Judgments - In re L (a minor by his father and litigation friend) (Appellant)

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    22. The question whether a pupil has been reinstated must be approached as one of substance and not of form. Depending on the nature of the incident giving rise to the exclusion, it might well be prudent, for example, to adjust the composition of classes or the teaching timetable to avoid confrontation, allay justified fears and prevent repetition. It might be necessary to phase the pupil's reintegration over a short period. If a pupil were found to have committed serious acts of unlawful violence when playing football, it would not be objectionable if he were denied the opportunity to take part in that sport. It would be absurd and impracticable to insist that a pupil's regime after reinstatement should be identical to that before exclusion in every minute particular. But the pupil must be substantially reintegrated in the social and educational life of the school and nothing short of that will do.

    23. The regime imposed upon L denied him access to any part of the school save the single room in which he was confined, any access to the facilities of the school, any contact with any other pupil (save, after a time, his sole companion) and any face-to-face teaching by any member of the current teaching staff of the school. This was not the regime to which he had been subject before he was excluded. It was not reinstatement. It is true that the room in which he was confined was within the school, and to that extent he was not physically excluded, but his exclusion from the communal and educational life of the school was all but complete and the room could have been anywhere. It is not helpful to ask whether, exclusion apart, the head teacher could have imposed this regime on L in exercise of his ordinary disciplinary powers. I would certainly not accept that he could, but whether he could or not it is clear that L was not subject to this regime before he was excluded and the direction was that he be reinstated. Nor do I find persuasive the examples given by Laws LJ in paragraph 26 of his judgment (see paragraph 16 above). There are, of course, many physical and emotional reasons why a pupil may be excused certain school activities in which other pupils take part. But L suffered from no physical or emotional disability which prevented his reintegration. His head teacher accepted as much. In his second witness statement made on 23 April 2001 he said (in paragraph 29):

    ". . . I accept that the current arrangements cannot continue if [L] enters the Sixth Form. [L] must be fully reintegrated into the School and I will discuss how this is to be achieved with the unions and Governors."

As already noted (paragraph 6 above), it is common ground that but for the decision of the teachers and the teaching unions not to teach or supervise L, he would have been reintegrated into ordinary classroom life. As it was, he was not reintegrated and because he was not effect was not given to the binding decision of the panel that he be reinstated.

    24. Both Henriques J and the Court of Appeal concluded that the head teacher and the governing body made the best arrangements they could, given the unwillingness of the teachers to teach any class of which L was a member and the threat thereby posed to the education not only of L but also of all the other GCSE candidates in his year, whose interests had to be considered and given weight. This may no doubt be a sound conclusion, but it does not affect the issue of reinstatement. L was either reinstated or he was not. There is no room for a conclusion that he was reinstated to the greatest extent possible in the circumstances.

    25. Some argument was addressed to the question whether, and to what extent, the head teacher and the governing body properly had regard to the views of the teachers. It was, however, a somewhat hobbled argument, since the answer was likely to depend on whether the action of the teachers and the teaching unions was actionable, a question which could not be explored in the absence of the teaching unions (which were not parties to the application) but which the House has now addressed in the parallel case, heard at the same time, of P v National Association of School Masters/Union of Women Teachers [2003] UKHL 8. In the light of that decision, I do not think it useful to discuss this question further.

    26. It was argued on behalf of L that his treatment following his return to school on 26 March 2001 infringed the requirement in the first sentence of article 2 of the First Protocol to the European Convention on Human Rights that "No person shall be denied the right to education". It is however plain that there are situations in which educational regimes may have to be adapted to meet particular circumstances (for example, where a child of compulsory school age is in hospital or in custody), and the House was referred to no case in which it has been held that the convention right to education is violated in a case such as this. To the extent that L was treated differently from others it was because the teachers refused to teach him and did not refuse to teach others. I would not uphold this claim.

    27. L is now 18, and has left school, so there can be no question of effective reinstatement. But I would for my part make a declaration that the arrangements communicated in the head teacher's letter of 23 March 2001 did not amount to reinstatement of L as a pupil at the J School in accordance with the decision of the appeal panel made on 12 March 2001.


My Lords,

    28. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons which he gives, I would allow the appeal.

