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Barring decisions and legitimate expectations

December 30th, 2011 by Rachel Kamm

The Claimant in R (on the application of W) v Secretary of State for Education [2011] EWHC 3256 (Admin) was a teacher who challenged the Secretary of State’s decision to bar him from working with children. The Claimant challenged that decision on grounds that it was an abuse of power because it was taken in breach of a substantive legitimate expectation and/or that it breached his rights under the Human Rights Act 1998 (HRA) to a fair hearing (article 6) and to respect for private life (article 8).

The factual background to the decision was as follows. The Claimant was investigated by the Department between 2003 and 2005. The outcome of that investigation was a letter dated 15 April 2005 which (the Claimant submitted) made it clear that no further action would be taken against him in the absence of further misconduct coming to the Department’s attention. It was common ground between the parties that there was no evidence or allegation of any misconduct since that time. On 16 January 2009 the Department wrote to the Claimant informing him that his case was being reconsidered as part of the Historical Cases Review and inviting him to make representations. The Claimant made representations and agreed, as he was out of the country, to his case being decided on the papers. The Secretary of State decided on 6 October 2009 to use his power under section 142 of the Education Act 2002 to bar the Claimant from working with children. The Claimant was informed of his right to appeal to an independent tribunal under section 9 of the Protection of Children Act 1999. The Claimant did not appeal, but instead challenged the decision on public law grounds by way of judicial review.

The Claimant’s claim based on his substantive legitimate expectation failed. Mr Justice Singh gave a useful summary of the key authorities on legitimate expectations (paragraphs 37 to 50 of the judgment). He concluded that the Claimant did have a substantative legitimate expectation, based on the letter of 15 April 2005, that he would not have further action taken against him unless further misconduct came to the Department’s attention: the letter contained a representation to that effect which was clear, unambiguous and devoid of relevant qualification. However, the Secretary of State had satisfied the burden of proving that there was an overriding reason in the public interest which entitled him to change his mind. The test was whether the Secretary of State had a legitimate aim and had acted proportionately. The legitimate aim was of course the manifest and pressing public interest in protecting children, in particular from the risk of sexual abuse. As for proportionality, Mr Justice Singh found that the decision in question was the Secretary of State’s decision to reconsider the Claimant’s case (rather than the Secretary of State’s subsequent decision to bar the Claimant from working with children). He concluded that that decision to reconsider was proportionate, given that:

  • the Secretary of State had only reconsidered cases where it was thought that there might be a current risk to children;
  • the Secretary of State had sought to devise fair procedures which would be followed before a barring order was imposed. This included  the right to make representations, the involvement of an expert panel chaired by an eminent and respected person from outside the department, the advice of the Lucy Faithfull Foundation which had expertise and experience in the field and the opportunity to have a face to face assessment; and
  • there was a right of appeal to an independent judicial body against any subsequent decision to bar an individual from working with children.

Mr Justice Singh commented that in any event he would have dismissed the claim because the right to appeal to a tribunal against the barring decision was an adequate alternative remedy.

Turning to the human rights arguments, Mr Justice Singh briefly considered whether the Court had jurisdiction to consider the claim, given that the Claimant was now resident in Hong Kong. He did not hear full argument on this point but concluded that it seemed that the Secretary of State had exercised jurisdiction over the Claimant by making the barring order (even though the Claimant was then outside the UK) and therefore the Court could consider the HRA claim. However, the article 6 claim failed because that article was concerned with procedural fairness whereas the Claimant’s real complaint was about the substantive decision to bar him from working with children. The Secretary of State accepted that the decision to bar the Claimant interfered with his right to respect for his private life under article 8 but submitted that it was justified and therefore lawful. Mr Justice Singh agreed.

Rachel Kamm

The Independent Adjudicator Adjudicates Independently

December 22nd, 2011 by Christopher Knight

The Court of Appeal has dismissed a challenge the independence and impartiality of the Independent Adjudicator in R (Sandhar) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1614.

