SA v London Borough of Camden & Ors [2013] EWHC 3152 (Admin)

Case No CO/5966/2012[2013] EWHC 3152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/10/2013
Before
MRS JUSTICE NICOLA DAVIES DBE
Between
SAClaimantLONDON BOROUGH OF CAMDEN INDEPENDENT APPEAL PANELDefendant
Mr David Wolfe QC (instructed by Lawrence & Co. Solicitors) for ClaimantMr Tom Cross (instructed by Mrs Biddulph, solicitor, London Borough of Camden) for DefendantHearing Hearing date: 10 October 2013
Judgment
[1]The claimant SA, by his litigation friend MA, challenges the decision of the London Borough of Camden Independent Appeal Panel (the “IAP”) dated 12 March 2012 which upheld his permanent exclusion from H School, London NW3. The exclusion decision was made by its head teacher on 12 December 2011 following an alleged incident out of school on 18 November 2011 and was also made upon the basis that the school could no longer meet the claimant’s needs. Nine grounds of challenge are relied upon by the claimant. Permission was granted upon Ground 1, the issue of permission on Grounds 2 to 9 was adjourned to the substantive upon hearing Ground 1. With the consent of the parties, this Court heard submissions in respect of Grounds 1 and 2: Ground 1 The unlawful failure of the IAP to give reasons for not giving effect to the agreement between the parties and misdirected itself in law in concluding that it was required to reach its own decision (rather than give effect to the agreement between the parties unless there was good reason not to do so); Ground 2 Procedural unfairness in proceeding with the IAP hearing despite the agreement between the parties, without giving them the opportunity to make oral representations, including representations relating to why the agreement should be followed and why the IAP was not required to decide for itself.[2]The claimant seeks to quash the decision of the IAP and to remit the matter for lawful consideration by a new Panel. There is no wish on the part of the claimant to return to H School. The purpose of these proceedings is to remove the ruling of “permanent exclusion” from the educational record of the claimant. By December 2011 the head teacher was clear; the claimant could not return to H School.

Background

[3]The claimant is now aged 15 and has been diagnosed with ADHD. At the relevant time he did not have a Statement of Special Educational Needs but the diagnosis is not disputed nor is the fact that he has considerable needs which require support. The claimant entered Year 8 in H School (“the School”) in June 2011. In the second half of the autumn term of Year 9, his behaviour rapidly deteriorated. On 4 November 2011 he received a fixed term exclusion of 5 days following an incident in which he threatened to stab a school police officer in the face and used abusive language towards the officer. The claimant returned to the School on 9 November 2011 following which a number of incidents occurred involving disrespectful or abusive language towards members of staff. During the weekend of 18 November 2011, it is undisputed that the claimant visited a female student at her home. What happened thereafter is disputed by the claimant. The female student alleging that the claimant had tried to kiss and touch her, the claimant maintaining it was only “play fighting”. On 22 November 2011, the claimant refused to come into a class when he was speaking on a mobile telephone. At a meeting later that day with a female member of staff the claimant used explicit sexualised language about himself and staff members.[4]On 5 December 2011, the head teacher wrote to Brent’s Pre-Exclusion Officer. The letter stated that the claimant was:
“….. a significant cause for concern and at present receiving home tutoring whilst we consider a plan of actions to meet the complex learning and behavioural needs he has …… Given the little information we have on (SA) it is difficult to quantify what his educational needs are, although from observations an (sic) behaviours it is apparent that the needs are multiple and too complex for a mainstream school to deal with. There is enough evidence to permanently exclude (SA) from H School and, whilst I am reluctant to do this, it may be the only option available in order for Brent LA to accept responsibility for (SA’s) education. Also, permanent exclusion does not really address the issue. What is required is a full assessment if (sic) his learning and educational needs and a comprehensive package that includes therapeutic interventions. We therefore suggest that a cross borough professionals meeting is essential to discuss this young man’s complex needs and an appropriate package to support him both educationally as well as emotionally ….. ”

Within the Guidance is the following:

