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Legal Representation and School Disciplinary Proceedings

June 29th, 2011 by Christopher Knight

G worked as a music assistant at a school. During his time there it was alleged that he formed an inappropriate, and possibly sexual, relationship with a 15 year old boy on work experience at the school. The school was informed by the boy’s parents, and launched disciplinary proceedings against G. The police were informed, but following an investigation, no charges were brought.

The school’s policy on disciplinary hearings permitted G to bring a trade union representative or friend. G, who was not a union member, requested his lawyer attend and the school refused that request. G declined to answer questions at the hearing on the grounds that it was unfair. The school found that G had formed an inappropriate relationship with the boy and summarily dismissed him for gross misconduct.

Because of the nature of the finding, the school reported the matter to the Secretary of State (now the Independent Safeguarding Authority) for consideration of whether G should be placed on the barred list (formerly ‘List 99′) under the Safeguarding Vulnerable Groups Act 2006. The determination by the ISA remains pending.

Overturning the Court of Appeal ([2010] EWCA Civ 1; [2010] 1 WLR 2218), the Supreme Court held today in R (G) v Governors of X School [2011] UKSC 30 that G had no Article 6(1) ECHR right to legal representation at the school’s disciplinary hearing. G argued that the refusal to permit legal representation at the hearing was in breach of Article 6(1) because that hearing was determining a civil right, namely the right to practise his profession as a teacher.

The leading judgment was given by Lord Dyson, with whom Lord Walker agreed, with short concurring judgments from Lord Hope and Lord Brown. Lord Dyson held that the question whether proceedings are directly decisive of the right in question, where they are related to a second set of proceedings which are themselves directly decisive, should be assessed by reference to whether those proceedings have a substantial influence on the second proceedings. This was the test proposed by Laws LJ in the Court of Appeal.

However, in applying that test, the majority of the Supreme Court came to a different outcome to the courts below. Everyone agreed that any decision taken by the ISA to place G on the barred list - and any appeal from the ISA to the Upper Tribunal – was directly decisive of G’s right to practise his profession. However, the majority saw the decision of the school to only go to G’s employment with that school and not any wider right. There was undoubtedly a link between the school hearing and any ISA decision, but the ISA is required to take its own decision and is not bound by any previous findings of fact. The refusal of the school to permit legal representation at its disciplinary hearing was therefore not a breach of Article 6(1) ECHR. It lacked a substantial influence over the decisive proceedings.

Lord Kerr dissented, holding that it was artificial to separate out the two stages of the proceedings. It was necessary to assess the overall picture, and the findings of the school, which will have tested the evidence, would and should be given significant weight by the ISA in its own determination. The procedure as a whole was therefore not Article 6(1) compliant.

Judicially Reviewing the Tribunals

June 22nd, 2011 by Christopher Knight

The Supreme Court today handed down its long-awaited (at least by some) judgment in R (Cart) v The Upper Tribunal [2011] UKSC 28. The case concerns the circumstances in which the ordinary courts will entertain an application to judicially review a decision of the First-Tier or Upper Tribunals. Although the case did not directly involve a challenge to the Health, Education and Social Care Chamber of the Tribunals, or the jurisdiction over educational issues more generally, the judgment is of wider general application.

The Upper Tribunal is a “superior court of record” by virtue of section 3(5) of the Tribunals, Courts and Enforcement Act 2007. Under section 13, there is a right of appeal to the Court of Appeal from the Upper Tribunal, subject to permission being granted by either body, unless the decision falls within the category of excluded decisions. The most generally relevant excluded decision is a refusal of permission to appeal from the First-Tier Tribunal to the Upper Tribunal by the Upper Tribunal. Where permission is refused that is, in the eyes of the 2007 Act structure, the end of the line. Unless one can judicially review the decision to refuse permission.