    29. The opinions of the majority will enable the scheme of Chapter V of the School Standards and Framework Act 1998, which gives an appeal panel the power to require that an excluded pupil should be reinstated, to continue in uneasy co-existence with the right of the teachers, as declared in today's decision of your Lordships in P v National Association of School Masters/Union of Women Teachers [2003] UKHL 8, to take industrial action to prevent that from happening. The majority decision achieves this result by deeming the pupil to have been reinstated even though he remains entirely excluded from the school community. On the one hand, the school is treated as having complied with the direction of the appeal panel and on the other hand none of the teachers are required to teach him or supervise him in or out of the classroom.

    30. It may be said that the decision avoids the school being in breach of its statutory duty in a case in which industrial action has prevented it from complying with the panel's direction. But I think that this papers over a real problem which ought to be addressed. The Act does not say that industrial action should be force majeure which excuses the school from complying with a direction to reinstate. Perhaps it should. That would be openly to acknowledge that whatever might be the views of an independent panel, it is not in the end practical to force people to teach a pupil whom they consider is preventing them from fulfilling their professional obligations to the other children in the class. The alternative would be to ban industrial action inconsistent with a decision by the governors or appeal panel to reinstate, thereby reversing your Lordships' decision in P v National Association of School Masters/Union of Women Teachers. The objections to this course of action are too obvious to need stating and I doubt whether it could even be contemplated without a change in the appeal process which gave the teaching staff a greater participation than they have now.

    31. It is not for your Lordships in your judicial capacity to express any views about what might be done to resolve the present conflict that exists between the scheme of the 1998 Act and the right of teachers to take industrial action. But conflict there is; and I do not think it is helpful to wish it away by an interpretation of "reinstatement" which nearly empties that notion of practical content.


    32. This case raises a question under s.67 of the School Standards and Framework Act 1998 which provides for the parent of a pupil at a maintained school to be able to appeal against a decision of the governing body of the school not to reinstate a pupil who has been permanently excluded from the school by the head teacher to an independent appeal panel. The independent panel may determine that the pupil be reinstated, directing that he is to be reinstated immediately or by a specified date. The decision of the independent panel on such an appeal is to be "binding on .... the governing body [and] the head teacher ..." The case of the appellant 'L' is that the governors and the head teacher of 'J' school were in breach of this provision because they failed to "reinstate" 'L' after an independent panel had directed that he be reinstated.

    33. Some observations need to be made at the outset about s.67. It applies only to permanent exclusion cases. The head teacher has under s.64(1) the power to exclude a pupil from the school either for a fixed period or permanently. Neither power can be exercised save by the head teacher (s.64(3)) and there is a limit upon the cumulative length of time for which a pupil can be excluded short of permanent exclusion (s.64(2)). The words "exclude" and "exclusion" are limited to exclusion from the school on disciplinary grounds (s.64(4)); beyond this they are undefined. "Reinstate" is not defined. Whilst s.67 is limited to permanent exclusion, ss.65 and 66 apply to both limited and permanent exclusion from the school and s.66 requires the governing body to review any exclusion and gives them the power to direct reinstatement and the head teacher is obliged to comply with their direction. Whereas the power of the governing body to direct reinstatement is expressly limited to cases where it would be practical (s.66(3)), the power of the independent panel is not so qualified (67(4)).

    34. The issue on this appeal turns on the application of the statutory requirement of s.67(3) and (4) to the facts of this case, the salient features of which I will have to identify. It is a practical problem which needs to be put in its context. A school is a complex organic entity. Its function is to provide education. To succeed in fulfilling this function it is essential that the various human beings involved work successfully together as an educational entity. The relationships are not one-to-one as with a tutor and a solitary student. The teaching of the pupils has to be a collective activity in which the teachers and pupils interact successfully and individual pupils do not obstruct or imperil the education of others. It is a truism that one or two disruptive pupils can prevent the remainder from enjoying their right to a proper education; the assertion of a liberty by one may involve, for others, the denial of their rights. Similarly each pupil has the right to a safe environment; the assertion of a liberty by one or more pupils to socialise with and inflict violence on or to victimise or bully another will involve a denial of the rights of that other. The responsibility of teachers and the head teacher are owed to the body of pupils as a whole not merely to an individual pupil in isolation. The duties, including the duty to educate and to preserve safety, are underpinned by the more basic duty to maintain discipline. This is a duty of each teacher within his sphere of activity and of the head teacher overall. Part of the duties of the head teacher is punishment in support of the maintenance of discipline.