[5]On 12 December 2011, the head teacher wrote to the claimant’s mother permanently excluding him from the School. The letter stated:
“….. I had hoped that we could have moved (SA) for assessment and more therapeutic support without permanent exclusion and have been in touch on a number of occasions with Brent Education Department and Social Services. On the advice of Brent’s Pre-Exclusion Officer, Easter Russell, to access appropriate support through Brent’s Pupil Referral Unit I am permanently excluding (SA) from today, as this is the only way in which his needs can be assessed and ultimately met. There is enough evidence permanently to exclude (the claimant) from H School and whilst I am reluctant to do this, it may be the only option available in order for Brent LA to accept responsibility for (SA’s) education. …..”
[6]On 17 January 2012 the School’s Governing Body considered the claimant’s exclusion. At the meeting, the head teacher was invited to state his reasons for the permanent exclusion and the minutes record his reasons as follows:
“The school had tried its best to avoid permanent exclusion. Contact had been made with both Camden and Brent in an effort to avoid permanent exclusion. However, we have been unable to get a package of support however we are resolute that he cannot return to H School. We are happy to find a resolution that would ensure that a PRU is not the only option. SA is not a Camden resident. If he was he could go to 115 to be assessed. He could stay there or find an appropriate alternative. There have been conversations with the Pre-Exclusion Officers but it is perverse that we cannot find a solution. If there is no alternative we’re not prepared to have him back here. It is relevant that he does live outside the Borough. A managed move to the PRU was attempted but it is only possible if you are resident in the Borough. He needs a destination. If he was referred to a Fair Access Panel he could move to another school in Camden. If he went to another school how could we be sure it would make a difference. ……”
[7]At the meeting the claimant’s mother remarked that the claimant had been turned down for assessment to which the head teacher responded:
“It is difficult for you – and we have tried to be sensitive. The system is inflexible. It does seem unfair. The PRU would assess via the Educational Physiologist – to achieve that we have to do a Permanent Exclusion. It doesn’t make sense. Meeting around the table is more humane.”
The head teacher explained that “the permanent exclusion is as a result of continued breaches of the school, the behaviour policy, he poses a risk to the welfare of adults and students in school”. He said that he had permanently excluded the claimant when he knew he had no other option. Specifically the head teacher said “we do not have the resources to meet his needs at H School. SA cannot return. H School acted in his best interest …”.[8]On 17 January 2012, the Governors confirmed the permanent exclusion. On 8 February 2012, the claimant and his mother appealed that decision to the IAP. They did not seek his reinstatement into H School nor did they oppose the need for the claimant to be properly assessed and obtain more support. Their concern was at the use of permanent exclusion as the means of achieving proper assessment and increased support.[9]By a letter 20 February 2012, the head teacher of the School wrote to the solicitor acting on behalf of the claimant having received the notice of appeal. The letter records:
“ …. I note that (MA) is not seeking to have (SA) reinstated into H school. In the interest of proportionality, and having consulted the Governing Body, I would be willing to agree to the Independent Appeal Panel recording that because of exceptional circumstances or for other reasons that is not practicable to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction …”

