M (A Minor) v Independent Appeal Panel Of London Borough Of Wandsworth & Anor

The claimant, M, a minor who brings his claim through his mother and litigation friend, challenges the decisions of the second defendant, the governing body of Nightingale School of the 17^th October 2003, and of the first defendant, the independent appeal panel of the London Borough of Wandsworth (the IAP) permanently to exclude him from Nightingale School.

M, who was born on 8^th October 1988, is a child with special educational needs. Nightingale School is a special school for children with emotional and behavioural difficulties with 60 pupils, all of whom are subject to statements of a special educational needs.

THE FACTUAL BACKGROUND

At the time M was under close supervision by his Tutor, Vivien Wood. According to the report that Ms Wood made about the incident she and M walked down the stairs into the main reception area of the school at about 3.00 pm. She had been having a one to one session with him. She went on to a staff de-briefing, but at about 3.10 pm M came to the staff room wanting to see her. He told her that he had picked up a knife at the bottom of the stairs and that he wanted to hand it in. He then showed her where he said that he had picked it up, namely at the bottom of the stairs. She challenged him saying that she had not seen him pick it up. They then went together to the office, where M handed the knife to Ms Burford, who says in her report that she asked why he had not handed it to her when he was in reception, and that he replied that he had found the knife under the stairs leading up to the residential area.

Ms Wood then reported the incident to the Head Teacher who came to the reception area where he saw M who told him that he had handed the knife in. Mr Murphy the Head Teacher, asked M to leave the school and said that he would be in contact with his parents. Mr Murphy then asked for a written report from Ms Wood.

At about 7.30 a.m. on the following day, 8^th October, the Head Teacher received a telephone call from the claimant’s mother, Mrs SM, about the incident. He told her that he was aware of what had happened and that his preliminary view was that the incident did not warrant permanent exclusion. Her recollection is that the Head Teacher told her that M had found a penknife on the school premises, had gone to the school office, where Ms Burford had seen it and asked for it but that M had refused to give it to her and said that he would give it to the Head Teacher. She recalls that the Head Teacher told her that “he was not going to permanently exclude M as he felt that it was a silly incident and that he had done the right thing.”

Later that morning the Head Teacher received the formal incident report from Ms Burford. He says in his witness statement that having read the report of Ms Burford and studied the video CCTV footage, his view changed, and he came to the conclusion that the evidence did not support M’s account of having found the knife. It is to be noted that in fact the CCTV camera was not positioned so as to cover the area in which M had said that he had picked up the knife. In any event the Head Teacher decided to recommend that M be permanently excluded for bringing the weapon into the school. At about 10.30 that morning he telephoned the Chairman of the Governors to discuss the matter, explaining that he now considered that it was his duty, in accordance with the School’s Behaviour Management Policy, permanently to exclude M. Having spoken to the Chairman of the Governors, he telephoned Mrs SM to inform her of his decision, apologising for having given a different view earlier that morning.

On the same day the Head Teacher wrote to Mrs SM giving formal notification of his decision and saying inter alia:

“… the decision to exclude M has not been taken lightly. M has been excluded permanently for bringing a knife onto the school site. Please see attached report.”

The letter also explained that the School Governors Discipline Committee (The ‘Discipline Committee’) would need to consider the exclusion.

By further letter dated 8^th October Mrs SM was notified of the meeting of the Discipline Committee to be held on 14^th October. On 10^th October Mrs SM replied to the Head Teacher expressing the view that the exclusion was totally unnecessary and enclosing a statement by M about the incident. In the statement he said that he had not brought the knife into the school and that –

“… I found the knife in question on school premises, under the stairs nearest to the school office. When I saw it I picked it up with the intention of handing it to Mr Murphy.”

The statement later continued –

“Siobhan (Ms Burford) saw the knife and got upset with me, she said I would be excluded from school for having a knife, there was a parent sitting in the waiting are, who was also witness. I told Siobhan that I would give the knife to Vivien (Ms Wood) which I did. Vivien then made me give the knife to Siobhan.

On reflection I should have given the knife to Siobhan straight away, but she made me upset about being excluded from school. I would never have hurt anyone; it was just a silly mistake.”

M and his mother duly attended the meeting of the Discipline Committee. Notes of the meeting have been produced both in their original handwritten form and as a typescript. Both Ms Burford and Ms Wood gave their account of the incident and Mrs SM was given the opportunity to ask them questions.

The Discipline Committee decided to uphold the Head Teacher’s decision permanently to exclude M. His parents were informed of the decision by letter dated 17^th October, the critical passage of which read as follows:

“The reasons for the Committee’s decision are as follows:

In view of the school’s Behaviour Management Policy which clearly states that being in possession of a weapon will result in a permanent exclusion, the Disciplinary [sic] Committee of the Governors upheld the Head Teacher’s decision to permanently exclude M. We very much hope you are able to find alternative satisfactory provision for M’s education.”