The claimant had failed two elements of his final examinations of his final year of a medical degree, resat them on compassionate grounds and failed again. He was excluded from his degree course as a result. The claimant complained to the OIA, but in the course of discussions over the nature of the hearing sought the OIA declined to agree to every procedural route he sought to invoke. The claimant judicially reviewed the OIA on the basis that because it was funded by the universities, it could not avoid the appearance of bias.

The Court of Appeal rejected that contention. It found that the Adjudicator had an express duty to act independently of the OIA Directors, who themselves had a duty to uphold the independence of the Adjudicator. There was no evidence that there had ever been a breach. Applying the well-informed and fair-minded observer test, the Court concluded that the funding from universities went into a central pot, and no individual case-handler could be said to be paid by any one institution. Moreover, there was no evidence of any link between the level of contributions and the success rate of complaints. The reasonable observer would not find there to be the appearance of bias on the part of the Independent Adjudicator. The Court approved the obiter comments of Mr Ockleton (sitting as a Deputy) in R (Budd) v Office of the Independent Adjudicator [2010] EWHC 1056 (Admin) at [98]-[104] and the point can probably now be considered settled.

Funding, Ofstead inspections and Revised Statutory Guidance and Regulations

December 19th, 2011 by Elisabeth Laing QC

1. There are three items to notice from last week.

2. First, on 13 December, the Secretary of State announced details of education funding for 2012-13. This included the Dedicated Schools Grant (DSG), funding for 16-19 education and training, and capital funding for maintained schools, Academies, the voluntary aided sector and 16-19 provision.

3. Second, on 16 December, Ofsted annnounced the framework for school inspections from January 1012, and third, also on 16 December 2011, the Department published on consultation on revised statutory guidance and regulations for exclusions from schools and pupil referral units in England.

1.      Funding    

(1) School funding

4. The current method for funding schools in 2012-13 will continue. The underlying school budget will be kept at “flat cash per pupil” for 2012-13.

5. The overall schools budget will stay at the same level per pupil (before the addition of the Pupil Premium). But the actual level of each school’s budget will vary.  It will depend on local decisions. The budgets of some schools will be reduced. A Minimum Funding Guarantee will continue, in order to protect schools from significant budget reductions.

6. Details of the arrangements, including per pupil funding for each local authority, were to be sent to LAs on 13 December and are on the Department for Education’s website.

7. Also on 13 December a report on the consultation responses on School Funding Reform” was published. The Department will produce further proposals in light of the responses.

(2) Funding for 16-19 provision

8. The Young People’s Learning Agency (YPLA) published a statement on funding for 16-19 education and training for 2012-13. This showed that the Government plans to fund an increased number of places.

(3) Capital funding

9. Funding for 2012-13 will include allocations for the funding for additional places, maintenance, and “devolved formula capital”.  The reason for the one-year allocation is said to be the rapidly evolving picture.

(4) Capital funding for 16-19 provision

10. Over £107 million of capital funding will be available in 2012-13 to meet maintenance and building needs of sixth form colleges and demographic pressures for new 16-19 places in schools, Academies and sixth form colleges. Further sums will be available for more places where there are demographic pressures in schools, Academies and sixth form colleges.

(5) The Capital Review

11. Consultation on the capital review ended in October. The final Government response to its recommendations is due to be published in January 2012.

(6) The Priority School Building Programme

12. The Secretary of State indicated that he should be able to make an announcement in the New Year about which schools will be in the the Priority School Building Programme. Applications are being reviewed by Partnerships for Schools.

2.      Oftsted inspections

13.  The link to the new framework is http://www.info4local.gov.uk/filter/?item=2053994&source=tac-in

14. There will be four key areas which will be judged: achievement, quality of teaching, behaviour and safety, and leadership and management. There will also be focus on how well a school well promotes pupils spiritual, moral, social and cultural development.

15. There will be no graded ‘sub-judgments’ or ‘contributory judgments’.  There will be no separate graded judgments for the Early Years Foundation Stage or the sixth form; these will be assessed as part of the school’s total provision. Value-added measures rather than contextual value-added measures will be used.