Constitution and Procedure of Appeal Panels

[10]The claimant’s solicitor, in writing, asked the head teacher to clarify that “in the circumstances, you would not object to the Independent Appeal Panel overturning the permanent exclusion on the basis that he is not reinstated due to exceptional circumstances”. In a letter dated 22 February 2012 to the claimant’s solicitor, the head teacher stated “… please accept confirmation that in the circumstances I would not object to the Independent Appeal Panel overturning the permanent exclusion on the basis that he is not reinstated due to exceptional circumstances …”.[11]The claimant and the School were agreed as to the outcome which they wished to achieve but there was concern as to how this could best be done. The position was described in the witness statement of Rachael Knowles, the claimant’s solicitor, as follows:
“5. ….. given the unusual circumstances, it was not immediately obvious what the correct approach should be to give effect to the agreement. Were the proceedings before a Court, a consent order could have been drafted accordingly. 6. The local authority did suggest that one option would be for the Claimant and his mother to withdraw the appeal. However, this would only have been a viable approach where the Governing body and Headteacher could also have withdrawn their decision to permanently exclude the Claimant …… 8. It appeared therefore that the Governing body and Headteacher of H School did not have the requisite power to give effect to the agreement we had reached to withdraw the exclusion without reinstatement, which in turn would have meant the Claimant could have withdrawn his appeal. H School sought legal advice and agreed that it had concerns as to ‘whether this would be lawful’, ….. 9. Because of these concerns, both parties reached the conclusion that the best route forward would be for us to draft a letter to the clerk to the Independent Appeal Panel setting out our agreement. I drafted the letter in cooperation with the School’s legal representative …. All parties signed the agreement and it was sent to the clerk, Ms Dowuona by the Headteacher on 27 February 2012 ….”
[12]The letter dated 24 February 2012 was signed by the solicitor, the head teacher and the Chair of the Governors. The letter was sent to the clerk to the IAP by the head teacher on 27 February 2012. In the email which accompanied the letter, which was before the IAP at its meeting, he stated:
“….. After much further thought we have decided to send the attached letter to the panel and both parties feel that this would be the most appropriate outcome if it is deemed lawful. I would be grateful if this could be forwarded to the panel for their consideration. Neither the school or the appellant intend to attend the IAP. I understand that this is an unusual step for the IAP to consider, but I do believe that it is in the best interests of the young man concerned. Thank you again for your patience and professional support over this particular case ….”
The “agreement” letter contained the following:
“It is common ground between the parties that SA’s special educational needs will be more appropriately addressed at an alternative provision and that he will not be returning to H School. We have therefore reached an agreement as to how this appeal should be disposed of and would respectfully propose that the permanent exclusion is overturned on the basis that SA is not reinstated due to exceptional circumstances. We would respectfully request that a direction is made accordingly by the Panel. The parties are all legally represented and have reached this compromise with the benefit of independent legal advice. Given the agreement reached, the school does not propose to file any evidence. The parents’ representative has already filed submissions prior to the agreement being reached. Given that the parties have reached an agreement, it is suggested that neither party should attend the Panel hearing. This is with a view to conserving public resources and no disrespect is intended to the Independent Appeal Panel. Should the Panel wish to have a representative present to set out the parties’ agreement orally, a representative from Just for Kids Law/Lawrence & Co is happy to attend. Kindly confirm whether the panel is agreeable to this direction and whether it requires the claimant’s mother’s representative to attend the panel meeting.”
[13]Following the sending of the letter, Miss Knowles was in email communication with the clerk to the IAP seeking to clarify whether attendance was necessary. On 28 February 2012, Miss Knowles’ email raised this question:
“… I would be most grateful if you could confirm whether the Independent Appeal Panel would be prepared to make a direction as requested and whether you require us to attend the hearing on 7 March 2012 …”
In response by an email dated 29 February 2012, Miss Dowuona, the clerk, stated:
“… In your letter you indicated that you will not be attending the hearing on the basis of your compromise agreement with the school. As I said before, in the absence of a notification of the withdrawal of the appeal, the Panel would be required to the appeal. The determination of the appeal would therefore be on the basis of written submissions, including the compromise agreement …”
On 2 March 2012 Miss Knowles emailed Miss Dowuona and stated:
“You will note that in our letter, we expressed a preference not to attend, subject to agreement by the IAP that this was acceptable, but that we would be happy to attend to explain the agreement verbally should the IAP prefer. I understand from your email that the IAP is happy to consider the appeal on written submissions alone, including the compromise agreement. I look forward to receiving the decision of the IAP in due course. …”
[14]On 7 March 2012, the IAP met and considered the claimant’s application. In addition to the letter setting out the agreement between the parties and the head teacher’s email accompanying the letter, the claimant had submitted a large bundle of documents which included the exclusion letters written by the head teacher, the minutes of the Governing Body meeting on 17 January 2012 (paragraphs 4-7 above) which identified the concerns of the head teacher, namely, that the School had tried to avoid permanent exclusion but as the school had been unable to obtain the package of support necessary for the claimant, they had no alternative but to move to permanent exclusion as a means of securing the same.[15]On 10 March 2012 Miss Dowuona, on behalf of the IAP, wrote to the claimant’s mother notifying her of the decision to uphold the permanent exclusion. The letter, which was detailed as to the stages of the determination and facts of which account was taken, included the following:
“….. Supplementary Documentation When the hearing commenced, the Panel considered a joint correspondence from your legal representative and the Headteacher dated 24 February 2012 received by the Clerk to the Appeal Panel and circulated to all parties following the despatch of the agenda papers. The Documentation informed the Panel that an agreement had been reached proposing that the permanent exclusion be overturned on the basis that (the claimant) not be reinstated at H School due to exceptional circumstances. The Panel, after seeking legal advice, accepted that they were not bound by the agreement and considered that it was required to consider all the evidence and arrive at its own decision on whether (the claimant) committed the breach of the School Behaviour Policy and whether the permanent exclusion was a proportionate response given that the appeal had not been withdrawn ….. Detailed Reasons for the Panel’s decision The Panel took into account the bundle of 162 pages of documentation from all parties prepared for the appeal, …. The Panel also took into account a two-page submission by your legal representative Ms Rachael Knowles, which was sent out to all parties … The Panel noted your absence and that of the Headteacher and Chair of the Discipline Committee, H School which was explained in the letter of 24 February 2012 … Mr Jim Donovan, School Inclusion Team Manager, Children Schools and Families Department representing Camden Local Education Authority was in attendance and the Panel heard from him on points of clarification about the proceedings of the disciplinary hearing and the role of the Local Education Authority at that hearing ……”