M’s parents then exercised their right of appeal against the decision on grounds that it was “ … severe and too harsh in the particular circumstances and therefore unjust”.

The appeal before the IAP took place on 21^st November. Mrs SM attended and made representations on her son’s behalf. The panel also heard representations by the Head Teacher, Mr Wickham on behalf of the Discipline Committee and read a statement by Mr Andrews of the local education authority. The panel also read the reports by Ms Burford and Ms Wood. As in the case of the Discipline Committee contemporaneous notes of the hearing before the IAP have been produced both in their handwritten form and as a typescript.

By a decision letter dated 24^th November, the IAP notified Ms SM that the appeal was not allowed and that the IAP had decided that M should not be re-instated at the school. The decision letter summarised the representations made by Mrs SM, noting her contention that the Behaviour Management Policy did not allow for the handing in of weapons, and that she disagreed with the Head Teacher’s view that not to have taken the action that he did, would have sent the wrong message to other pupils. The critical passages in the decision letter are in the following terms –

“Before arriving at their final decision on your appeal, the Panel firstly considered whether M was responsible for the actions that had resulted in his permanent exclusion from the School. The Panel was satisfied that M had been responsible for the incident, outlined in the case papers, namely that he had in his possession, on School premises, a knife. The Panel noted that, in evidence, M did not deny he had a knife, although he challenged that it was his knife and that he had brought it into school, and stated that he was in the process of handing the knife to a School representative.

The Panel then had to consider whether permanent exclusion was a reasonable response to M’s actions. In so doing, the Panel took into account the Department for Education and Skills … Guidance, and related Circulars. The Panel also took into account the Schools’ published Behaviour Management Policy which states:-

“The use of Exclusion will be used if:

… being in possession of a weapon (this will result in an immediate permanent exclusion)”.

In reaching a decision on your appeal the Panel were of the view that consideration had to be given to the interests of the School, not only in terms of the need to establish and maintain discipline, but also to safeguard the welfare of other pupils and members of staff. The Panel noted that M had been given fixed –term exclusions on previous occasions.

Taking account of all the related factors the Panel decided, unanimously, that the decision of the School’s Disciplinary Panel was the correct one and would be upheld.”

THE LEGAL FRAMEWORK

The relevant Regulations are the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002. The Regulations relating to the constitution and procedure of Appeals Panel are set out in the schedule to the Regulations. For present purposes the only paragraph of the schedule that is necessary to set out is paragraph 14 –

“14.

The decision of an Appeal Panel and the grounds on which it is made shall –

(a)

Be communicated by the Panel in writing to the relevant person, the Local Education Authority, the Governing Body and the Head Teacher, and

b)

Be so communicated by the end of the second working day after the conclusion of the Hearing of the appeal.”

The Secretary of State’s guidance as to the nature of conduct warranting permanent exclusion is set out in ‘Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units(DfES/0087/2003)’. Part 1 ‘THE DECISION TO EXCLUDE’ contains the following guidance –

“1.

Introduction

1.1

A decision to exclude a pupil should be taken only:

(a)

in response to serious breaches of the school’s behaviour policies: and

(b)

if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

1.2

Only the Head Teacher or teacher in charge of a PRU (or, in the absence of the Head Teacher or teacher in charge, the most senior teacher who is acting in that role) can exclude a pupil.

1.3

A decision to exclude a child permanently is a serious one. It will usually be the final step in a process for dealing with disciplinary offences following a wide range of other strategies, which have been tried without success. It is an acknowledgement by the school that it has exhausted all available strategies for dealing with the child and should normally be used as the last resort.

1.4

There will however be exceptional circumstances where, in the Head Teacher’s judgment it is appropriate to permanently exclude the child for the first or ‘one off’ offence. These might include:

(a)

Serious actual or threatened violence against another pupil or a member of staff.

(b)

Sexual abuse or assault.

(c)

Supplying an illegal drug.

(d)

Carrying an offensive weapon.

… … …

1.5

These instances are not exhaustive, but indicate the severity of such offences and the fact that such behaviour can affect the discipline and well-being of the school community.

1.6

In cases where a Head Teacher has permanently excluded a pupil for:

(a)

One of the above offences or

(b)

Persistent or defiant misbehaviour including bullying (which would include racist or homophobic bullying) or repeated possession and/or use of an illegal drug on school premises, the Secretary of State would not normally expect the Governors’ Discipline Committee or an Independent Appeal Panel to reinstate the pupil.”