The Divisional Court roundly rejected the argument that the designation of the Upper Tribunal as a superior court of record rendered it immune from judicial review ([2009] EWHC 3052 (Admin); [2010] 2 WLR 1012) and the absolutist position was not resurrected on appeal. The Court of Appeal agreed with the Divisional Court that judicial review should be available only in circumscribed cases ([2010] EWCA Civ 859; [2011] 2 WLR 36). The Supreme Court unanimously dismissed the appeal, but for different reasons.

The leading judgment of the Supreme Court was given by Lady Hale, with whom the rest of their Lordships more or less completely agreed, albeit in their own words. Rejecting the application of an unrestricted judical review jurisdiction over all decisions in the Tribunal structure, and the application of an exceptional circumstances test limited to an excess of jurisdiction and denial of fundamental justice, the Court settled on a more easily described approach. Where an application is made for judicial review of a Tribunal decision the High Court should apply the second appeals criteria, namely that (a) the proposed case would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the case.

It was considered by Lady Hale and the other members of the Court that this test was a proportionate and rational restriction on the availability of judicial review which nonetheless recognised the importance of correcting errors in the Tribunal’s case load. The exceptionality test would have been too narrow, and applying judicial review without limitation would have lead to the courts being swamped with applications in respect of a system designed to make the process easier, quicker and cheaper (especially in the light of its application to immigration and asylum cases).

Interestingly, there were a number of comments from Lady Hale, Lord Phillips, Lord Clarke and Lord Dyson to the effect that the situation would be made clearer by an amendment to the CPR remove the potential four stages of judicial review permission applications in these quasi-second appeal cases. Whether the Rules Committee is paying attention remains to be seen.

The upshot of the decision in Cart is that if the Upper Tribunal refuses permission to appeal to it, that decision can be judicially reviewed, but only on the restrictive second appeals criteria. The tenor of the judgments as a whole do not provide much appetite for leave to be readily granted, and in both cases under appeal the Supreme Court roundly rejected their compliance with the second appeal test.

For those reading north of the border, the Supreme Court applied the same approach to the Tribunal structure in Scotland in Eba v Advocate General for Scotland [2011] UKSC 29.

“Unreasonable public expenditure” in section 9 EA – which costs?

June 22nd, 2011 by Jane McCafferty

The Court of Appeal gave judgment today in a case which again considered the question of which costs are relevant when determining what constitutes “unreasonable public expenditure” in section 9 of the Education Act 1996; H v Kent CC [2011] EWCA Civ 709 (full judgment available here). 

Sullivan LJ’s judgment seeks to reconcile the apparently conflicting approaches to the identification of the costs to the public purse taken by Sedley LJ in the Oxfordshire and Slough cases (and by Underhill J in the Coventry case) as responses to extreme positions adopted in submissions.  The orthodox Oxfordshire approach was preferred, with the Court of Appeal holding that the LEA’s budgetary arrangements for an individual school would usually be a sensible starting point. If those arrangements made provision for the payment of an age weighted pupil unit (AWPU) to the school there was no reason on the facts of H why the FTT should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, were a fair reflection of the cost to the public purse of educating the child at that school.

The effect of section 9 is that parental choice is to be overridden where the choice would impose an avoidable burden on public funds. The FTT was called upon in H, as it often is, to quantify the respective costs of the two schools.  It did so by applying the orthodox approach set out in Oxfordshire whereby only the ‘marginal costs’ to the LEA are included and costs which would be incurred whether or not the child attended the school are excluded.  On the facts of H, these marginal costs were limited to the AWPU and some transport costs.  After the oral hearing of the appeal to the UT, the Court of Appeal’s decision in Slough was handed down.  Although Sedley LJ gave judgment in both Oxfordshire and Slough, he did not refer to the former in his judgment in the latter and there is, as Sullivan LJ acknowledged, at least an apparent inconsistency between the two decisions. 

In Slough, the LEA’s submission was that admission to a maintained school with space for the child was “cost-free”, apart from any special requirements she brought with her.  That submission goes too far in that it artificially assumes a place at a maintained school to carry a nil cost to public expenditure. However, Sedley LJ’s response to that submission in Slough also went too far when he expressed himself as follows: “Every element of a maintained school carries a cost in public funds.  The recurrent exercise for tribunals is to calculate what it is..” (emphasis added). Sedley LJ went on to approve the FTT’s decision that “whatever the notional per capita cost of the maintained school was” it exceeded the cost of the independent school.  This reference to a notional per capita cost did not sit easily with the marginal costs approach taken in Oxfordshire.