Detailed Reasons for the Panel’s decision

[16]The letter identified the two-stage process taken to determine whether the decision should be upheld, namely, a determination as to whether the pupil actually did what he was accused of doing and thereafter whether permanent exclusion was a reasonable response to the pupil’s conduct in all the circumstances of the case. As to the facts, the IAP noted the series of incidents in which it was said the claimant had breached the School’s Behaviour Policy and, in particular, the incident of 18 November 2011. The IAP did not reach a decision on the balance of probabilities as to whether the conduct alleged on 18 November was committed but relied on earlier incidents. It also noted the School’s view that the claimant posed a potential threat to the health and safety of both staff and students. The IAP found that sufficient support was provided to the claimant despite the fact that there was no formal statement of Special Educational Needs. They did not consider that the evidence supported the suggestion that the claimant’s permanent exclusion constituted unjustified discrimination related to a disability. The IAP found that the claimant’s behaviour was so extreme and a danger to himself, his fellow pupils and staff that permanent exclusion was proportionate in all the circumstances given the School’s duty of care to other students and the School’s staff.[17]Under the heading “Conclusion”, the letter stated:
“In light of all the evidence, the Panel decided to uphold the exclusion. The Panel concluded that (SA’s) permanent exclusion was the appropriate sanction for the breaches in question, as the School could no longer guarantee the health and safety of other students and staff in the School. … They considered that it was of utmost importance for a clear demonstration to be sent by the School to students, their parents and staff that such behaviour was not acceptable and should not be tolerated. The Panel concluded that in view of the serious nature in the incidents, described in the papers, (SA) merited permanent exclusion … The Panel also noted the agreement reached between your representative and the school requesting that the Panel overturn the permanent exclusion. However, given the serious breaches and the sufficient evidence, applying the civil standard of proof, the Panel were satisfied that the permanent exclusion was proportionate and therefore did not uphold your appeal …”
[18]No member of the IAP provided a witness statement for this hearing, the only evidence came in the form of a witness statement from Miss Dowuona. The Law Statutory Framework Education Act 2002 52 Exclusion of pupils (1). The Head Teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently. (10). In this section “exclude” in relation to the exclusion of a child from a school or pupil referral unit, means exclude on disciplinary grounds (“exclusion” shall be construed accordingly). Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (“the 2002 Regulations”) 6 Appeals against permanent exclusion of pupils (3). In making any decision on an appeal pursuant to arrangements made under paragraph (1), an appeal panel shall have regard both to the interests of the excluded pupil and to the interests of other pupils and persons working at the school (including persons working at the school voluntarily). (6). 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. SCHEDULE Constitution and Procedure of Appeal Panels[10](1) The appeal panel shall give each of the following persons an opportunity of making written representations and appearing and making oral representations and shall allow him to be represented, or (accept in the case of the governing body and local authority) to be accompanied by a friend - (a). the relevant person, (b). the head teacher, (c). the governing body, and (d). The local authority.[14]The decision of an appeal panel on the grounds on which it is made shall – (a). be communicated by the panel in writing to the relevant person, the local authority, the governing body and the head teacher, and (b). be so communicated by the end of the second working day after the conclusion of the hearing of the appeal. Guidance “Improving behaviour and attendance: guidance on exclusion from schools and Pupil Referral Unit” The Guidance dated September 2008 is published by the Department for Children, Schools and Families. The introduction states that “Headteachers, teachers in charge of a Pupil Referral Unit (PRU), governing bodies, local authorities (LAs) and Independent Appeal Panels (IAPs) must by law have regard to this guidance when making decisions on exclusions and administering the exclusion procedure. This means that, whilst the guidance does not have the force of statute, there is an expectation that it will be followed unless there is good reason to depart from it. The guidance is not exhaustive and judgments will need to take account of the circumstances of individual cases …” Within the Guidance is the following: “Managing behaviour in schools ………[5]Effective policies, procedures and training minimise the number of pupils at risk of either permanent or fixed period exclusion. For those at risk, additional measures could include ………• . a managed move to another school, with the consent of all parties involved; this can be successful for pupils at risk of exclusion and as an alternative to permanent exclusion. Alternative to exclusion 11d) Managed move to another school to enable a pupil to have a fresh start in a new school. The Headteacher may ask another Headteacher to admit the pupil. This should only be done with the full knowledge and co-operation of all the parties involved, including the parents, governors and the LA, and in circumstances where it is in the best interests of the pupil concerned.