    35. But the practical considerations do not stop there. The head teacher's freedom of action is circumscribed by the limitations upon the resources he has at his disposal. Constraints may arise from the school premises he is provided with, the number and quality of teachers, his ability to incur additional expenditure, the demands of the curriculum, the timing of examinations. Further, he is dependent upon the cooperation of the teaching staff. If a particular course of action is going to lose him that essential cooperation, he is going to have to make difficult choices balancing his responsibilities towards the pupil body as a whole and his own belief in that particular course of action. The duty of the head teacher in such cases is to draw upon his own professional skills and experience and make the responsible decisions within the constraints to which he is subject.

    36. Permanent exclusion from the school is the ultimate disciplinary sanction. It illustrates the logic of what I have said since, more often than not, it prefers the interests of the school, ie the education of the pupil body, over those of the excluded individual. Typically it is, so far as the school is concerned, tantamount to an admission of defeat and, so far as the undisciplined pupil is concerned, merely an aggravation of his problems. It involves a final termination of the school-pupil relationship. The pupil is no longer part of the school and the school no longer has any responsibility for the pupil or obligations towards him. In s.67 the word reinstatement is clearly used in the sense of the reversal of that termination. The school-pupil relationship has to be reinstated and the responsibilities and obligations of the school towards the pupil resumed. How well those responsibilities and duties are thereafter performed by the school is a separate question unless the resumption can be shown to have been a sham or to be so nugatory as to evince an intention not in truth to resume them at all. The test is stringent and is directed to the realities not mere formalities. But anything less than this is a failure in the performance of those duties not a failure to reinstate. The real complaint of the appellant was, to quote the words used by those acting on his behalf, a failure, after he returned to the school, to "reintegrate him fully into the social life of the school" which they say was an important part of his education. I will return to whether in the circumstances there was any breach of any kind of duty owed to him but, on any view, the quoted complaint demonstrates that the complaint is not about reinstatement but about the quality of the education which he was receiving after he had been reinstated. His complaint would be exactly the same if, instead of being excluded, he had from the start been made subject to the special remedial measures subsequently adopted.

    The Facts:

    37. The school is a voluntarily aided secondary school run on comprehensive lines with an intake of over 200 pupils. L was at the time 16 years old. During the lunch break of Monday 22 January 2001, L was part of a group of boys who took part in a concerted and vicious attack upon another boy, 'A', from the same school year. It took place when they had cornered A in the lavatories. Besides being very severely frightened, A was repeatedly stamped on and kicked and suffered substantial injuries. The extreme seriousness of the incident has never been in dispute. What has been disputed by the appellant L is what physical acts he personally committed during the assault. Having investigated the incident close to the time it occurred and taking account of his knowledge of the school and its pupils, the head master concluded that L had kicked A several times while A lay on the ground. During the hearing before the independent panel, L told its members that he had aimed a kick at A but had missed. The panel in its decision letter of 12th March 2001 concluded that on the balance of probabilities L had not kicked A a number of times.

    38. After his investigation, the head master, on 23rd January exercised his power under s.64 to exclude L permanently. The school governors considered the exclusion in accordance with s.66 and decided that L should not be reinstated. L exercised his right under s.67 to appeal against the permanent exclusion to the independent panel which, after a hearing at which the head master gave evidence but otherwise had no right to attend, determined that L should be reinstated. This decision was communicated to the school by the letter dated 12th March. The ground of their decision was that the panel did not consider that permanent exclusion had been appropriate having regard to the view they took of the evidence. It appears that they may also have been influenced by the complaints of L's father about the handling of the matter by the head master.

    39. The panel's decision was with immediate effect and was, as previously stated, binding upon the governors and the head master. After a further unhappy meeting between L's parents and the head master on 20th March, the head master by a letter dated 22nd March specifically reaffirmed in writing that L has "been reinstated on the school roll and that the school [is] now responsible for his continuing education" in accordance with its obligations under s.67.