16. There will be a greater focus on narrowing gaps between groups of pupils, the quality of teaching and its impact on learning and progress, reading and literacy, and behavior and safety. Inspectors will continue to make specific recommendations for improvements based on their assessment of schools’ strengths and weaknesses. Stakeholders will be involved in the process of inspection. More time will be spent on the observation of teaching.

3. Revised Statutory Guidance and Regulations

17. The link to this is http://www.info4local.gov.uk/filter/?item=2053715&source=tac-in

18.  The revised guidance reflects section 4 of the Education Act 2011 (which is not yet in force). This will change the process for challenging exclusions. IAPs will be replaced by independent review panels (“IRPs”), which will have different powers. Parents will be able to apply to the F-t T in cases where disability discrimination is alleged. One aim of the revisions to the guidance is greater clarity. The intention is that similar regulations to the draft for maintained schools should apply to PRUs and to Academies.

19. The final version of the guidance will be published in July 2012. The new regulations will come into force in September 2012.

20. The policy aim is to support schools to promote good behavior. IRPs will not be able to direct a school to reinstate a child, but will be able to quash decisions of governing bodies, and to order them to reconsider a case. If governors, on reconsideration, decide not reinstate, the school will be expected to contribute to the cost of educating the excluded pupil elsewhere.

21. Parents will have the right to ask for an SEN expert to advise the IRP, even if the school does not recognise that the child has SEN. The revised guidance factors in schools’ duties under the Equality Act 2010. Another policy aim is to reduce exclusions, but also to improve the quality of education for those who are excluded.

22. The changes are detailed and quite extensive, and schools should use the lead-in period before September next year to train governors, head teachers in their new responsibilities.

23. The consultation closes on 17 February 2012. It can be completed on-line.

New College of the Humanities again

December 5th, 2011 by Edward Capewell

Some readers may recall my earlier post back in June about Professor Anthony Grayling’s New College of the Humanities. I referred in that post to “grumpy communications from academics at another ‘New College’” which was a reference to the fact that New College Oxford, founded in 1379 by William of Wykeham, had declared itself ‘grumpy’ at the use of its name by this relative newcomer to the world of higher education. BBC News is today reporting that New College Oxford is awaiting a decision by the Intellectual Property Office on an application it has made under the Trade Marks Act 1994 for its name – ‘New College, Oxford’ -  to be a trade mark. Apparently there is a similar pending trade mark application in respect of the name ‘New College of the Humanities’. It is not known which will be determined first, although according to the BBC, New College, Oxford may seek to challenge the registration of the New College of the Humanities.

New College, Oxford was of course itself once the newcomer. Founded by Wykeham as “the college of St Mary of Winchester in Oxford” it very shortly thereafter became known as ‘New College’, rather than St Mary’s College, because there was already a ‘College of the Blessed Virgin Mary’ which had been founded some 53 years earlier in 1326. By one of those happy accidents of history there is now no St Mary’s College in Oxford. The college founded in 1326 is now ‘Oriel College’. I for one don’t know whether there was any dispute in the fourteenth century over names, but one can be pretty confident that if there was, it didn’t involve the Intellectual Property Office.

Unsuccessful challenge to change from RPI to CPI in public sector pensions

December 5th, 2011 by Jane McCafferty

R (ota) The Staff Side of the Police Negotiating Board and others v The Secretary of State for Work and Pensions and others

A Divisional Court of three judges (Elias LJ, McCombe and Sales JJ) has by a majority rejected the judicial review challenge brought by a number of public sector in R (ota) The Staff Side of the Police Negotiating Board and others v The Secretary of State for Work and Pensions and others [2011] EWHC 3175 (Admin).

Nigel Giffin QC acted for a number of the public sector trade unions. Clive Sheldon QC and Amy Rogers acted for the Government defendants.

