N, R (on the application of) v The Independent Appeal Panel of London Borough of Barking and Dagenham

This is a renewed application for permission to appeal against the decision of Mr Michael Supperstone QC, sitting as a deputy High Court Judge, given in the Administrative Court on 3 March 2008. The deputy judge granted the applicant permission to seek judicial review of the decision of the Independent Appeal Panel (“the IAP”) of the respondent borough made on 2 February 2007. By that decision an earlier decision of the governors of a school (I will simply refer to it as “the school”) not to reinstate the applicant as a pupil following her permanent exclusion by the head teacher was upheld. Having granted permission, however, the deputy judge dismissed the substantive judicial review application.

The applicant was 13 in 2006. She suffers from attention deficit hyperactivity disorder (“ADHD”) which means, and it seems this is uncontentious, that she has a disability within the meaning of the Disability Discrimination Act 1995 (“the DDA”). The school is a maintained comprehensive secondary school. Between November 2005 and June 2006 the applicant had been subject to a series of fixed-term exclusions from the school for destructive and difficult behaviour. There had been I think four such exclusions ranging from four days to sixteen days in duration. The applicant’s mother brought an appeal against these exclusions to the Special Educational Needs and Disability Tribunal, to which I will refer by the acronym SENDIST, alleging that the exclusions had discriminated against the applicant on grounds of her disability. Such an appeal lay under section 28I of the DDA. The SENDIST hearing took place over two days in November and December 2006. The second of these dates was thus after the applicant’s permanent exclusion which was directed on 9 November 2006 and to which I will return shortly. The decision of the SENDIST was given on 28 December 2006. They allowed the appeal and held the exclusions were discriminatory and not justified. They rejected the school’s argument that the applicant had simply behaved badly, finding rather that her behaviour was related to her disability. They held that the school had failed to make reasonable adjustments in dealing with the applicant’s disability before imposing the fixed-term exclusions. They ordered that an apology should be given, training undertaken by the governing body and a note placed on the school file concerning the legality of the exclusions or the lack of it. The governing body of the school appealed to the High Court. The appeal was heard immediately before the judicial review application relating to the permanent exclusion and was dismissed by the same deputy judge.

The applicant’s permanent exclusion was occasioned by a series of incidents or alleged incidents between September and November 2006. The applicant was the subject of a statement of special educational needs which took effect in fact after the fixed-term exclusions. The allegations giving rise to the permanent exclusion were undoubtedly similar to the events which had given rise to the fixed-term exclusions. The governors having decided not to reinstate the applicant, her mother appealed to the IAP. Among other things she claimed that the permanent exclusion had violated the DDA. I should note that her appeal was not to SENDIST under section 28I but to the IAP under section 28L, the latter being the prescribed appeal route for complaints of disability discrimination in relation to permanent as opposed to fixed-term exclusions. The IAP dismissed the appeal. They found that the incidents happened as the school had alleged. Their judgment is before us; I need not take time reading it out.

Mr Giffin QC for the applicant submits, as he submitted before the learned deputy judge, that this conclusion was diametrically opposed to what had been found by the SENDIST only five weeks earlier. The principal point on this application is that the IAP should have taken account of the SENDIST decision. Mr Giffin does not of course submit that the IAP was bound by SENDIST. He acknowledges the two tribunals were dealing with different incidents at different times. But he says the issues were very close in character and time, and the IAP should at least have considered the reasoning and conclusions of SENDIST. That is no more than a reasonable requirement of consistency in the public interest.

It is clear however that the IAP expressly decided to pay no regard to the SENDIST findings. Mr Giffin says that is an error of law. The SENDIST conclusions were a material consideration for the IAP to consider. Mr Giffin has relied on authority including observations of the House of Lords in R (von Brandenburg) v Tower Hamlets LBC [2004] 2 AC 280, which with great respect I need not set out for the purposes of this application. The deputy judge rejected this case. He gave reasons at paragraph 24 of his judgment. Mr Giffin assaults the reasoning of the judge. His argument is elaborated in a helpful skeleton submission. There is a subsidiary argument that the IAP gave no legally sufficient reasons for their conclusion that the applicant’s behaviour was not disability-related.

It seems to me that the principal point taken by Mr Giffin merits permission to appeal. Mr Giffin may well be right to submit that arguments on the DDA will not infrequently come before both SENDIST and the IAP in relation to the same child. There is plainly, he would say, a public interest in seeking coherence and consistency between the two bodies. For my part I consider that that is plainly an arguable point and may well be correct.

There has been what at first seemed to me to be an impediment to the grant of permission. Time of course has moved on since the events in question. The applicant has made it clear that she has no wish to return to the school . We are told this morning that her mother in fact made a decision to that effect before the appeal to the IAP was heard or at least before it was determined, and it seems there is indeed no question of the applicant returning now to the same school.

It is clear from that last provision that it would be open to the panel to entertain the merits of the applicant’s appeal on a rehearing, if the court so ordered, for the purpose not of deciding whether in fact she should be reinstated, but rather to decide whether the original decision was or was not correct.

It is plainly a matter of importance for this girl whether or not she has against her name, so to speak, a record of the kind of misconduct found by the IAP in their decision on the appeal.

For all those reasons I would grant permission.

I agree.