    40. The head master was however encountering problems both with the teaching staff and with making arrangements which adequately recognised his own duties towards other pupils, their education and their safety. The solution which the head master found to these problems was to institute a special regime for L which involved teaching him separately from the rest of the pupils making use of a specially engaged teacher and segregating him socially from the other pupils. The details have been set out in the Opinion of my noble and learned friend Lord Bingham of Cornhill. Counsel for the appellant did not suggest that the head master acted otherwise than in good faith. It was further accepted that the special regime was drawn up not as a punishment but as a practical response to the educational and disciplinary needs of the school overall. L returned to the school on 26th March. It is an agreed fact that but for the refusal of the existing teaching staff to teach or supervise L, L would have been reintegrated into ordinary classroom life. But, in the circumstances, that further step was not one which was open to the head master. Whether the special regime probably led to L doing better or worse in his exams than he otherwise would have done given his two months absence is apparently something upon which opinions differ. The school believes that the special regime led to an improved performance.

    41. By 26th March there were only some 10 days left before 6th April which was the end of that term. The following term began on 23rd April. On 18th May, full teaching of L's year stopped and study leave began in order to enable the pupils to prepare for their GCSE examinations later that month and in June. The head master continued his efforts to obtain greater cooperation from the regular teaching staff but he was not successful and the special regime was continued until the pupils left to revise.

The Proceedings:

    42. These proceedings were started by way of judicial review on 3rd April 2001. The decision objected to was described as the "decision communicated in a letter dated 23rd March to reinstate" L. The letter of 23rd March followed on that of the previous day from which I have already quoted. The letter of the 23rd was the letter in which the head master first filled out for L's parents the specific arrangements which were "being made to provide for [L's] education at the school". He reminded L's parents that he, the head master, had a duty to have regard to the health and safety of all the children in the school and then went on to explain what was involved.

    ".... [L] will be provided with work and a teacher in a room isolated from the mainstream of the school. He will not return to the classroom but will be taught privately. He will not be allowed to circulate with other pupils at any stage in the school day. ....."

This letter led to the response dated 27th March from the appellant's solicitors (effectively their letter before action) which said:

    "...... Your failure properly to reintegrate [L] into the school is not a proper compliance with your duties to [L]. Unless we hear from you that he will properly be integrated and not ostracised in the way the school is proposing, and at the risk to his GCSEs, we are instructed to proceed."

Thus it can be commented that at the start the actual complaint was not about reinstatement or non-reinstatement but about reintegration into the general life of the school and what would be the effect upon his GCSE results of the quality of the education which he would receive.

    43. The application for judicial review was argued before Henriques J. The argument raised the primary issue whether or not L had been reinstated. There was also a secondary argument whether the head master could take into account to any extent a threat of industrial action by the teaching staff. About six months before the present case came on before Henriques J, a judgment had been given by Richards J in ex parte C [2001] ELR 285 upon the same questions. Henriques J stated that he agreed with Richards J and followed his decision. He concluded that if Richards J was right the regime in the present case "most certainly" did amount to reinstatement. On the facts, Henriques J found -

    "the head teacher and the governing body have done everything within their power, from the moment of communication of the panel's decision, to reinstate L within the restraints imposed by the threat of industrial action and the necessity to have regard to the interests of the pupils as a whole."

    "In all the circumstances I am satisfied ... that L is no longer being excluded from the school. .......... I am satisfied that [the school has] had regard to the relevant interests of both excluded pupils and the other pupils and have done everything in their power to try to achieve a balance between the competing interests, and above all, that the [school] have not acted with a view to defeating the appeal panel's decision on the basis that they were mistaken."

    44. The Court of Appeal heard the appeal at the same time as that in ex parte C. They upheld the judgment of Richards J and dismissed the appeal in the present case. Laws LJ giving the leading judgment said, echoing words of Richards J:

    "Like Henriques J, I consider that Richards J's approach to the sense to be given to 'reinstatement' in the Act of 1998 is correct. A pupil is reinstated if he is no longer excluded. The notion of reinstatement cannot in my judgment demand a precise, or even an approximate, restoration of the conditions in which the pupil's life at school was carried on before his exclusion. There may be all manner of factors which will require different conditions. ..... The reality is that once he is reinstated, his exclusion is cancelled and he is to be treated like any other pupil; and in respect of any pupil, special or particular measures or initiatives may be required at any time."