The decision under challenge

The challenge was to the Government’s decision to change the basis upon which public service pensions are adjusted to take account of inflation. Such adjustments had been made in line with the Retail Price Index (“RPI”). From April 2011 they are to be made in accordance with the Consumer Price Index (“CPI”). Some of the schemes fix pensions by reference to an employee’s final salary and newer schemes fix it by reference to the average salary over the employee’s career. In both cases the change affects the value of pensions in payment, and in the case of career average schemes, it also affects the way in which the career average is calculated.

It was common ground that the move to CPI has had, and will have, a detrimental effect on pensioners because although there may be some years where CPI will yield a higher increase than RPI, the overall picture is that RPI is typically in the region of 0.75-1% higher than CPI. It has been estimated that the change from RPI to CPI may, through the compounding effect over time, reduce the value of benefits to pension scheme members by as much as 15% on average. The change will affect both pension income and the lump sum which pensioners may take by commuting part of their pension as soon as they retire.

The four grounds of challenge

The public sector unions argued that the decision to change from RPI to CPI was unlawful on the following four grounds: -

(1) the statutory provision for uprating did not permit the use of CPI (CPI uses a ‘geometric mean’ for part of its calculation; RPI uses only the ‘arithmetic mean’);

(2) the financial savings to be made from the switch to CPI was an irrelevant consideration to the statutory scheme for uprating;

(3) the decision was made in contravention of substantive and procedural legitimate expectations of members of public sector pension schemes, and in breach of Article 1 Protocol 1 rights; and

(4) there had been a failure to have due regard to the gender equality duty under the Sex Discrimination Act 1975 (“SDA”).

The Divisional Court dismissed all of the grounds of challenge. McCombe J dissented on the irrelevant considerations ground point.

(1) CPI method was not ultra vires the statutory language

The unions challenged the whole exercise by arguing that the CPI is not an index which the Secretary of State was entitled to adopt in compliance with the obligation under section 150(1) and (2) of the Social Security Administration Act 1992. It was submitted that the obligation under the statute is to compare prices directly. The effect of adopting CPI, because it uses the geometric mean, is that the comparison is not simply as between prices but also takes account – albeit at a low level within the aggregation process (namely, within each category of goods and services in the basket) – of consumer reaction to the increase in price.

The Court rejected this ground of challenge. The Court did not accept that the weighting based on use of the geometric mean involved in the CPI methodology was at odds with Parliament’s intention. It held that the obligation is to make a comparison of the general level of prices and that is what is being done; like is being compared with like. The Court held –

Moreover, in fact all the items in each category of product in the basket are being valued: the price of each item in the category at the beginning of the relevant period is compared with its price at the end to identify the rate of change in price for that item – no item is treated as dropping out of the category in that period, nor is any item added to it. The use of the geometric mean does not affect this; it just means that the rate of change in price of each item is not weighted equally. If it appears to the Secretary of State that this is a proper way to ensure that pensions retain their value, without pensioners receiving either too much or too little, we can see no reason why he should not adopt that index.”

(2) Saving money was not an irrelevant consideration

As to the second ground, the Court was divided.

The unions submitted that the statutory obligation was to determine what as a matter of fact is the increase in the general level of prices over the year. The Secretary of State was said to have “put the economic cart before the statutory horse” in using the need to make savings as the dominant factor in choosing the methodology.

The majority (Elias LJ and Sales J) rejected this ground of challenge, holding that the Secretary of State can perfectly properly say that there are at least two indices which significant bodies of experts say properly measure the change in the general level of prices and will protect the purchasing power of benefits and pensions, and that he accepts that either index will achieve that objective. Once that decision is reached, he can lend his support to one rather than the other for any rational reason. Further, even if the even if the Secretary of State was wrong to have regard to economic considerations when deciding which of the two available indices to adopt, the majority was satisfied that to the high standard required he would have chosen CPI in any event.

