S & Ors v London Borough of Brent & Ors.; Oxfordshire County Council; Head Teacher of Elliott School & Ors

A school exclusion appeal panel must decide independently whether the pupil ought to be reinstated. It must have regard to ministerial guidance, but must not treat that guidance as directions or rules, fetter its discretion, or merely review whether the school’s decision was reasonable.

Guidance under the School Standards and Framework Act 1998 must promote the statutory purposes and preserve the panel’s independence and impartiality. A local education authority may provide relevant factual information, but must remain objective and must not press for a particular outcome. Fairness may require an adult witness to be invited for questioning where there is a material conflict of evidence, although this remains a matter of judgment in each case.

Three pupils appealed from decisions dismissing applications for judicial review of independent appeal panels’ refusals to reverse their permanent exclusions from school. The decisions below were reported as [2002] ELR 57, [2001] ELR 359 and [2001] ELR 631.

Each pupil contended that the panel had treated paragraphs 17 and 18 of the Secretary of State’s guidance as fettering its discretion. Two pupils challenged the participation of a local education authority exclusions officer. Further issues concerned mitigating circumstances, the treatment of another pupil, and the absence of teachers for questioning where the alleged misconduct was disputed.

The central questions were how an independent panel should use statutory guidance, what role the local education authority could lawfully perform, and what procedural fairness required at the appeal hearing.

1. All three appeals dismissed. In the judgment of the court delivered by Schiemann LJ, the appeal panels had not treated paragraphs 17 and 18 of the guidance as dictating or constricting their decisions. Those paragraphs were within the Secretary of State’s statutory power when properly understood. The word “normally” preserved each panel’s obligation to exercise independent judgment.

2. Sections 67 and 68 of, and Schedule 18 to, the School Standards and Framework Act 1998 created independent and impartial adjudicative bodies which nevertheless had to consider the Secretary of State’s guidance. Guidance was neither direction nor a set of rules. A panel would act unlawfully if it followed guidance automatically, treated it as binding, or neglected it altogether.

3. The statutory power to issue guidance was legally limited. Guidance had to remain within and promote the statutory purposes and, where applicable, comply with Convention rights. It could not be used to turn an independent tribunal into an instrument of departmental policy. The panel’s substantive question was whether the pupil ought to be reinstated, not whether permanent exclusion fell within a range of reasonable responses. Panels should make clear that their decision is their own.

4. The local education authority had to maintain a completely objective stance despite its several statutory roles. It could provide information about schools, available provision and other relevant facts. It had no function of pressing for or against the permanent exclusion of a particular pupil. A panel should disregard improper submissions and prevent circumstances which might create an appearance that it had acquiesced in an attempt to influence its decision.

5. An appeal panel must receive credible written or oral material reasonably and fairly capable of affecting its decision. There is no rule that adult evidence must be given only in writing. Where an adult witness is involved in a material conflict, the panel may invite attendance and questioning, ordinarily through the chair. Whether that course is required depends upon the circumstances. An unexplained refusal to attend may support an appropriate inference.

6. Elementary fairness requires adequate disclosure of the substance and source of allegations and any relevant material available to the decision-maker. Although anonymity may sometimes protect pupils, a panel should be prepared to disregard an anonymous statement which materially damages the pupil and cannot fairly be answered without knowing its source.

7. In S’s case, the panel had considered the relevant mitigation, the authority officer’s representations were proper and the panel had independently selected permanent exclusion. In T’s case, the panel’s failure to invite the teachers did not cause procedural or substantive injustice because the request had not been made clear and their attendance was not self-evidently required. In P’s case, the decision letter was fairly read as expressing the panel’s own conclusion rather than applying a perversity test.

• Court of Appeal (Civil Division): The three appeals were heard together and dismissed. The court upheld the independent appeal panels’ decisions and the dismissal of each application for judicial review: [2002] EWCA Civ 693.
• High Court: Scott Baker J dismissed S’s application for judicial review, reported at [2002] ELR 57. Newman J dismissed T’s application, forming part of the judgment reported at [2001] ELR 359. Turner J dismissed P’s application, reported at [2001] ELR 631.
• Independent appeal panels: Each panel refused the parents’ appeal against the governing body’s decision not to reinstate the permanently excluded pupil.