The appellant in H adopted a different, but equally artificial, position submitting that the tribunal was wrong to focus on the LEA’s budgetary allocation for the school rather than the expenditure of the school itself as “public expenditure”.  It was submitted that “public expenditure” in section 9 should always be determined by consideration of the school’s accounts, excluding fixed costs such as premises but including all variable costs in the school’s accounts.  Sullivan LJ rejected this submission.  Stepping back from the two extremes of fractionalising the entire LEA budget (rejected in Oxfordshire) and assuming a cost-free place at a maintained school (rejected in Slough and Coventry), Sullivan LJ held that whether a placement involved unreasonable public expenditure was a question of fact to be answered by the FTT in a common-sense way.  

The Court of Appeal held that it is for the FTT to decide what evidence it considers most helpful and it is entitled to have regard to other information, such as a school’s accounts, if it is not satisfied that the figures based on the LEA’s budgetary arrangements are a fair reflection of the cost to the public purse of educating the child at the school in question. Although they would not necessarily provide the definitive answer, the LEA’s budgetary arrangements for an individual school will usually be a sensible starting point. If those arrangements made provision for the payment of an AWPU to the school there was no reason why the FTT should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, for example transport costs or the costs of therapy or learning support if an additional therapist or LSA had to be employed by the school, or if an existing therapist or LSA at the school had to be paid to work additional hours, were a fair reflection of the cost to the public purse of educating the child at that school. It should only be in those cases where there was no AWPU payment by the LEA, or where the FTT was satisfied that, for some cogent reason, the AWPU plus any additional costs did not fairly reflect the cost to the public purse of placing the child in a particular school, that the FTT would consider it necessary to adopt some other method of calculating the public expenditure under section 9 EA. 

In one sense, the decision in H is welcome in that it largely restores the well-understood Oxfordshire approach.  However, it does leave the door open for parents to invite the FTT to depart from this approach where they can show a “cogent reason” for doing so on the facts.  No doubt such an invitation will become routine.  The danger for LEAs is that they must have their tackle in order in terms of evidence on costs and budgeting, including, if necessary, evidence of the school’s accounts. 

Finally, although Sullivan LJ neatly reconciled the inconsistencies in Slough and Oxfordshire as the result of extreme positions adopted in submissions, there remain less extreme, valid arguments of statutory construction and policy on the meaning of “public expenditure” in section 9 EA.  However, as the Court of Appeal has considered this issue three times in recent years and has now concluded that it is all a question of fact and common sense for the FTT, the opportunity may have been missed for a more analytical approach.

The School Governance (Contracts) (England) (Revocation) Regulations 2011

June 21st, 2011 by Peter Oldham QC

The School Governance (Contracts) (England) (Revocation) Regulations 2011 will come into force on 20th July 2011. They revoke the School Governance (Contracts) (England) Regulations 2005, which required governing bodies of maintained schools, when entering into contracts, to have regard to the Code of Practice on Workforce Matters in Public Sector Service Contracts (“the Code”).

The aim of the Code was to ensure that, even where TUPE did not apply to transferring staff, the principles of TUPE would be followed, so that the staff would be treated as if TUPE applied to them.  The Code also provided that new employees hired by the contractor should be employed on terms and conditions “no less favourable overall” than the terms on which former public sector workers were employed.

The Code was withdrawn with immediate effect on 13th December 2010.  This was followed by the withdrawal of the Best Value Code of Practice on Workforce Matters in Local Authority Service Contracts on 23rd March 2011. So the 2o11 Regulations regularise the position for maintained schools by revoking the 2005 Regulations.

