education

UUppddaattee:: eedduuccaattiioonn� Exclusions� SENDIST procedure� SEN and disability discrimination

� Adjudicator’s procedure� Independent schools� Higher education� School attendance

� Rights of residenceunder EC law� CRB checksby Oliver Hyams

APART FROM THE EDUCATION ANDInspections Act 2006 (EIA2006), which con-tains 191 sections and 18 Schedules, themain developments in the law of educationduring 2006 have come in the form ofreported cases. The EIA2006 received RoyalAssent on 8 November 2006 and containsmany developments of (and alterations to)the law of education. It deserves an article inits own right, and one will be published inSolicitors Journal as soon as possible.

Human rights and related issuesThe most prominent judgments of 2006 werethose of the House of Lords in Ali v HeadTeacher and Governors of Lord Grey School [2006]UKHL14; [2006] 2 AC 363 andR (Begum) vGovernors of Denbigh High School [2006] UKHL15; [2006] 2 WLR 719.

TheLord Grey Schoolcase was brought onbehalf of a pupil who had been excluded froma maintained school while a police investiga-tion was carried out into an arson attack on theschool. The arson had left a classroom so dam-aged by fire that it could not be used. Thepolice eventually decided not to prosecute thepupil, but for various reasons he did not returnto the school, and only later was admitted toanother maintained school.

The Denbigh Schoolcase concerned a pupilwho, as a result of her religious beliefs, insistedon attending her maintained school in a jilbab,and who was not allowed to do so since thewearing of the jilbab was contrary to theschool’s uniform rules.

The effects of the rulings of the House inthose cases concerning the right to educationconferred by Art 2 of the First Protocol to theEuropean Convention on Human Rights aredescribed in detail elsewhere in Solicitors Jour-nal ((2006) 150 SJ 415, 07.04.06), and attention isdrawn here only to the cogent doubts aboutthe applicability of the statutory régime con-cerning exclusions on disciplinary groundsfrom maintained schools to the circumstancesof those cases which were expressed by Lord

Bingham in para 21 of his speech in Lord GreySchool, Lord Hoffmann in paras 37 and 40 of hisspeech in that case, Lady Hale in para 74 of herspeech in that case, and Lord Scott in para 63 ofhis speech in that case and para 82 of his speechin Denbigh School . In para 43 of his speech inLord Grey School, Lord Hoffmann said the gov-ernment “may wish to consider whether thequestion of precautionary exclusion needs fur-ther clarification”. In para 74 of her speech inLord Grey School, Lady Hale said that the“School Standards and Framework Act 1998and guidance (and, as I understand it, theirreplacements [ie, s 52 of the Education Act 2002and subsequent guidance]) are inapt to caterfor this situation and require urgent reconsid-eration by the Department for Education andSkills.”

If there was such reconsideration, it did notlead to a change in the EIA2006 to the effect ofthe current régime concerning exclusions frommaintained schools, despite that Act address-ing a number of questions arising in relation toexclusions from maintained schools.

Other case law developmentsOther salient developments in the case law (ie,those which involve the development of prin-ciples rather than interesting applications ofexisting principles) are as follows (with casesconcerning education in schools describedfirst).

Special educational needs (SEN) and disability discriminationIn R (Ms K) v SENDIST [2006] EWHC 622(Admin); [2006] ELR 488, Mitting J held (inparas 16-25) that “the provision of educationaland associated services did not include thecleaning and changing of a child after a bowelaccident”. It was “personal care, not educationor services associated with education” (para17). Thus, not only would it not be properlyplaced in Part 3 of a statement of SEN, but itwas also not an “educational [or associatedservice]” within the meaning of s 28C(1)(b) of

the Disability Discrimination Act 1995 (DDA1995).

In Governing Body of Olchfa ComprehensiveSchool v IE and EE [2006] EWHC 1468 (Admin);[2006] ELR 503, Crane J rejected the submis-sion that the “lack of knowledge defence” in s 28B(3) and (4) of the DDA1995 “only bites ifthe responsible body establishes that it wouldnot have taken the step [in question] if it hadknown of the disability” (para 41).