The decision to exclude

[16]A decision to exclude a child permanently is a serious one and should only be taken where the basic facts have been clearly established on the balance of probabilities. It will usually be the final step in a process for dealing with disciplinary offences following a wide range of other strategies which have been tried without success. It is an acknowledgement by the school that it has exhausted all available strategies for dealing with a child and should normally be used as a last resort.

Governing Bodies/Management Committees Decision

[112]Where reinstatement is not practical, because, for example, the pupil has returned to school following the expiry of the fixed period of exclusion, or because the parent makes clear he or she does not want their child reinstated, the Governing Body/Management Committee must consider whether the head teacher’s/teacher in charges decision to exclude the child was justified, based on the evidence. The outcome of its review should be added to the pupil’s school record for future reference. There are only two decisions open to the Governing Body/Management Committee – to uphold the exclusion or to direct the pupil’s reinstatement, either immediately or by a particular date. It may not decide that because the exceptional circumstances or for other reasons it is not practicable to give a direction for reinstatement, but that it would otherwise have been appropriate to give such a direction. Such a decision is reserved for the Independent Appeal Panel. The Appeal

Reaching a decision

[159]In deciding on:• . Whether or not to uphold an exclusion and then• . Whether or not to direct reinstatement if the exclusion is not upheld The panel must balance the interests of the excluded pupil, taking into account the seriousness of the incident leading to the exclusion, the pupil’s past behaviour and the consequences for him or her of the exclusion, against the interests of all the other members of the school/PRU community including the risk of undermining the head teacher's/teacher in charge of authority and the general climate of discipline within the school/PRU. The decision 162. An appeal panel may:• . Uphold the decision to exclude; or• . Direct immediate reinstatement or reinstatement at some future date; or• . Decide that because of exceptional circumstances or other reasons it is not practical to give a direction requiring reinstatement, but that it would otherwise have been appropriate to give such direction ………[164]In some cases it will not be practicable for the Panel to direct reinstatement because the parent has made clear he or she does not want it, or because the child has become too old to return to the school/PRU.[165]There may also be exceptional cases where the panel considers that the permanent exclusion should not have taken place, but that reinstatement in the excluding school, PRU is not a practical way forward in the best interests of all concerned.