Peter Oldham QC

Government consults on new draft School Admissions Codes

June 20th, 2011 by James Cornwell

On 27th May 2011 the Department for Education launched a consultation on new draft School Admissions and School Admission Appeal Codes. The draft Codes and the consultation document are available at http://www.education.gov.uk/inthenews/inthenews/a0077550/new-admissions-code-more-places-in-good-schools-a-fairer-and-simpler-system. The consultation period lasts 12 weeks from the launch date. The draft Codes will then need to be laid before Parliament. They will not affect the next admissions round (for entry in September 2012) but would take effect for the September 2013 intake onwards.

Assuming that it is adopted in more or less the proposed form, then the main changes to the Admissions Code would be to:

• reduce the regulation of schools’ Published Admission Numbers (PAN) by, amongst other things, allowing a school to admit pupils in-year in excess of the PAN without the approval of the local authority.

• improve the current in-year applications scheme so fewer children face delays in finding a new school by placing the administration of in-year admissions in the hands of schools, rather than local authorities.

• allow admissions authorities to give priority to children of school staff when a school is over-subscribed, if the school wishes, making it easier for schools to recruit teachers and other staff.

• allowing children of armed forces personnel and twins and other multiple-birth children to be admitted to infant classes even if it takes the class over the 30-pupil limit.

• ban admissions authorities from using area-wide “lotteries”.

• reduce bureaucracy by requiring admissions authorities to consult on admissions arrangements only every seven years (rather than every three years) if no changes are proposed.

The draft Appeals Code removes what is described as “unnecessary prescription” with the intention of making the process cheaper and less burdensome. The proposals include:

• parents will have at least 30 days to lodge an appeal against primary or secondary school decisions, with the intention that parents are not encouraged to appeal unnecessarily in haste due to the current short deadline.

• The test to be applied by IAPs will be split into three clearer stages: lawfulness and correct application of the arrangements; whether there is prejudice; and balancing. This seems to reflect the Court of Appeal’s clarificatory rewriting of the existing test in R (M) v Haringey IAP [2010] EWCA Civ 113.

• Anyone will be able to object to the Schools Adjudicator about admissions arrangements. The deadline for objections to admissions arrangements will be moved backwards to 30 June.

The draft Codes are drafted on the assumption that the Education Bill (currently before the House of Lords) is enacted. The regulations underpinning the admissions regime will be amended in due course to bring them into line with the new Codes.

School’s uniform policy found to be discriminatory

June 17th, 2011 by Michael Lee

Giving judgment today in SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin), Collins J has held that a school’s ban of the cornrows hairstyle, in so far as it applied to the child in question, was unlawful. The decision (see the full judgment here) that the school’s refusal to make an exception to the policy for the child in question constituted indirect race discrimination is likely to have significant implications for those running schools and the practitioners who advise them.

One of the many interesting points in the judgment concerns Collins J’s consideration of the school’s argument that a voluntarily adopted socio-cultural attribute did not attract the protection of the discrimination legislation. Collins J rejected this argument, holding that family and social customs can form “part of ethnicity”, and that cultural, family and social conditions are often what bring a person of a given ethnicity with the scope of the race discrimination legislation.

The decision that the policy could not be objectively justified also requires attention. The school put evidence before the court explaining that more distinctive haircuts (such as cornrows and shaven heads) can become badges of ethnic or gang identity and foster disunity between groups in schools. Such styles were accordingly banned. Collins J did not take issue with this particular aspect of the school’s case. However, the school also argued that it could not make an exception to the policy in relation to a given style (here cornrows) because this would undermine the policy, which had to be applied generally if it was to be effective. Collins J rejected this argument, holding that an exception need only be made where a genuine cultural and family practice made conformity with the policy impossible. This was, Collins J reasoned, little different to the exceptions made for those of different religious belief and would not undermine the generally nature of the policy.

A further argument that differences in treatment between boys and girls amounted to sex discrimination was not upheld.

It remains the case that schools are free to adopt uniform policies, and can require their pupils to adhere to them. However, in the light of this decision it seems that the school must consider making exceptions not only for those of certain religious beliefs, but also for pupils who contend that a cultural or family practice means that they cannot conform. This aspect of the judgment, in particular, is likely to draw the attention of those tasked with managing uniform policies in schools.