SENDIST procedureIn JR and AR v Hampshire County Council [2006]EWHC 588 (Admin); [2006] ELR 335,McCombe J, in para 16: (1) lamented theabsence of “an authoritative transcript of [the]proceedings before” the Special EducationalNeeds and Disability Tribunal (SENDIST); (2)admitted evidence as to what occurred duringthose proceedings in the case before him; and(3) declined to admit evidence that had comeinto existence since the end of those proceed-ings. Since the appeal was on a point of law, thelatter approach was surely correct.

The proper approach to take where it wasalleged that there was no evidence before theSENDIST to support one of its conclusionswas also in issue inR (London Borough of Ham-mersmith & Fulham) v Pivcevic [2006] EWHC1709 (Admin); [2006] ELR 594. There, StanleyBurnton J held (in para 49) that in order to jus-tify the High Court ordering the production ofa chairman’s signed notes of evidence, itwould not be sufficient “merely because theywould be ‘useful’ or ‘beneficial’ for the partiesto see them. It must be shown that the notes ofevidence are required fairly to determinegrounds of appeal or of review which (subjectto seeing those notes) appear to have a reason-able prospect of success”. He also said thatwhere there is “an apparently substantial alle-gation that there was no evidence to support asignificant finding made by the tribunal, thenotes should be produced, and in such circum-stances the court will normally if necessarymake an order for their disclosure”. In addi-

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tion, he said: “There may also be cases whereprocedural impropriety or unfairness isalleged, which the court cannot properlydetermine without the chairman’s notes ofevidence.”

Although both parties inPivcevicacceptedthat it was open to the High Court to take intoaccount on a challenge to the insufficiency ofthe original reasons of the SENDIST what theSENDIST said in determining an applicationfor a review, Stanley Burnton J (consistentlywith his approach in VK v Norfolk CountyCouncil [2004] EWHC 2921 (Admin); [2005]ELR 343) held in para 55 that the court “shouldapproach the reasons given by a tribunal on areview with caution, having regard to... therisk of subsequent (otherwise known as ex postfacto) justification of the earlier decision”.

InEssex County Council v SENDIST [2006]EWHC 1105 (Admin); [2006] ELR 452, Gibbs Jimplicitly held that educational factors may beirrelevant when considering a parent’s wish,expressed pursuant to para 8 of Sched 27 to theEducation Act 1996 (EA1996), to have his orher child educated at a different maintainedschool from that at which the child is currentlybeing educated. Thus, he held (see mostclearly in para 31), a difference in costs may fallto be considered without reference to the edu-cational advantages of the preferred school ascompared with those of the existing school. Itis difficult to understand why he thought thatto be Parliament’s intention.

Although technically only a decision on itsfacts, Jones v Norfolk County Council [2006]EWHC 1545 (Admin); [2006] ELR 547 is worthnoting because Crane J there quashed a deci-sion of the SENDIST where the latter’s deci-sion had failed to refer at all to the evidence ofthe appellant’s three expert witnesses on theissue of whether a specialist school fordyslexia was required, and therefore to giveany indication as to why it had rejected thatevidence.

Adjudicator’s procedureThe proper approach to take by an adjudicatorappointed under s 25 of the School Standardsand Framework Act 1998 when consideringwhether to approve the discontinuance of amaintained school which the relevant body (inthis case the governing body of the school)proposed on the basis that the school would bereplaced by an Academy (within the meaningof s 482 of the EA1996) was in issue in P vSchools Adjudicator [2006] EWHC 1934(Admin); [2006] ELR 557. There, Wilkie J dis-missed a challenge to the decision of the adju-dicator to approve the proposal where theapproval was subject to several conditions,

including that an agreement would be enteredinto by the promoters of the proposed Acad-emy with the Secretary of State pursuant to s482 by a certain date.

