House of Lords
|Session 2002 - 03
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In re L (a minor by his father and litigation friend) (Appellant)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re L (a minor by his father and litigation friend) (Appellant)
THURSDAY 27 FEBRUARY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re L (FC) (a minor by his father and litigation friend) (Appellant)
 UKHL 9
LORD BINGHAM OF CORNHILL
1. This appeal concerns the meaning and effect of "reinstate" and "reinstated" in section 67 and related provisions of the School Standards and Framework Act 1998 ("the 1998 Act"). The issue raised is one of importance not only to individual pupils but also to local education authorities, school governing bodies, head teachers, teaching staff and parents.
2. The effective appellant is L, who appears in these proceedings by his father and whose anonymity has been preserved by court order. L was aged just 16, and was embarking on the second term of his GCSE year, when on 22 January 2001 he was (to some extent) involved, with others, in a violent and injurious assault on a fellow pupil in the same year. The assault took place at the J School, which they all attended. On the following day L's head teacher excluded him permanently from the school. In a letter dated 23 January the head teacher notified L's parents of his decision and the reasons for it, stating that L had "kicked the victim several times". The governing body of the school (who are the respondents in these proceedings) reviewed the head teacher's decision at a hearing on 2 February 2001, when L's parents were heard, but the head teacher's decision was upheld and L's parents were promptly informed. They then appealed to an independent appeal panel which heard the appeal on 9 March 2001. The appeal panel allowed the appeal and directed that L should be reinstated immediately. As explained in a letter dated 12 March 2001 to L's parents, the decision to allow the appeal was based on several grounds: there had been significant deviations from recommended investigative procedures; there was concern that other pupils involved in the incident had not been permanently excluded, raising a question whether pupils had been treated equally; there were discrepancies and inconsistencies in the evidence; the evidence did not suggest that L had been involved to the same degree as other excluded pupils; on the balance of probabilities the appeal panel concluded that L had not been guilty of the specific behaviour of which he had been accused in the head teacher's letter (kicking the victim several times); permanent exclusion was not an appropriate response. During the hearing L told the appeal panel that he had aimed a kick at the victim, but had missed. He had no record of fixed term exclusions, and the head teacher believed him normally to be an honest pupil.
3. A meeting was held between the head teacher, the chairman of the governing body and L's parents on 20 March 2001, when the head teacher told the parents that the teachers at the school were unwilling to teach or supervise L and were balloting on industrial action, but that L was reinstated on the school roll. The meeting ended prematurely when L's parents left. The parents understood the head teacher to have said at the meeting that L "would not be allowed to return to the school between now and his GCSEs later this year", and they instructed solicitors who wrote on 21 March threatening proceedings. The head teacher replied by return, saying that he had made it clear to L's parents that L had been reinstated on the school roll and the school was now responsible for his continuing education. The purpose of the meeting, he said, had been to discuss how the school proposed to discharge both its obligations to L and its obligations to other pupils and members of staff.
4. On 23 March 2001 the head teacher wrote to L's parents in these terms [as anonymised]:
On L's return to school on Monday 26 March he was given a document bearing the name of the school and signed by the head teacher which, as anonymised, read:
L did not rejoin mainstream classes at the school. He spent the school day in a room about 10 feet square, initially as the only pupil until he was joined by another pupil who had also been excluded over the same incident but whose appeal to the appeal panel had also succeeded. L was told that he must remain in the room (save for toilet breaks) throughout the day. He was not permitted to speak to or associate with any other pupil (until joined by the other pupil, and then only to and with him), or to staff members save for his supervisor and any other staff member who wished to visit him. He took his GCSEs in a different room from other pupils. He was not allowed to participate in communal acts of worship.
5. A maths teacher who had taught at the school before retirement but was not a trade union member was engaged to supervise L (and, in due course, the other pupil) and also taught him (and the other pupil) maths. Otherwise L received no face to face tuition, although teachers in other subjects set work and marked it. Evidence from the school suggested that this regime had proved beneficial to L's educational performance, but this was a view strongly challenged on behalf of L.
