LB, R (On the Application Of) v Independent Appeal Panel of Newport City Council

This is an application for judicial review of a decision made by the defendant appeal panel. Permission to apply was granted on the papers by the single judge (His Hon. Judge Vosper, QC, sitting as a judge of the High Court.)

The Claimant is a child, LB, who acts by her mother and litigation friend, SB, and who challenges the decision of the defendant panel (“the IAP”) to uphold her permanent exclusion from Bassaleg Comprehensive School (“the School”) in respect of which the first interested party, the Council, is the local education authority, and the second interested party is the governing body.

LB joined the School in year 7 in September 2014 when she would have been 11 years of age. The School’s records refer to a diagnosis of attention deficit hyperactivity disorder (“ADHD”) which had been made when LB was at infant school. The only significance of that is that it was accepted to be a protected characteristic in Equality Act terms in proceedings before the Defendant and the interested parties, to which reference will be made below.

LB was placed in a small group with a higher level of support during year 7. The School’s behaviour records show that reports of LB’s behaviour indicated that it had deteriorated during year 9 (i.e. from about age 13), but no incident in that year is relevant to the issues in these proceedings.

The incident that led to permanent exclusion took place on 11 January 2017. LB had been one of a number of girls who were separated by staff following some verbal altercation between two groups, and one or more of the girls in the other group was being escorted by a teacher, Mrs Sullivan, into an office. LB, who had been told to go to a different part of the School, pushed against the office door, refusing to let it shut, and then forcibly pushed the door against Mrs Sullivan. LB said (in an account emailed by her mother) that she had then slapped one of the other girls. Other evidence suggested that LB had attempted to hit one of the other girls (“pupil 2”) but did not do so, instead striking Mrs Sullivan.

Mrs Sullivan’s account, which was accepted by both the head teacher and the governing body, and also by the defendant panel, was in terms which follow.

“While I was trying to close the door [LB] started screaming and trying to get inside. I kept asking her to leave but she put her body weight behind the door and it slammed into my chest and pushed me backwards towards [pupil 2] as she was trying to get to [LB]. [LB] then came into the room, ignored the fact that I was stood in front of her. She shouted “Get out of my f____ way to me and when she couldn’t get past after jostling me against [pupils 2 and 3] she pushed me out of the way with her arm and I fell against the desk.”

The child’s mother, SB, was contacted immediately after the incident and asked to take LB home. She was then telephoned the same evening and told to keep her out of school pending a meeting at the school on 17 January 2017. At that meeting, it seems to be common ground that SB was effectively told by the head teacher that LB was to be permanently excluded, and was asked to sign a form requesting a “managed move” to another school but without any details of what the proposed managed move would involve. LB’s understanding was said to be that by signing the form she would be agreeing to permanent exclusion and that it was not explained to her that a managed move could be an alternative to permanent exclusion. Be that as it may, SB declined to sign the managed move form at that meeting, and subsequently received a letter dated 17 January 2017 informing her of the head teacher’s decision to exclude LB permanently from Thursday 19 January 2017. This letter stated that,

“[LB] has been excluded permanently because she has physically assaulted a member of staff and a fellow pupil.”

The decision to permanently exclude was considered by a meeting of the discipline committee of the School’s governing body on 2 February 2017. The exclusion was upheld in the terms that follow.

“A decision to exclude a learner …” [i.e. a pupil] “ … permanently is a serious one and is the final step in a process of dealing with disciplinary offences after following a wide range of strategies. However, in exceptional circumstances permanent exclusion can be for a one-off offence of serious actual violence against another learner or a member of staff.

“This was a case of violence against a pupil and a member of staff. The Committee has therefore decided to uphold the decision of the head teacher to exclude [LB] permanently.”

(For some reason which is not entirely clear the word “learner” is used in official guidance interchangeably with the word “pupil”, which may account for the governing body’s use of both terms. There is no difference.)

On her daughter’s behalf SB appealed to the IAP, which sat on Friday 17 March 2017. During the IAP hearing, the head teacher said that LB had been temporarily excluded from 11 January 2017, and that she had decided to convert the temporary exclusion to a permanent exclusion after considering the evidence of Mrs Sullivan.

The IAP’s conclusions were as follows.

The Welsh Government has published guidance on exclusion from schools and pupil referral units, most recently in April 2015. The following parts of that guidance are relevant to this case:

“1.1

The decision to exclude

1.1.1

A decision to exclude a learner should be taken only:

• in response to serious breaches of the school’s behaviour policy

and

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

….

1.1.4

There will,…, be exceptional circumstances where in the headteacher’s judgement it is appropriate permanently to exclude a learner for a first or one-off offence. These might include:

• serious actual or threatened violence against another learner or a member of staff

….

1.1.5

In most cases it would be appropriate for schools to inform the police if they believe such a criminal offence has taken place. ….

…

1.5

Alternatives to exclusion

1.5.1

Exclusion should not be used if alternative solutions are available. Examples include the following.

…..