After the Hearing

[170]The Panel must let all parties know its decision by the end of the second working day after the hearing. ……… The decision letter must give the Panel’s reasons for its decision in as much detail as possible, including clear information about the offences or behaviour for which the pupil has been excluded, so that the parties can understand why the decision was made….”[19]As to the approach of an IAP to the Guidance in ST and P v London Borough of Brent and others 2002 EWCA Civ 693 Schiemann LJ, in respect of earlier Guidance, identified the fact that Appeal Panels are required to act independently and decide impartially but to do so in the light of the Secretary of State’s Guidance. As to the approach to be taken to the Guidance at [15] he stated:
“The first consequence of this is that Appeal Panels, and schools too, must keep in mind the guidance is no more than that: it is not direction, and certainly not rules. Any appeal Panel, albeit on legal advice, treats the Secretary of State’s guidance as something to be strictly adhered to or simply follows it because it is there will be breaking its statutory remit in at least three ways: it will be failing to exercise its own independent judgment; it will be treating guidance as if it were rules; and it will, in lawyers terms, be fettering its own discretion. Equally, however, it will be breaking its remit if it neglects the guidance. The task is not an easy one.”
Schiemann LJ also dealt with the role of the Local Education Authority at an appeal hearing and at [22] stated:
“The role of the LEA in these appeals is a complex one. … There is no question but that in all these functions the LEA must maintain a completely objective stance. … [24] …There is nothing wrong in the LEA informing the Appeal Panel of the situation in various schools in its area and providing other factual information. … It is important to remember when considering the role of the LEA that we are hear concerned with an appeal against a decision by the Head Teacher and the discipline panel to exclude a particular pupil, a decision against which Parliament has provided a right of appeal for the pupil to an independent body. It should be noted that Parliament has not provided a right of appeal for the LEA even if it considers that the Head Teacher should not have excluded the pupil. It is no part of the function of the LEA to press for a particular conclusion in relation to a particular pupil. A clear instance would be a direct submission that the pupil ought or ought not to be permanently excluded …”

The Claimant’s Case

[20]The claimant’s primary point is that the agreement reached between the claimant’s mother, the School and the Governing Body was made and was identified as having been made in the best interests of the claimant. Relying upon the authority of ZH (Tanzania) v Secretary of State for the Home Department 2011 UKSC4 it is said that in all actions concerning children, the best interests of the child shall be a primary consideration. It is accepted that the IAP was not formally bound to give effect to the agreement. What is said is that its terms and effect had to be a primary consideration from which clear and cogent reasoning would be required in the event that the IAP chose to depart from that agreement. No reasons were given for such departure. Further the IAP misdirected itself in deciding it must consider the appeal afresh and arrive at its own decision as there is no rational or legal basis not to give effect to the agreement. The situation which presented itself to the IAP was outwith the specific terms of the Guidance. The IAP, and its clerk in giving advice, slavishly followed the terms of the Guidance rather than exercising independent judgment in considering the totality of the case before it.[21]As to the defendant’s claim that the Panel took the agreement into account, or as the letter records it “noted the agreement”, no reasoning is given as to the nature and extent of the consideration given to the agreement, the weight to be attached to it and why. The head teacher specifically identifies the agreement as being in the best interests of the claimant but that view is disregarded by the IAP. In its letter the IAP refers to the agreement but only to state what it had done and provides no reasons as to why the agreement was ignored. There was copious documentation as to the history of the matter which demonstrated what had been done by the head teacher and why. The head teacher’s email of 27 February 2012 which accompanied the agreement cannot be described as a pragmatic solution to a difficult problem but rather a head teacher doing the best he can in difficult circumstances to achieve, what he believes, to be the best outcome for a pupil in need of support. The decision of and letter written by the IAP does not begin to address the real issue.[22]Fundamental to the approach of the head teacher was that he was taking the step of permanent exclusion not for punitive reasons but for the safety of the pupils and staff of the School and to enable the claimant to receive the assessment and thereafter the support he required. The IAP were treating the matter as one of discipline and in so doing they failed to recognise the overarching concern of the head teacher and ultimately failed to grasp what underlay the agreement.[23]As to the defendant’s point that the claimant’s lawyer, in deciding not to attend, took a risk, that risk has to be seen in context. Such a risk would include an expectation that if the agreement or order is not to be given effect then an indication would be given to the parties and reasoning provided in order for them to comment upon it.[24]As to Ground 2, it is said that it was procedurally unfair for the Panel to seek oral information from the local authority representative who was in attendance at the meeting. Thereafter the IAP failed to provide either party with the opportunity to make relevant oral representations. The basic requirements of procedural fairness require that if an Appeal Panel is minded to reach a conclusion in conflict with the outcome agreed by the relevant parties to the appeal, particularly when that agreement has been specifically identified as being in the best interests of the child in question, it should give the parties the opportunity to address its reasons if any for so doing.

