Mosekari v The London Borough of Lewisham [2014] EWHC 3617 (Admin)

Case No CO 152/2013[2014] EWHC 3617 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 5 th November 2014
Before
THE HONOURABLE MRS JUSTICE MCGOWAN
Between
Shinowa MosekariApplicantThe London Borough of LewishamRespondent(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. Al Mustakim (instructed by Capitol Solicitors) for ApplicantMr. Brittenden (instructed by London Borough of Lewisham) for RespondentHearing Hearing dates: 1 July 2014
JudgmentMrs Justice McGowan :The Background
[1]The Claimant, Dr. Shinowa Mosekari, is a teacher who qualified in South Africa. He was an employee of the Defendant, the London Borough of Lewisham, the “Borough”, at Sedgehill School, the “School”. From 1st January 2001 the Claimant taught science at the School under a contract of employment.[2]In May 2012 he resigned from the post at Sedgehill School and attempted to take up employment at a school outside the Borough. On carrying out the usual checks his potential employer discovered that he had apparently not completed the mandatory Statutory Induction Period. The matter was investigated and the Defendant found that there was no record of the Claimant having completed the Statutory Induction Period and concluded that it did not have power to grant an exemption from the requirement to complete the induction. The issue of whether the Claimant has completed that Statutory Induction Period is at the heart of this review. The Claimant contends that he has but that even if not formally completed, the Defendant has a discretion to grant an exemption from full completion and that in any event the Defendant’s conduct was such to have created a legitimate expectation of the grant of such an exemption on the Claimant’s part.

The Issue

[3]The Claimant contends that he has actually or effectively completed the required Statutory Induction Period. He undertook and successfully achieved Qualified Teacher Status (QTS) at Goldsmith’s College, that status was awarded on 22 February 2003. That meant that the Claimant was a Newly Qualified Teacher (NQT) from that date.After that date he was given an appointed “Induction Mentor” by the School and received training and assessment. Further the School conducted Performance management Appraisals between 2004-2007, all of which he passed or exceeded. He further relies upon an email from the School’s Bursar, John Huntingford, dated 12th July 2012, which says:
“during the induction period the Claimant was allocated a school mentor and was given a reduced timetable to facilitate the completion of his training.” “from the school’s perspective Mr. Mosekari is a fully accredited teacher but it seems that an important piece of paper is missing.”
He argues that this shows, in conjunction with other correspondence and salary adjustments, that the School acknowledged his completion of the required Statutory Induction Period or that he was led to believe that such was the case. He accepts that he cannot demonstrate completion of the Statutory Induction Period, post obtaining his Qualified Teacher Status at Goldsmith’s College by any form of certification.[4]The Claimant argues that, if there was a mistake, it was made by the School, and that the Borough, which runs and controls the School, is therefore acting irrationally and perversely in failing to recognise that the Statutory Induction Period has been completed. He contends that there is a discretion in the Borough to accept that the Statutory Induction Period has effectively been completed and that it is unfair of the Defendant not to grant such an exemption from any further requirement.[5]He further argues that by allowing his continued employment the Defendant has created an expectation that such “induction period” as he had completed was enough to satisfy the statutory requirements, and that to deny him the effect of this expectation would be unjust.[6]The Defendant’s case is very straightforward. The Statutory Induction Period was not completed, that being the case there is no discretion to grant an exemption in the terms sought and that no legitimate expectation can have been created as the Defendant does not have the power to grant such an exemption. Further that even if, as the Claimant contends, some form of induction period was completed, it did not follow the prescribed order of events.[7]It is that decision that the Claimant seeks to have reviewed on three bases; a) As to the reasonableness of the Defendant’s decision not to recognise the Claimant’s “induction” at the school as a valid statutory induction, b) As to the correctness of the Defendant’s interpretation of the scope of its discretion to grant an exemption to the Claimant from the requirement to undertake the full period of the statutory induction and if incorrect in that interpretation, whether the correct interpretation would have led to a different conclusion and c) Whether, in allowing the Claimant’s continued employment at the school for 11 years the Defendant created a legitimate expectation that all training requirements had been satisfactorily completed.