As stated in the decision letter dated 24 November 2003 the Nightingale School Behaviour Management Policy states that being in possession of a weapon will result in permanent exclusion.

THE GROUNDS OF CHALLENGE

The second preliminary point is that it was submitted on behalf of the defendants that any unfairness in the decision by the Discipline Committee was cured by the hearing by the IAP. The submission was advanced in reliance upon the decision of the Court of Appeal in R (DR) v Head TeacherofSt George’s Catholic School[2003] LGR 371, in which the Court considered the effect of unfairness in the proceedings before the Governing body but a fair hearing before an IAP. The main judgment was given by Simon Brown LJ who said at para 43:

“43.

If, of course, in any particular case the prior procedural unfairness can be shown in some way to have tainted the subsequent appeal process, then the appeal decision itself will necessarily be unsustainable. As Lord Wilberforce said in Kelvin vCarr [1990] AC 574, 593 … there may be cases were ‘ the defect is so flagrant the consequences so severe, that the most perfect ofappeals or re-hearings will not be sufficient to produce a just result’. No doubt Lord Keith had that passage in mind where he said in Lloyd v McMahon [1987] AC 625, 697 … that ‘there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash (the first-tier) decision on that ground’. Save in circumstances such as those, however, I for my part find it difficult to think of any case in which a decision reached upon and otherwise fairly conducted appeal by an independent tribunal following a full merits hearing should be impugnable byreference to unfairness at an earlier stage …”

At paragraph 45 he went on to hold that the claimants’ rights to a fair determination of their respective cases against permanent exclusion were satisfied in each case by the IAP hearing and determination.

Miss Brown did not seek to contend that in this case the defects upon which she sought to rely in relation to the hearing before the Discipline Committee are such as to have contaminated the hearing by the IAP, and accordingly did not seek to persuade me that this case was to be distinguished from DR. It follows that in my judgment the submission on behalf of the defendants that the issue in this case is whether there is a sustainable challenge to the decision of the IAP is correct.

Before considering M’s challenge to the decision by the IAP, there is a further preliminary issue to be addressed. The defendants seek to rely upon statements from John Murphy, the Head Teacher, Graham Wickham, the Chair of the Discipline Committee, Sian Mathias the Chair of the IAP, Simon Davies, Chair of the Governors of Nightingale School and Peter Hayward, a member of the Discipline Committee. Miss Brown took objection to the admission of such evidence. In essence she submitted that the witnesses advanced reasons for the decisions at each of the three stages which differed from the reasons given in the relevant decision letters, and that they amounted to an ex post facto justification for such decisions. She helpfully directed my attention to a number of decisions in which this issue has been addressed, and I accept that evidence that simply amounts to an ex post facto rationalisation of a decision is not admissible. But evidence which is directed to informing the Court as to what happened at the material times is unobjectionable. I am satisfied the evidence given by the witnesses in question is directed to an explanation of what happened at each stage of the process. Furthermore in the course of argument it became clear, as was readily acknowledged by Miss Brown, that a number of her submissions were in fact founded on the content of such witness statements. In those circumstances I decided to admit such evidence.

THE GROUNDS OF CHALLENGE TO THE DECISION BY THE IAP

But in the course of her submissions Miss Brown developed the alternative submission that if that challenge is not made out, the decision was nevertheless flawed as the IAP failed to make the findings of fact upon which their decision purported to be based, and that in consequence the decision was irrational.

As to the principal ground of appeal it is first necessary to consider the content of the decision letter. In my judgment it is clear from the letter that the IAP did not decide the issue of whether M should be permanently excluded by reference solely to the School Behaviour Policy. The letter noted that the Panel had considered the representations made by Mrs SM and in particular the point made by her that the Policy did not allow for the handing in of weapons. It is also clear that IAP took account of M’s version of events, namely that he had not brought the knife into school and that he was in the process of handing it in. The decision letter goes on to state that having taken such matters into account, the IAP then had to consider whether permanent exclusion was a reasonable response to his actions, and it was at that stage that they took account of the Behaviour Management Policy.

It is therefore clear from the decision letter that the IAP took account of the material considerations and did not resolve the issue by a slavish adherence to the Behaviour Management Policy.

Furthermore that conclusion is borne out by the records of the hearing before the IAP, both the contemporary note made by Mr Couchman, the clerk to the IAP, and in the somewhat expanded version written by him after the event and annexed to the witness statement of Mr Murphy. It is also borne out by the first witness statement from Sian Mathias, the Chair of the IAP. She asserts that it was the role of the IAP to re-investigate the circumstances giving rise to the exclusion and to come to an independent view. At paragraph 8(b) of her witness statement she says –

“If we had felt that M had found the knife and was on his way to hand it in, we would have overruled the permanent exclusion.”