The Defendant’s Case

[25]The defendant contends that the requirement to provide adequate reasons means no more than the IAP must provide reasons which enable the parties to understand the basis on which their decision to uphold the exclusion had been made. In that regard, the IAP amply discharged its duty. The letter referred to the agreement but recognised that its task was to determine the appeal for itself without being bound by the wishes of the parties. It is said that the two references in the decision letter to the agreement are a “more than adequate explanation” of why the IAP did not give effect to the agreement. The reality was that faced with the letter of 24 February 2012, the IAP either had to give effect to the agreement or not. It lawfully decided that it should not give effect to it in the exercise of its statutory function to determine the appeal for itself. Reliance is placed upon the authority of the R v The Education Committee of Blackpool Borough Counsel ex-parte Taylor 1999 ELR 237 at 240 where it was stated by Kay LJ that “The need to give reasons is a requirement to give reasons which enable the parents to understand the basis upon which the decision has been made”. It is of note that this decision preceded the Guidance requiring reasons to be given in as much detail as possible.[26]This was a case in which the IAP were alive to the fact of serious incidents of bad behaviour, they considered the evidence of those incidents and the support which the School had provided to the claimant. The Panel recognised what the School had done to avoid permanent exclusion and in the detail of their letter referred to the various incidents. It is said that the IAP looked comprehensively at what is described as “appalling conduct” notwithstanding what the School had done to avoid permanent exclusion it was a proportionate response in these circumstances. Either they gave effect to the agreement or they did not. If they did not, on the facts, they were entitled to reach the decision which they did. Their decision is described by Mr Cross on behalf of the defendant as being “legally impeccable”.[27]Further, reliance is placed upon the fact that in choosing not to attend the hearing, the claimant’s solicitor took a risk. Given that it is undisputed that the IAP were not bound to give effect to the agreement, the fault is that of the claimant’s solicitor in not attending the meeting. If the claimant’s solicitor chose not to avail herself of the opportunity to address the panel, that is not something for which the IAP are responsible.