6. In a letter of 19 March 2001, the Association of Teachers and Lecturers (one of the trade unions with members among the teaching staff) told the school of its intention to hold a ballot on 27 March on industrial action in connection with the teaching and supervision of L. In a letter of 20 March a second union with members at the school, the National Association of School Masters/Union of Women Teachers, followed suit, giving notice of a ballot to be held on 28 March. Both ballots were duly held. Eight of the nine ATL members balloted by the ATL supported industrial action short of a strike, the only course of action on which the ballot was taken. Of twenty five NASUWT members, asked whether they were prepared to take part in either strike action or industrial action short of a strike in furtherance of the dispute concerning the head teacher's direction to teach L, only a minority favoured the former but all of the twenty four who responded favoured the latter course. The summer term was due to begin on 23 April 2001 and on that day the head teacher attended meetings first with the members of the staff who were union representatives, when it was indicated what members were and were not willing to do, and then with the chairman of the governing body and regional officers of the unions. It was indicated by the regional officers that the action balloted upon would be continued indefinitely. It was common ground in this case that, but for the decision of the teachers and the teaching unions to refuse to teach or supervise L, he would have been reintegrated into ordinary classroom life.
The statutory and regulatory framework
7. The public educational system in England is underpinned by two reciprocal obligations. First, an obligation is placed on the parent of every child of compulsory school age to cause that child to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have, either by regular attendance at school or otherwise (Education Act 1996, "the 1996 Act", section 7). This obligation is complemented by an obligation placed on local education authorities to secure that there are enough schools in their area to provide primary and secondary education of sufficient variety for pupils of different ages, abilities and aptitudes (the 1996 Act, section 14). Local education authorities must also arrange for the provision of suitable education at school or elsewhere for school age children who have been excluded from school (the 1996 Act, section 19(1)) and schools established for this purpose are known as "pupil referral units" (the 1996 Act, section 19(2)).
8. Local education authorities are required to exercise their functions with a view to securing the provision of a balanced and broadly based curriculum (the 1996 Act, section 351(1), (3)) and the implementation of the National Curriculum (the 1996 Act, section 357(1)(a)). These responsibilities are shared with the Secretary of State (the 1996 Act, section 351(2)), governing bodies (the 1996 Act, section 351(4); Education (School Government)(Terms of Reference)(England) Regulations 2000 (SI 2000/2122), "the 2000 Regulations", regulation 8(4)) and head teachers (the 1996 Act, section 351(4); the 2000 Regulations, regulation 8).
9. The governing body is responsible for directing the conduct of a maintained school (the 1998 Act, section 38(1),(2)) and exercising a strategic role in the direction of the school (the 2000 Regulations, regulation 4(1),(2)). The head teacher is responsible for the internal organisation, management and control of the school and for implementing the governing body's strategic framework (the 2000 Regulations, regulation 5).
10. In the field of discipline the governing body must ensure the pursuit of policies designed to promote good discipline (the 1998 Act, section 61(1)) and must make and review a written statement of disciplinary principles (the 1998 Act, section 61(2)). The governing body may not delegate these responsibilities (Education (School Government)(England) Regulations 1999 (SI 1999/2163), "the 1999 Regulations", regulation 42(1)(k)). But the governing body must establish and delegate to a pupil discipline sub-committee of the governing body the functions conferred on it in relation to the exclusion of pupils (the 1999 Regulations, regulation 42(3)), and provision is made for dealing with emergencies (the 1999 Regulations, regulation 48(3)). The head teacher is responsible, consistently with the governing body's statement of principles, for promoting and securing good standards of conduct and discipline and must make his disciplinary code known to pupils and parents (the 1998 Act, section 61(4)-(7). It is recognised that a head teacher may penalise breaches of disciplinary rules by the imposition of sanctions which may, where appropriate, include removal from the group (in class); withdrawal of break or lunchtime privileges; detention; withholding participation in any school trips or sports events that are not an essential part of the curriculum; withdrawal from (for example) a particular lesson or peer group; completion of assigned work or extra written work; carrying out a useful task in the school. But humiliating and degrading punishments are impermissible. This is the effect of DfEE Circular 10/99 (July 1999), "Social Inclusion: Pupil Support", paragraphs 4.11-4.12, which was guidance issued by the Secretary of State under section 68 of the 1998 Act to which head teachers, governing bodies and local education authorities are required to have regard.