On this approach, the Court of Appeal found that the conclusion of Henriques J that L was no longer being excluded from his school was, on the facts, "beyond the possibility of serious challenge".

    45. The further question of the relevance of a strike threat by the teaching staff (which was common to both ex parte C and the present case) was also considered. They rejected the submission that any unlawfulness of the strike threat would itself make any exercise of discretion which took the threat into account also unlawful. The headmaster's and the governor's discretion has to take all the circumstances into account in deciding how best to discharge their duty towards all the pupils in the school including the one in question.


    46. The jurisdiction of the independent panel solely relates to the exercise of the power of permanent exclusion and its sole power is to require that the pupil be reinstated. In so deciding, the panel can be basing itself on, for example, the fact that proper procedures were not followed or that the disciplinary offence, although as stated by the school, did not justify permanent exclusion or that the evidence adduced before the panel did not sufficiently prove the school's factual conclusions. Any such decision therefore may leave untouched the basic problem which gave rise to the pupil's permanent exclusion in the first place. If the pupil had not been permanently excluded his indiscipline, the damage which it did to the functioning of the school and the risks which it disclosed would have had to be dealt with in some other way. To require the school to treat the incident as if it had never happened and to treat the pupil as if he had never offended is not merely wholly impractical but gives the decision of the independent panel a content beyond that authorised by the statute.

    47. I agree with all the judges in the present case, following the lead give by Richards J, that the essence of the order of reinstatement is the reinstatement of the pupil-school relationship. It is this relationship which was terminated by the permanent exclusion and which must be reinstated. Reinstatement like exclusion is not a mere formality. It is not a mere matter of adding a name to a list or striking it out. It is the resumption of a relationship and status which carries with it duties and rights. It is therefore always necessary to start by asking whether the school is acting in good faith or whether the purported reinstatement is a sham. But the present case, by common consent and the unchallenged finding of fact of Henriques J, raises no such question. The factual conclusion that L was reinstated is, as the Court of Appeal in effect said, inescapable. That is fatal to this appeal.

    48. The appellant's complaint is, as I have already observed, about the special regime for L which the school adopted in good faith and having regard to the interests and, it may be said, rights of the pupil body as a whole. This was a matter of making educational and managerial choices which is a matter for the school and lies wholly outside the jurisdiction of the independent panel and the scope of its decision. It is wrong to treat a requirement of reinstatement as involving a judgment on the quality of the educational and managerial decisions which the school makes after resuming its relationship with the pupil. It is obvious that a pupil who has committed a serious disciplinary offence for which he was thought to merit permanent exclusion, may, when that solution is found to be not available, still have to receive special treatment. Trust may have been destroyed; the capacity and inclination to disrupt may be undiminished; the risk of physical injury to others may still exist. Factors such as these may not unreasonably lead to responses from the teaching staff which, unless accommodated, put at risk the education of some or all of the other pupils in the school. The introduction of a suitable regime to address appropriately these concerns when no permanent exclusion is proposed is wholly outside the scope of the scheme in ss. 64 to 67 of the Act. The same applies when, after reinstatement, the school judges it right to introduce such a regime for the reinstated pupil.

    49. If it is to be said that the special regime for L was not in fact good enough to be consistent with reinstatement, there are two answers to be given to this argument. Firstly it is contrary to the concurrent findings of fact of the courts below and no basis has been provided for substituting a different finding, nor is it the function of a court on judicial review to substitute its own view for that of the person chosen by statute to make the relevant decision. Secondly, the evidence does not cross the line into showing that the reinstatement was no more than a fiction. Inconsistency is not in this context a qualitative criterion or a matter of degree. It is not enough to say that L did not enjoy all the same privileges and liberties exactly as the other pupils. That would rule out any special regime for the reinstated pupil and deprive the head master and the governors of their right and duty to manage the school. One can also test it this way. If the headmaster had decided at the outset to do no more than introduce the special regime for L, could it be said that he had exercised his power under s.64 to "exclude" L from the school? Obviously not. It would be a misuse of that word as used in s.64. It follows that if the regime can be introduced beforehand without thereby excluding the pupil it can be introduced afterwards without creating any inconsistency.


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