McCombe J however dissented on this ground of challenge alone, holding that in identifying the best methodology the Minister is only entitled to have regard to the express purpose identified in section 150(1). “It was not lawful for the Minister to search out the means of measuring price movements with the express purpose of procuring savings. It is not a correct exercise to search out generally acceptable methods of estimation and to make the selection guided by exterior considerations such as a desire to make savings.” McCombe J also dissented on the question of whether, absent irrelevant considerations, the same decision would have been made at the time (on the issue of lawfulness) or today (on the issue of relief). For these reasons, McCombe J would have granted the application for judicial review and quashed the orders.

(3) No legitimate expectation that RPI would remain in use

The unions’ challenge based on legitimate expectations failed on the facts. The Court found that there was never any promise or assurance given, or any practice adopted amounting to any such promise or assurance, which was “clear, unambiguous and devoid of relevant qualification” that RPI would be the index of review in perpetuity.

However, of potentially wider interest was the Court’s obiter remarks about what the consequences would have been had there been a legitimate expectation.

First, the Court saw “considerable force” in the unions’ submission that, if there was in fact a legitimate expectation in law, it was not a proper compliance with the Government’s legal obligation simply to have some regard to the fact that others believed that the expectation existed. Where a legitimate expectation exists, it must be properly and fully taken into account. The Court held that –

The weight given to a promise generating a legitimate expectation would naturally be expected to be greater than the weight, if any, given to the fact that the Government recognises that some may think (wrongly, in the Government’s view) that there was a promise.

Secondly, the Court rejected the unions’ argument that, if a legitimate expectation existed, they were denied the right to be consulted before their substantive expectations based on such promises were defeated. This also failed on the facts. The Court held that, if there had been an obligation to consult, it would have been satisfied by the process of debate with the unions which did in fact occur before the orders were made.

(4) No failure to have due regard to the public sector gender equality duty

The primary challenge was based on the fact that the Secretary of State himself never had regard to the equality impact assessment; only the Chancellor did so. The Court held that the Secretary of State may rely on workings and a review of effects carried out within his department to satisfy the “due regard” requirement, without having personally to read an impact assessment, so long as the task has been assigned to officials at an appropriate level of seniority or expertise. Equally, a Minister may rely on a relevant equality assessment carried out by another Government department as well or better placed than his own to undertake the task, particularly where that other department has policy responsibility in relation to the effects under review.

The Government submitted that the public sector gender equality duty was simply not engaged by the making of the orders under challenge for two reasons.

First, because the making and laying before Parliament of the statutory instrument which effected the change from RPI to CPI were acts connected with “proceedings in Parliament” and therefore were exempt by section 76A(4)(a) SDA.

The Court gave only provisional views on this issue as it had not heard full argument but expressed a view to assist in future cases or on any appeal from its judgment. The Court concluded that, if it were necessary to do so, it would have been minded to find that the exemption in section 76A (4) (a) applied so that the making of the orders under challenge were not subject to the gender quality duty.

Secondly, the Secretary of State submitted that, because section 21A SDA excludes various acts of public bodies concerned with the making of legislation from liability for discrimination, the public sector equality duty in section 76A was also disapplied in these circumstances. The Court rejected this submission holding that there was nothing intrinsically inconsistent with requiring the Secretary of State to have to comply with the “due regard” duty in section 76A(1) when considering the potential impact of subordinate legislation whilst at the same time not being subject to the non-discrimination duty himself when making the legislation. The scope of that duty may be restricted because section 76A(1)(a) requires the Secretary of State to have regard to the elimination of unlawful discrimination, but section 21A prevents the legislative proposals from being unlawful. But that does not mean that the duty is wholly disapplied.

However, interesting as the Court’s analysis of the exemptions to the gender equality duty under the SDA was, it will be of limited practical application to future challenges. This is because there is no general exemption for proceedings in Parliament in the Equality Act 2010. As the Court held, “for the future, the difficult arguments with which we are engaged in this case will not arise and the courts will not have to trace the potentially awkward dividing line between different types of subordinate legislation when determining the application of section 76A.”

Permission to appeal

The Court granted permission to appeal on the first ground of challenge, whether the statutory language permitted the use of the CPI.