11. The most severe sanction available to a head teacher is to exclude a pupil from the school, whether for a fixed period or permanently. This power, conferred by section 64(1) of the 1998 Act, may only be exercised by the head teacher, and it is a disciplinary power: section 64(3) and (4). Exercise of the power is closely regulated. The head teacher may not exercise the power to exclude a pupil from the school for one or more fixed periods amounting in total to more than 45 school days in any one school year: section 64(2). The head teacher must without delay take reasonable steps to inform the parent of a pupil aged under 18 of the decision: section 65(1),(2). If the head teacher excludes a pupil and the pupil, as a result, is excluded for a total of more than five school days in any one term or loses the opportunity to take a public examination, or if the head teacher excludes a pupil permanently or decides that a fixed-period exclusion should be permanent, the head teacher must inform not only the parent but also the local education authority and the governing body of his decision and his reasons for making it: section 65(3),(4).
12. Where a governing body receives information pursuant to section 65(4) it must consider the circumstances of the exclusion and any representations made about it by the parent or the local education authority, convening a meeting at which the parent and the local education authority may make oral representations: section 66(1),(2). Section 66(3) provides:
If the governing body decides that the pupil should be reinstated, it must give a direction to the head teacher (section 66(4)), who is required to comply with it (section 66(5)). If the governing body decides that the pupil should not be reinstated, it must inform the parent, the head teacher and the local education authority of its decision (section 66(6)(a)) and, if the pupil is excluded permanently, give certain additional information (section 66(6)(b)).
13. By section 67 of the 1998 Act, a local education authority must make arrangements to enable a parent to appeal against a decision of a governing body under section 66 of the Act not to reinstate a pupil. Schedule 18 of the Act governs the composition and procedure of independent panels constituted to hear such appeals. The decision of the appeal panel is binding on the parent, the governing body, the head teacher and the local education authority: section 67(3). The Secretary of State has no power to consider complaints against the decisions of independent appeal panels: Circular 10/99, Annex D, para 54. Where the appeal panel decides that a pupil should be reinstated, it must either direct that he is to be reinstated immediately or direct that he is to be reinstated by a date specified in the direction: section 67(4).
14. In Chapter 6 of Circular 10/99 the Secretary of State gave guidance on the use of exclusion. It was stated (paragraph 6.5):
It was recognised that a decision to exclude a child permanently was a serious one, and the Secretary of State did not expect a head teacher normally to exclude permanently a pupil for a one-off or first offence (paragraph 6.6).