At paragraph 7 she asserts that the IAP took account of the Schools policy, but also looked at all the facts of the case in arriving at their decision. Those assertions are borne out by the contemporary note.

It follows that in my judgment the first and primary ground of challenge to the decision by the IAP is without any substance.

The alternative ground, developed by Miss Brown in the course of her submissions, was that the IAP failed to make the findings of fact upon which the decision purported to be based, and, in consequence was irrational. The critical questions were whether M had brought the knife into the school, the conclusion at which the Head Teacher arrived, or whether he had found it, and if the latter, whether he was intending to hand it in.

As to the first, it is clear from the contemporary notes and from the witness statement from Ms Mathias that the IAP were not satisfied that M had brought the knife to the school with him. That in itself demonstrates that the IAP was quite properly taking an independent view of the incident.

As to the second, it was common ground that M had not handed the knife to Ms Burford when first asked to do so. But thereafter the accounts from M and Ms Burford diverged, he saying that he wanted to hand it to Ms Wood, she saying that he said that he was going to throw it away and pretended to do so. According to the witness statement from Ms Mathias the IAP came to the conclusion that he was not initially intending to hand it in. The passage from paragraph 8(b) set out in paragraph 27 above continues as follows:

“It would have been unreasonable for permanent exclusion to have been used if M was behaving responsibly. Most of our discussions concentrated on this issue. However we were sure that M was not planning to hand in the knife and that he did not do so when first asked.”

The contemporaneous notes are not of course a complete record of the Panel’s discussions, but again they bear out Ms Mathias evidence that this central issue was addressed by the IAP.

I am satisfied that the IAP made the critical finding of fact upon which their decision was based, namely that M was not intending to hand in the knife. The next question is therefore whether there was material before the IAP upon which they could properly arrive at that conclusion. In my judgment there plainly was. It was open to them to infer from the fact that M did not hand in the knife when first asked to do so by Ms Burford, that he was not then intending to do so.

Miss Brown also sought to argue that the decision was irrational on the basis that M’s failure to hand in the knife when first asked to do so was not sufficiently serious to warrant his permanent exclusion. In my judgment the IAP was justified in coming to the view that the incident was so serious that permanent exclusion was justified. It was fully entitled to take the view that the possession of a knife in such circumstances was an extremely serious matter, a view borne out by the Secretary of State’s Guidance, and in particular paragraph 1.6 of part 1 set out at paragraph 17 above.

It follows that in my judgment there is no substance to the alternative ground of challenge to the decision by the IAP.

Finally it is necessary to address two further points advanced by Miss Brown. First she submits that there was a procedural impropriety in that the decision letter of 24^th November 2003 was drafted by Mr Couchman, the clerk to the IAP, and not by the IAP itself. In her first witness statement Ms Mathias stated that “I had no input into the letter although Mr Couchman may have forwarded it to me for information.” In her second witness statement she corrected that evidence by reference to a contemporary exchange of e-mails from which it is clear that she was sent the draft decision letter by Mr Couchman and approved its contents. In my judgment that process is unobjectionable.

Miss Brown made the related point that the inaccuracy in Ms Mathias’ first witness statement exposed by the e-mails annexed to her second witness statement, calls into question her general reliability as a witness, and that her evidence should be disregarded in so far as it bears on the reasons for the decision at which the IAP arrived. The discrepancy certainly gave cause for caution in the approach to her evidence; but as I have observed, support for her evidence is to be found in the contemporaneous notes.

The final point to which Miss Brown drew my attention is that Ms Burford gave a different account to the Discipline Committee from that contained in her report of the incident to the Head Teacher. In the report she stated that she saw M opening up the knife and then asked him to give it to her, whereas according to the contemporary note of the hearing before the Discipline Committee Ms Burford said that M had “laid knife on reception in front of glass”. Secondly in her report Ms Burford had made no mention of telling M that having the knife could lead to permanent exclusion, whereas in her account to the Discipline Committee she said that “M pretended to throwknife out of door – but didn’t. Wouldn’t hand it in, despite being reminded of perm. exclusion.”

Ms Burford did not attend the hearing of the IAP; and although the second of those discrepancies was brought to the attention of the Panel, the first was not. But in my judgment knowledge of the first would not have affected the outcome of the hearing before the IAP. It is common ground that Ms Burford saw that M had a knife. Whether or not he laid it on the reception counter is immaterial. Secondly it is common ground that he did not hand over the knife when asked to do so. The IAP had Ms Burford’s report, but had it also been aware that she expressly warned him about the exclusion policy, then his failure to hand over the knife would have been no less serious.

It follows that this application is dismissed.