience would be usual). It included extensive questioning of the Head Teacher and gave the Claimant’s father adequate opportunity to develop the relevant submissions that he wished to make.

Inadequate reasons

[50]Paragraph 14 of the Schedule to the 2002 Regulations provides:
“The decision of an appeal panel and the grounds on which it is made shall (a) be communicated by the panel in writing to the relevant person, the local education authority, the governing body and the Head Teacher…”
[51]I have quoted the Panel’s decision in paragraph 17 above. The Claimant submits that this did not fulfil its obligation under the Regulations to provide the grounds on which the Panel reached its decision. It was unspecific as to the conduct for which it considered he was responsible and said very little about why permanent exclusion was justified. Mr Stockwell on behalf of the Panel says that because the decision was addressed to the parties, it can be assumed that they were aware of the issues. With the knowledge that they brought to bear, the decision letter was clear and fulfilled the duty to give reasons.[52]I have found this aspect somewhat more troubling. The decision letter is very spare and, in itself, communicates very little. Mr Stockwell correctly pointed out, that Laws J. in R v Northamptonshire County Council ex parte W [1998] ELR 291 found a very brief statement by an appeal panel (that the Claimant was responsible for the actions which led to his permanent exclusion) gave legally sufficient reasons for that aspect of the decision. The parents had not been misled and could have been in no doubt that the Panel was finding the case proved.[53]However, in the same case, Laws J. was more troubled by an equally brief conclusion that “Permanent exclusion was, in the circumstances, a reasonable course of action for the school.” He was unconvinced by an argument that permanent exclusion must have been upheld for the same reasons as were given by the Head Teacher, or that the parents were well aware of the issues. In the opinion of Laws J. that came close to saying that the Committee would then be relieved of its duty to give reasons which could not be right.[54]I do think, though, that I am entitled to consider the clerk’s notes of the Panel’s decision-making. This was the course followed by Burton J. in W v Independent Appeal Panel of the London Borough of Bexley [2008] EWHC 758 (Admin). As he noted at paragraph [36] none of the grounds for being cautious about admitting ex post facto reasons on an application for judicial review apply to these notes. >From the notes in this case, it is quite clear that the Panel (like the Head Teacher and the governors before them) were concerned with the allegations which had been made against members of the staff of the College. As I have already said, they squarely faced up to the principal issue in the case, namely were these allegations properly to be attributed to the Claimant as opposed to his father. They concluded that they were. Both the notes and the decision letter itself explain the sanction of exclusion by reference to the persistence of the conduct and the impact which this could have on the welfare of others in the school.[55]Overall, therefore, I reject this ground of challenge as well. I would, however, recommend that any future Appeals Panel consider providing rather more detail in the decision letter itself than was the case on this occasion. The Regulations entitle the parties to a timely as well as a reasoned decision. To the extent that there has been any default in that regard, I would not give any relief bearing in mind the time which has elapsed since the decision, the lack of any practical benefit and the fact that legally adequate reasons did exist.

conclusion

[56]In consequence, none of the grounds of challenge have succeeded and this application for judicial review is dismissed.