Education Bill update

June 17th, 2011 by Peter Oldham QC

The Education Bill had its second reading in the House of Lords on the 14th June, when it was committed to a Grand Commttee. The next stage is consideration by the Committee, due to take place on 28th June.  Thereafter there will be the report, the third reading, consideration of amendments and Royal Assent.

By way of reminder, this is a very wide ranging bill. For a useful summary, see http://services.parliament.uk/bills/2010-11/education.html.

Peter Oldham QC

Consultation

June 17th, 2011 by Peter Oldham QC

The advent of academies, and new admission patterns which may result, could lead to school reorganisations on a considerable scale, particularly in areas which already have significant falling rolls and surplus places.  Worthwhile keeping an eye, therefore, on the Courts’ current approach to consultation obligations. 

The cases, over the last couple of days, of R ota Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1532, 16th June 2011, at paragraphs 21-26, and R ota Robin Murray & Co v Lord Chancellor [2011] EWHC 1528, 16th June 2011, at paragraph 46-47, give some useful guidance.   They were both about the closure of magistrates’ courts, but they remind us that consultation is not negotiation, so that, generally speaking, there is a definite limit on the number of options about which an authority has to consult.  

In the former, the Divisional Court explained R ota Medway Council v Secretary of State for Transport, the Gatwick expansion case, as being the exception and not the rule.  In Medway, the government consulted on the future of air transport, including the possibility of expanding existing airports by building new runways, but, as the Court explained in Vale of Glamorgan, the government:-

“expressly stated that it would not include in the consultation process any options for new runways at Gatwick Airport. One of the grounds of challenge was that at some stage the question of future runways at Gatwick would have to be considered. If that were to happen after Government policy had been formed, it would make it far more difficult in future successfully to overturn that policy whereas if that issue were considered at the stage of forming policy, it would ensure a fair and equal playing field as between competing proposals. Maurice Kay J, as he then was, accepted that submission. The issue of Gatwick would almost certainly emerge at some stage and it was unfair to structure the consultation process in a way which in practice was likely to deprive the claimants of their only realistic chance of arguing in favour of development at Gatwick. The judge thought that once government policy was formed, they would face an insurmountable hurdle in running that submission.”

 Of course, the Vale of Glamorgan and Robin Murray cases don’t affect the requirement to abide by the so called Sedley principles i.e. the requirements that (1) consultation is undertaken when the proposals are still at a formative stage; (2) adequate information is given to enable consultees to respond properly; (3) adequate time is provided in which to respond; and (4) the decision-maker gives conscientious consideration to the response to the consultation.

“Conscientious consideration” will include consideration of different options put forward by consultees in response. So if that happens, the consulting authority will have to consider the option even though it did not consult about it.  And if it decides to modify its proposals so that they are materially different from the options originally consulted about, it may have to re-consult.

Peter Oldham QC

Education (Special Educational Needs) Bill – Private Member’s Bill

June 13th, 2011 by Peter Oldham QC

This Bill has been introduced into the House of Commons by a Conservative MP as a Private Member’s Bill under the Ten Minute Rule.  It received it first reading on 8th June 2011 and there is a provisional date for a second reading, 2nd December 2011.   

The bill aims to increase parental involvement in the provision of education for children with special educational needs. 

It remains to be seen whether the Bill will have government support. The Department for Education has stated that the current Green Paper places “parents’ choice over the education, health and social care needs of their child at the very centre”.

Peter Oldham QC

Information as to Provision of Education (England) (Amendment) Regulations 2011

June 13th, 2011 by Peter Oldham QC

These Regulations will come into force on 6th July 2011. They amend the Information as to Provision of Education (England) Regulations 2008 which set out the information which local authorities must provide to the Secretary of State each year about ecducation in their areas. These new amending regulations impose obligations to provide certain information about Academies as well as maintained schools.  They also change the date by which information has to be provided.

Peter Oldham QC