Legal and Regulatory Background

[8]The route to full qualification is very strictly determined by statutory regulation. The Education (Induction Arrangements for School Teachers) (England) Regulations 2012, (“the 2012 Regulations”) came into force on 1 September 2012. They were preceded by similar Regulations of 2001 and 2008. The 2012 Regulations have associated statutory guidance DfE Induction for newly qualified teachers (England): Statutory Guidance for appropriate bodies, head teachers, school staff and governing bodies. The Defendant is bound to have regard to the guidance when carrying out its duties.[9]In essence the Regulations, and accompanying guidance state that a Newly Qualified Teacher, a) Must first attain Qualified Teacher Status, and that b) It is mandatory that the Statutory Induction Period, (normally three terms but not necessarily consecutive) be completed after achieving QTS.[10]It is clear that the 2012 Regulations set out that the two stage process must be completed in that order. Section 1.6 Guidance, a qualified teacher:
“cannot be employed in a relevant school in England unless they have satisfactorily completed an induction period in accordance with the Regulations and this guidance. While NQT’s are encouraged to start their induction as soon as possible after gaining QTS, there is no time limit for starting or completing an induction period.”
Section 2.10 Guidance, “An NQT cannot undertake statutory induction (or period of employment counting towards induction) unless they have been awarded QTS. Head teachers/principals and appropriate bodies must check with the Teaching Agency that the individual holds QTS.”[11]The Guidance published to accompany the 2001 Regulations has the same effect in that it provides that, “Only teachers with QTS are eligible to begin an induction period.” The Defendant therefore contends that the Claimant did not complete the Statutory Induction Period, even on his own case.

Exercise of a Discretion

[12]The Defendant contends that there is no discretion to grant an exemption from completing the requirements. The Borough could not grant such an exemption, even if minded to. It further argues that that being the case, there can be no legitimate expectation created to grant something which is not within the Borough’s power.[13]The 2012 Guidance introduced a limited discretion to reduce the required Statutory Induction Period from three terms to one, in the case of a teacher with “significant teaching experience”:
“Regulation 7(3) “Even though some teachers already have significant teaching experience when they enter the maintained sector for the first time, they are still required to serve statutory induction. In such cases, appropriate bodies have discretion to reduce the length on the induction period to a minimum of one term (based on an academic year of three terms) to recognise this experience.”
[14]The Defendant would exercise this discretion in the Claimant’s favour if he elected to apply for a job within the Borough. It cannot bind any other employer but has undertaken to use its best endeavours to persuade any other employer in the maintained sector to grant such an exemption. Conclusions[15]The statutory requirements for the training of teachers are quite rightly very stringent. It is an area which requires strong regulation and constant supervision. The reasons are all too obvious. In applying those regulations to the individual teacher there must be proportionality between the public interest and the burden placed on the individual. Anything else would be disproportionate and therefore unfair and irrational. In Bank Mellat v HM Treasury [2013] 3 WLR 179 Lord Sumption considered the development of the test of proportionality which he distilled at 230B, as follows:
“…that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”
[16]The interests of the community in ensuring that teachers are trained and assessed are to be safeguarded anxiously. There are few areas more important to a community than the education of its children. The imposition of such requirements place a burden on the individual candidate. That is inevitable and, in fact desirable. The formalities of such requirements should rarely, if ever, be capable of being waived. In this case the rules do not permit such a waiver, save to the limited extent of a reduction from three terms to one, based on significant experience.[17]The Claimant failed to complete the Statutory Induction Period in the manner prescribed by the regulations. There is no power to grant a general exemption and there cannot therefore be a legitimate expectation that such exemption could be granted. Despite his skill as a teacher, the requirements are obligatory and the Defendant did not act irrationally or unfairly in refusing to accede to the Claimant’s request to deem that the obligations had been met or to waive such requirement. This application must fail.