• Managed move: if a school feels that it can no longer manage the behaviour of a particular learner, the school may arrange, normally through the LA, for another school to take over the learner’s education. This should only be done with the full knowledge and cooperation of all parties involved, including the parents/carers and the LA, and in circumstances where it is in the best interests of the learner concerned. Parents/carers should never be pressured into removing their child from school under threat of a permanent exclusion…

The Welsh Government has also issued an Information Document in respect of “Effective managed moves” which describes a managed move as (paragraph 1.1) “a carefully planned transfer of a pupil from one school into another” which might be appropriate inter alia where (paragraph 1.2) a pupil is “at risk of permanent exclusion”. The guidance states that “[m]anaged moves should not be used merely as an alternative to permanent exclusion as this would be denying parents and pupils the right to appeal against the exclusion” and sets out (at paragraph 1.4) a detailed process for setting up a managed move, beginning (1.4.2 para 1) with “[d]iscussions between the Headteacher, parents/carers and the pupil.”

The guidance makes it clear that only in “exceptional circumstances” will it be appropriate to exclude a pupil for a one-off offence. Counsel for the Claimant submitted that the School had expressly stated before the IAP that “the incident itself led to the exclusion, not the behaviours leading up to it.” Thus, the submission went, in order for the IAP to find that the decision for permanent exclusion was in accordance with the Guidance it was necessary for it to have found that exceptional circumstances of the kind listed at paragraph 1.1.4 of the Guidance applied. The School’s case, as stated in the decision of the governing body to uphold the permanent exclusion (although not expressly so recorded by the IAP), was that this was a case of serious actual violence against another “learner” or a member of staff.

Ms Ward, counsel for the Claimant, submitted that the decision in this case was flawed as it does not contain any express consideration of whether LB’s conduct amounted to “serious actual violence.” She submitted that the evidence was not clear in relation to the degree of violence (if any) against Pupil 2: the only direct evidence was LB’s own statement recorded in her mother’s email that she had “slapped” Pupil 2.

The IAP stated that it had relied in particular on Mrs Sullivan’s statement, but that said nothing about LB hitting Pupil 2. In respect on the assault upon Mrs Sullivan herself, the head teacher had accepted before the IAP that LB had not used “deliberately targeted aggression” towards her. Miss Ward made the point that by paragraph 1.1.5 of the guidance [supra] it was provided that, “[i]n most cases [of serious actual or threatened violence or other criminal offence] it would be appropriate for schools to inform the police …” but that had not happened here. The absence of any consideration by the panel of whether the head teacher should have reported the matter to the police was itself indicative not of a high level of seriousness, but of a relatively low level.

Counsel for the Claimant submitted that the challenge was not on the ground of perversity or of irrationality, but on the ground that the panel had failed to ask itself the relevant question and thus had not taken into account a relevant matter. In those circumstances the IAP “had failed to address the first key issue to which it was directed by the Guidance, namely whether the offence in this case was sufficiently serious, exceptionally, to justify permanent exclusion for a ‘one-off’ offence.” Putting the matter in a different way, the panel had not had ‘proper regard’ to the Guidance, or (alternatively) had materially erred in its approach to whether paragraph 1.1.4 was satisfied.

Counsel for the IAP submitted that any challenge on the basis that the IAP had failed to spell out the fact that it had concluded that this was a case of “serious actual violence” was (in effect) an argument of form over substance. The question which the panel had to consider was not whether it considered the violence used in the incident to be serious but whether “the incident generally” including the violence was “serious.”

The IAP, Mr Morris submitted, clearly considered the essential point: the “gravity of the incident” was referred to, as was the “serious nature of the incident”. In its decision the IAP expressly stated that “the incident warranted a permanent exclusion sufficient to fall into the ‘exceptional circumstances’ category”.

For counsel for the Claimant to suggest that the IAP failed to address the issue of whether the conduct had been sufficiently serious, exceptionally, to justify permanent exclusion for a single instance was not, Mr Morris submitted, a sustainable point in the light of the findings of fact made by the IAP. It had come to an entirely reasonable, if not inevitable, conclusion that those facts amounted to serious actual or threatened violence within the relevant definition, which did not require there to have been serious consequences, still less serious injury resulting from it: the Guidance included merely threatened violence. In assessing whether a particular offence could reasonably fall within the definition, an IAP (or school or governing body) must be permitted to consider whether it constitutes a serious incident of violence (actual or threatened), taking into account all of the circumstances of the case.

I asked counsel to consider whether, in a document which described itself simply as “guidance”, the phraseology

In answering that question in the negative, counsel for the Claimant, made reference to a case involving judicial consideration of identically-worded guidance on this point, by Ms. Belinda Bucknall QC, sitting as a deputy judge of the High Court, in the case of Regina (G) v IAP of London Borough of Bexley [2008] EWHC 3051 (Admin) in which she said that

“Since the Claimant had been permanently excluded because of a one-off act, the Defendant had to consider whether what had been done constituted “serious actual violence” within the scope of … the guidance.”

and that:

“[t]he exceptional circumstance referred to … clearly involves an intentional targeting of the victim “violence against”; mere undirected violence, even if by chance a member of staff becomes a victim of it, will not fall within the scope of the paragraph. Intention, therefore, had to be investigated….”