Conclusion

[28]The head teacher of H School, in dealing with the claimant, was faced with a sensitive and difficult issue. With knowledge and sensitivity, he sought to obtain appropriate assessment and provide adequate support for the particular needs of the claimant. He is to be commended for the consideration which he gave to this matter. By December 2011 by reason of the claimant’s conduct and because of his inability to obtain appropriate assessment and support for the claimant, the head teacher believed, and was independently advised, that the only course open to him was one of permanent exclusion.[29]Nothing better reflects his predicament and the view he ultimately took than the evidence which he gave to the Governing Body on 17 January 2012. He said that the School had tried its best to avoid permanent exclusion, contact had been made with both Camden and Brent in an effort to avoid it but the School had been unable to obtain a package of support. The School was happy to find a resolution that would ensure that permanent exclusion was not the only option. The head teacher described it as perverse that the School could not find a solution. A managed move to the PRU was attempted but it was only possible if the claimant was a resident in the borough, he was not. The head teacher referred to the inflexibility of the system and of a more humane approach. He recognised that the permanent exclusion was as a result of continued breaches of the School Behaviour Policy and the risk which the claimant posed to the welfare of adults and students in the school, but balanced against that, the need for a proper assessment and thereafter support for the claimant.[30]The exclusion letter dated 12 December 2011, written by the head teacher refers to his hope of moving the claimant for assessment and more therapeutic support without permanent exclusion. He identifies the fact that it was upon the advice of Brent’s Pre-Exclusion Officer that in order to access appropriate support through Brent’s Pupil Referral Unit, he was permanently excluding the claimant as it was the only way in which his needs could be assessed and ultimately met. The letter and the minutes of the meeting of the Governing Body were before the IAP at their meeting as was the covering email of the head teacher dated 27 February 2012 which reflected his concerns and identified the fact that the proposed agreement was believed to be in the best interests of the claimant.[31]It is common ground between the claimant and the defendant that it was only the IAP who had the power to exercise the “exceptional circumstances” provision identified in Regulation 6(6)(c) of the 2002 Regulations. The Governing Body of the School had only two decisions open to it: to uphold the exclusion or direct the pupil’s reinstatement. The claimant and the School sensibly sought independent legal advice. Having done so, the course proposed reflected the discretion accorded to the IAP by Regulation 6(6)(c) of the 2002 Regulations.[32]The matter came before the IAP. In their decision letter, reference is made to the fact that they received “legal advice”. This advice came from the clerk to the IAP who is not a lawyer. The Court was informed that the clerk would have received “training” in order to advise the IAP.[33]The 2008 Guidance did not provide for the situation which presented itself to the IAP when it was asked to consider and approve the proposed agreement. If there were doubts on the part of the IAP and its clerk as to what to do in the absence of specific Guidance, the prudent course would have been to have adjourned the matter and invited representations from the parties and, if necessary, sought independent advice from a qualified lawyer.[34]The agreement was signed on behalf of the three relevant parties: the claimant, the School, the Governing Body. Given the limited role of the local authority, in particular that it was no part of its remit to propose or endorse a particular conclusion, it would not have been appropriate for it to be a signatory to the agreement. Thus it was that the IAP was given the agreement, informed that it was considered to be in the best interests of the claimant and that the relevant parties had obtained legal advice. In addition, the IAP was provided with the head teacher’s letters and minutes of the Governing Body’s meeting which clearly demonstrated the thinking and the purpose of the agreement. Presented with all of the above, the IAP, in effect, ignored the agreement.[35]In its detailed decision letter, the IAP made just two references to the agreement. They gave no indication as to what consideration had been given to its terms, nor the motivation behind it. No reason was given as to why they chose not to follow an agreement said to be in the best interests of the claimant and reached by all relevant parties who had received independent legal advice. On the defendant’s behalf it is said that the mother knew what decision had been made and why. In my view, both counsel on behalf of the defendant and the IAP at its meeting, failed to grapple with the real issue, namely, the motivation and reasoning behind the agreement which represented the concern and thinking of all relevant parties.[36]As to the defendant’s contention that in choosing not to attend the meeting, the claimant’s solicitor took a risk the result of which cannot be attributed to the IAP. I am of the view that this misses a fundamental point, namely, that if the IAP were not intending to give effect to such an agreement, it would be reasonable to expect the IAP to give that indication and its reasons for so doing in order to allow the parties to make representations upon such a course.[37]No good or even adequate reason was given by the IAP for not giving effect to the agreement. The IAP sidestepped the issue, it wholly failed to address the reasoning behind the agreement. Such a course is particularly concerning when the agreement was before the IAP as representing the best interests of the claimant. In my view, there was an unlawful failure on the part of the IAP to provide reasons for not giving effect to the agreement between the parties. The direction, from whosoever it came, that the IAP was required to reach its own decision rather than give effect to the agreement between the parties unless there was good reason not to do so, was a misdirection. Accordingly upon Ground 1, I quash the decision of the IAP and remit the matter for a hearing before a new Panel.

Ground 2

[38]In her email dated 27 February 2012, the clerk to the Court stated that the “determination of the appeal will therefore be on the basis of written submissions”. This did not happen. Oral representations were made by the local authority albeit they could not make representations as to the course to be taken by the IAP. Upon this basis alone, Ground 2 is made out. Given my findings upon Ground 1, namely that having formed a view that they would not follow the agreement, the IAP should have adjourned the hearing in order to receive representations upon such a course, I also find that there was procedural unfairness. Accordingly, I grant permission to bring proceedings for judicial review upon Ground 2. I find that the challenge is made out and grant the relief sought.