Independent schoolsIn Gray v Marlborough College [2006] EWCACiv 1262; [2006] ELR 516, the Court of Appealanalysed the impact of an implied contractualduty, imposed on the proprietor of an inde-pendent school, to act fairly when excluding apupil from the school. As Auld LJ put it (para56): “Where fairness arises for consideration asan incident of a contractual obligation, as here,the nature of the bargain is relevant. Parentshave a choice whether to commit their chil-dren to the particular regime and ethos of anindependent school. They do so in the light oftheir expectations of what the school will pro-vide and their understanding of what itrequires from its pupils and their parents. Thatis what they pay for and the commitment theygive. These are circumstances for whichallowance may have to be made in applyingnotions of fairness and of what is required byconsultation in the independent sector, whichmay or may not, depending on the circum-stances, militate against reading across tooreadily the more prescriptive aspects of statu-tory provisions governing exclusion of pupilsin the state sector.”

School attendanceIn London Borough of Bromley v C [2006]EWHC 1110 (Admin), [2006] ELR 358, theDivisional Court held (para 17, per SullivanJ, with whose reasons Auld LJ agreed) that“leave” for the purposes of s 444(3)(a) of theEA1996 meant “leave granted by the school,not leave which the magistrates considermight have been justified”. Further, theabsence of a pupil “for the equivalent of ninedays on unauthorised holidays could[rationally] lead to only one conclusion; thatis to say, that there had not been regularattendance” (para 21).

Higher educationIn R (Interchange Trust) v London MetropolitanUniversity and the Quality Assurance Agencyfor Higher Education [2005] EWHC 2841(Admin); [2006] ELR 308, Calvert-Smith Jheld (in para 44) that “in a proper case therelationship between a university and itsprovider should be the subject of supervisionand control, if necessary by [the Administra-tive Court]”.

The decision of Gray J inVan Mellaert vOxford University [2006] EWHC 1565 (QB);[2006] ELR 617 that the choice by a university

of examiners for a doctoral thesis involved theexercise of academic judgment with which itwould be inappropriate to interfere, wasbased upon earlier authorities, includingClarkv University of Lincolnshire and Humberside[2000] 1 WLR 1988. However, Gray J com-mented (para 25) that there might be aspects ofthe examination “into which it would not beinappropriate for the court to intervene”, suchas “if it were shown that there had been a pro-cedural irregularity or if actual bias on the partof one tribunal or another were demonstrated,or if it could be shown that there was some procedural unfairness to the claimant”.

Right of residence under Art 18 of theEuropean Community (EC) TreatyInAli v Secretary of State for the Home Depart-ment [2006] EWCACiv 484; [2006] ELR 423, theCourt of Appeal held (para 27) that Art 18 ofthe EC Treaty did not entitle a child who was acitizen of a member state of the EC to remain inthe UK merely because the child was at a pri-mary school in the UK. Nor (para 28) could thechild’s parent obtain any “derivative right” todo so.

New regulatory obligation in respect ofemployees in schoolsFinally, mention should be made of anamendment made to the School Staffing(England) Regulations 2003 (SI no 1963). Asfrom 12 May 2006, there has (as a result of SIno 1067) for the first time been an expressregulatory obligation to obtain an “enhancedcriminal record certificate issued [in fact bythe Criminal Records Bureau (CRB)] pur-suant to Part V of the Police Act 1997... inrespect of any person appointed” under reg11 or reg 20 of SI 2003/1963, or in respect of“any person appointed by a local educationauthority for the purpose of working at a[maintained school] in the temporaryabsence of a member of staff of the school”.This protection was enhanced by SI no 3197,which, as from 1 January 2007, furtheramended SI no 1963 by substituting replace-ment provisions even for those which wereinserted by SI no 1067. The substituted provi-sions filled a gap that had been left by SI no1067. It is of interest that there is currently noequivalent obligation in relation to Wales,where, as was the situation in England before12 May 2006, the employers of staff in main-tained schools are obliged only by ministe-rial guidance to obtain CRB checks beforeappointing staff to work in those schools.

Oliver Hyams is a barrister at Devereux Chambers,

London

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