With all due respect to the judge’s view, I am not sure that any element of specific intent (if that is what she meant by “intentional targeting”) would be necessary, but that part of the judgment might be regarded, in any event, as obiter since it was not essential to her decision.

The words to be construed need not be subjected to the rigours of the principles of statutory construction since that they are not the words of a statute. They are words of guidance only. What they do provide, however, is the need for a clear focus. Essential to that focus, it seems to me, is the concept of “serious actual violence” (this not being a case of threatened violence) as it would be understood by a reasonable and independent appeal panel.

If the IAP had taken the view in this case that relatively minor actual violence may constitute an exceptional case of “serious actual violence” justifying permanent exclusion, by reason of the surrounding circumstances in terms of insolence, premeditation, or other factors, they should, in my judgment, have said so in terms, giving reasons for their decision. As the single judge put it:

“[i]t was necessary… for the defendant to be satisfied that the claimant’s conduct included such serious actual or threatened violence. It is the violence (actual or threatened) which must be serious. It is arguable that the defendant never made a finding that the violence in this case reached that level. …. [the panel] … refers to the “gravity of the incident” and to the “serious nature of the incident” but does not conclude that the violence… was serious. …. A finding that the claimant used or threatened serious violence was a condition of her permanent exclusion if the guidance was to be followed.”

I respectfully agree with and adopt those observations, and since the panel did not clearly make a finding that the claimant had used or threatened serious violence, the view the panel took of the claimant’s behaviour generally is beside the point. In those circumstances it is in my view appropriate to grant the application for judicial review on this ground, and to grant the Claimant the relief sought, which is essentially a reconsideration of the case by the panel in the light of this judgment.

In view of the urgency of the matter, the new academic year being so close at hand, I shall express my view upon the other grounds for the application in the briefest terms.

So far as proportionality is concerned, the guidance states at paragraph 1.1.1 that a decision to exclude should only be taken “if allowing the learner to remain in school would seriously harm the education or welfare of the learner or others in the school”. Counsel for the Claimant submitted that the decision of the IAP neither gave direct consideration to this point, nor did it set out what the risks to the welfare of others in the school might be which outweighed the interests of the Claimant in being permitted to remain. In particular, there appeared to have been no assessment of any risk that the Claimant might behave in such a way again, nor (if they thought there was) of such means as might be available to the school to reduce or avoid such a risk. Whilst there was no suggestion that allowing the Claimant to remain in the school would result in harm to her own education or welfare, the basis for any view that allowing her to remain in the school would result in harm to the education or welfare of others is not spelt out.

Counsel for the IAP robustly disputed these assertions. Mr Morris submitted that the IAP had expressly considered the issue of proportionality within its decision, beginning with the words:

“The Panel then went on to consider whether a permanent exclusion was justified and proportionate in all the circumstances of the case”

at p.195 of the trial bundle.

The criticism that the panel failed to spell out its reasons for its finding on proportionality in detailed terms in its decision is not an irresponsibly made point. The panel could, and perhaps should, have given greater detail of the balancing exercise. However, I accept the points made by Mr Morris that the panel had adequate regard to the principles involved, and had this been the only ground for the application for judicial review it might very well have resulted in the refusal of the application.

As already mentioned above, the claimant’s mother had been contacted immediately after the incident and asked to take LB home. She was then telephoned that evening and told to keep LB away from the school pending a meeting on 17 January 2017. At that meeting, Miss Ward submitted that,

“SB was effectively told that LB was to be permanently excluded, and was asked to sign a form requesting a ‘managed move’ … but without any details of what the proposed managed move would involve. Her understanding was that by signing the form she would be agreeing to permanent exclusion; it was not explained to her that a managed move could be an alternative to permanent exclusion.”

SB declined to sign the managed move form at the meeting, and subsequently received a letter dated 17 January 2017 informing her of the head teacher’s decision to exclude LB permanently from Thursday 19 January 2017. In dealing with the matter that way it is submitted that the head teacher failed to follow the guidance, as it requires that,

“… if a school feels that it can no longer manage the behaviour of a particular learner, the school may arrange, normally through the LA, for another school to take over the learner’s education. This should only be done with the full knowledge and cooperation of all parties involved, including the parents… and the LA, and in circumstances where it is in the best interests of the learner concerned. Parents… should never be pressured into removing their child from school under threat of a permanent exclusion ….”

Those points Miss Ward dealt with by submitting that there was no evidence which had been filed on behalf of the defendant or on behalf of the interested parties which contradicts the account given by the claimant’s mother of these matters. Thus, submitted counsel, the panel appeared to have taken into account the fact that a managed move was offered as part of its purported consideration of proportionality. It was clear that the panel’s reasoning relied, wrongly, on its view that “the school had therefore fulfilled its duty to consider alternative solutions”.

Moreover, counsel submitted, the failure to follow the guidance on managed moves was material to the proportionality of the decision permanently to exclude the Claimant, as SB might have (indeed, her evidence was that she would have) accepted a managed move had it been properly explained to her.