15. A broadly similar regime has been established to govern appeals against permanent exclusion from pupil referral units. These are not involved in the present case. It is however worthy of note that regulation 8 of the Education (Pupil Referral Units)(Appeals Against Permanent Exclusion)(England) Regulations 2002 (SI 2002/2550) provides:
16. L sought judicial review of the J School's decision communicated to him in the head teacher's letter of 23 March 2001 quoted in paragraph 4 above. His complaint, simply put, was that the regime described in that letter did not amount to reinstatement and so did not give effect to the appeal panel's decision that he be reinstated. L's application came before Henriques J who on 26 April 2001 gave judgment dismissing it:  EWHC Admin 318. In doing so the judge relied on the decision of Richards J in R (C) v Governors of B School  ELR 285, where a similar question arose. Addressing the meaning of reinstatement, Richards J said (at page 294):
Henriques J followed C because he agreed with the reasoning behind it and was attracted by the consequences of accepting it (paragraph 27 of his judgment). The Court of Appeal (Thorpe, Clarke and Laws LJJ) agreed:  LGR 561;  EWCA Civ 1199. In a leading judgment with which the other members of the court concurred, Laws LJ said (in paragraph 26):
17. To reinstate is, as defined in the Oxford English Dictionary, "to reinstall or re-establish (a person or thing) in a place, station, condition, etc; to restore to or in a proper state, to replace". This is the sense in which the expression has long been understood in the courts of both Scotland and England. In William Dixon Ltd v Patterson 1943 SC(J)78 at 85 Lord Cooper stated:
Tucker J in Hodge v Ultra Electric Ltd  KB 462 at 466 spoke to similar effect:
In a provision first enacted in section 69(2) of the Employment Protection (Consolidation) Act 1978, an order of re-instatement is now defined in section 114 of the Employment Rights Act 1996 to mean an order that "the employer shall treat the complainant in all respects as if he had not been dismissed".
18. Exclusion is a severe disciplinary sanction. Its object and effect are to shut out the pupil from the premises and the life of the school. So long as the pupil is excluded (which may only be at lunchtime: Circular 10/99, Annex D, paragraph 2) he is denied access to the school and its facilities enjoyed by other pupils. It prohibits his physical presence within the school and participation in any of its activities. But in the case of a fixed term exclusion that is all it does. The pupil does not cease to be a member of the school, and the school does not cease to be responsible for him. This is made plain by paragraph 6.7 of Circular 10/99 which provides:
Where the exclusion is permanent the prohibition of physical entry by the pupil into the school is supplemented by a final severing of the relationship between the school and the pupil, and the pupil's name is no doubt removed from the school roll.
19. What, then, is required of a school where, as here, the appeal of a permanently excluded pupil has been allowed and his reinstatement ordered by an appeal panel in a decision binding on the governing body, the head teacher and the local education authority under section 67(3) of the 1998 Act? The answer is in my opinion clear. He must (subject to what is said in paragraph 22 below) be put back in substantially the same position as he was in before he was excluded. Nothing less will deliver what the statute promises and requires.
20. I cannot accept that the requirement of reinstatement is met merely by restoration of a formal relationship between school and pupil or by the school's formal resumption of responsibility for the education of the pupil. This is to take an unrealistic and legalistic view of a practical educational situation. What has to be reinstated is a pupil, not a legal relationship.
21. That reinstatement in this context means substantial restoration of the status quo before the exclusion so far as practicable is clear not only from the meaning and legal usage of this expression, considered above, but also from the disciplinary scheme of which exclusion forms part. Reference has already been made (paragraph 14 above) to the guidance given in paragraph 6.5 of Circular 10/99 concerning re-integration after fixed term exclusions. Reintegration is also envisaged where an appeal against permanent exclusion is allowed. Thus in Annex D of Circular 10/99, paragraph 13, the Secretary of State's guidance provides:
In the case of an appeal panel, the guidance provides (Annex D, paragraph 46):
If all that had to be reinstated was a formal relationship, it is hard to see why that could not always take effect immediately. The possible need for delay arises from the need, which may exist, to plan for the re-integration of the excluded pupil. But the delay must be short, because it is recognised that the longer the period during which the pupil has been excluded from participation in the ordinary routines of school life the harder the process of reintegrating the pupil is likely to be. It is noteworthy that even when a pupil is permanently excluded from a school, speedy reintegration into another mainstream school is envisaged as the norm. Thus Chapter 7 of Circular 10/99, "Re-integration", opens in this way:
As noted in paragraph 15 above, even pupils at a pupil referral unit, if successful in an appeal to the panel against permanent exclusion, are entitled either to a direction that they be reinstated or (if practicality precludes such a direction) to a determination that it would otherwise have been appropriate to give such a direction.