Michael Segal explores a school’s legal position in implementing a reinstatement order, and how far they are obliged to enforce it

QUESTION:

When a school is directed to reinstate a permanently excluded pupil, how far must it go?

ANSWER:

In R(O) v The Governing Body of Parkview Academy and Another [2007] ELR 454 CA, the claimant,15, was a pupil at Parkview Academy. He had a good record but in June 2006 he assaulted and injured the female manager of the school canteen. The head teacher decided to exclude him permanently, and the governing body upheld this decision.

Independent appeal panel

The claimant went to the independent appeal panel, which decided to direct his reinstatement. The IAP said that exceptional circumstances made permanent exclusion inappropriate.

It noted that: the claimant had a ‘relatively unblemished record’; that the incident was ‘out of character’; that medical factors might have contributed to his behaviour; and that a long-term fixed exclusion would have been appropriate.

The head teacher was dissatisfied with the IAP’s decision, but told staff that he had to comply with it.

In March 2007 the NUT said that it intended to begin industrial action in the form of a refusal to teach, supervise or otherwise work with the claimant. The head teacher decided, therefore, to have the claimant educated in a room on his own.       

Judicial review

The claimant applied for judicial review of this decision on four grounds:

  • the head teacher’s proposals were not a reinstatement within the meaning of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002
  • isolating the claimant from the rest of the school was not consistent with his status as a pupil
  • the head put too much weight on the threat of NUT disruption, which was not pursuant to a lawful trade dispute
  • the claimant’s education was not in accordance with the national curriculum.

The judge dismissed the application, and the claimant went to the Court of Appeal.

Court of Appeal

The pupil exclusion regulations say that, in making a decision, the independent appeal panel should consider the interests of both the excluded pupil and the other pupils and school staff. The IAP may uphold the decision, or direct that the pupil be reinstated.

Was he ‘reinstated’?
The Court of Appeal followed the House of Lords, which held in Re L (A Minor by his Father and Litigation Friend) [2003] 2AC 633, that ‘reinstate’ means that a pupil is no longer excluded from the school. So, whilst isolation may have been harsh, the legal relationship (discontinued by permanent exclusion) was restored.

The claimant had been reinstated within the meaning of the regulations.

Appropriate regard to NUT threat
In Re L the House of Lords held that the threat of industrial action was a relevant matter, and the head teacher was entitled to take it into account.

The Court of Appeal held that the head teacher in this case was similarly entitled to take the threat of industrial action into account.

The national curriculum
The Education Act 2002 says that the LEA, the governing body, and the head teacher must make sure that the national curriculum is implemented. The school in this case had undertaken, post-exclusion, to teach the claimant all the subjects that he studied before exclusion. He did not, however, accept that this was sufficient to meet national curriculum requirements.

The Court of Appeal referred to R v Inner London Education Authority ex parte Ali and Another (1990) 2 Admin LR 822, in which the judge said: ‘Even where there is a breach of [the Act] the court in its discretion need not intervene if by the time the matter comes before the court the LEA is doing all that it reasonably can to remedy the situation.’

The school’s undertaking to teach all relevant subjects was sufficient to meet the needs of justice.

Attempt to negotiate

The Court of Appeal dismissed the appeal. What is of interest is the view it took that the head could have made a more serious attempt to negotiate with the NUT or the teachers who were leading the protest.

This was particularly true in the light of a letter from the NUT giving notice of the intended ballot, which ended: ‘The union remains willing to reach a negotiated settlement of the current dispute.’ It was unfortunate that more was not done to seek some compromise.

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

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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