Michael Segal gives guidance on what to consider when wording a pupil exclusion decision letter

QUESTION:

How much detail is required, and how should the decision be expressed?

ANSWER:

The case of R (T) v Independent Appeal Panel for Devon County Council and the Governing Body of X College [2007] ELR 499 concerned a boy, T, 15, who began to attend X College, a mainstream secondary school, in 2002. An NHS medical officer diagnosed him with Asperger’s Syndrome, a form of autism that causes an impairment of social interaction.

She said: ‘I think he is likely to land himself in trouble in school because of his communication difficulties. He is unable to pick up on non-verbal cues, irritates people, pushes them too far, and does not know how or when to back off. He can act impulsively, and can overreact to situations and, although he is a gentle boy, he may hit out and land himself in trouble because of this.’

The exclusion
In 2006 T assaulted a teacher who, the previous day, had confiscated his cap. The principal of the college decided that T should be excluded temporarily and, shortly afterwards, made the exclusion permanent.

After an oral hearing, the governors’ discipline committee upheld this decision. T appealed to the independent appeal panel.

The independent appeal panel upheld the committee’s decision. Its conclusion was that the college was aware of T’s problems and needs, that it had used a number of strategies and interventions to help and support him and that, despite his condition his permanent exclusion was appropriate and reasonable.

Judicial review
T applied for judicial review. It was common ground that the college was under an obligation to comply with the Disability Discrimination Act 1995.

The two main grounds of application, upon which T succeeded, were (1) that the panel had not asked itself the questions required by the DDA, and (2) that the reasoning of the decision letter was inadequate, and failed to comply with DfES Circular 0354/2004, which said that the decision letter should give as much detail as possible so the parties could understand why the decision was made.

Questions for the panel
The judge held that the DDA requires the panel to ask itself a number of questions. First, was T disabled within the meaning of the DDA? Second, if so, had the college treated him less favourably than it would have treated a child who was not disabled and had behaved properly?

Third, did exclusion arise from a reason related to disability? Fourth, had the college shown that permanent exclusion was justified? Fifth, was the reason for the less favourable treatment material to the circumstances of the case, and substantial?

Sixth, if the college had been in breach of its duty to take reasonable steps to ensure that disabled pupils were not at a disadvantage in comparison with those who were not disabled, would the treatment have been justified even if the college had complied with its duty?

Decision letter’s failure
The panel had not asked itself these questions. While it is a part-time lay tribunal, which is given some degree of latitude in giving its reasons, its reasons must contain the fundamental ground upon which its decision is based, and this decision did not do so.

The decision letter’s failure to grapple with the questions that arose under the DDA, was so fundamental that its reasoning was inadequate and it failed to comply with the 2004 Circular. The panel’s decision must be quashed.

Discretion to refuse relief
It was argued that the High Court had a discretion to refuse the relief claimed, because T had not applied promptly, and because by the time of the High Court hearing he had found schooling elsewhere.

The judge declined to exercise his discretion. In ordering a re-hearing, he pointed out that a determination that T was rightly the subject of a decision to exclude permanently was a very serious matter. The fact that he had assaulted a school teacher would itself be a blot on his record and, without a fresh hearing, he would be unable to erase that blot.

This field of law has become very technical, resulting in lengthy hearings, and complex argument but, as the judge said, a decision permanently to exclude is a serious one, with far-reaching effects upon the life of a young person. Seen in this light, the time and expense are justified.

Michael Segal is a district judge in the family division of the High Court

Send legal problems to The Editor, Education Law Update, 33-41 Dallington Street, London EC1V 0BB or email leila.segal@optimuseducation.co.uk. We regret we cannot enter into individual correspondence. While it is hoped the answers given here are helpful, they should not be relied on without seeking proper advice as to their application to your own circumstances.

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