O v The Governing Body of Park View Academy & Anor

Reinstatement after school exclusion restores the legal relationship between pupil and school and revives the school’s statutory and common-law obligations. It is not a mere formality, but it does not require immediate restoration of ordinary school life. Post-reinstatement management is a separate question. A regime is lawful if adopted in good faith, is not a sham or nugatory, and remains reasonable and proportionate. Actual or bona fide anticipated industrial action is a relevant consideration. In judicial review proceedings, an Administrative Court may accept a best-endeavours undertaking and decline to determine breach of an educational duty where that is a proper exercise of discretion.

Following a serious, one-off assault on a member of staff, O was permanently excluded from Park View Academy. The governing body upheld the exclusion, but an independent appeal panel directed staggered reinstatement. The head teacher considered that threatened industrial action by teachers made ordinary reintegration impracticable and arranged education at a college with individual tuition.

Burton J dismissed O’s judicial review claim on 15 March 2007. O sought permission to appeal on grounds concerning the meaning of reinstatement under the 2002 Regulations, the effect of Ex parte L, the relevance of threatened industrial action, and compliance with the National Curriculum duty. The central issues were whether O had been reinstated and whether the continuing educational arrangements were unlawful.

Application refused. The Court of Appeal held that O’s grounds were not well-founded and refused permission to appeal.

1. Meaning of reinstatement. Carnwath LJ held that the word reinstatement in the Education Pupil Exclusions and Appeals Maintained Schools (England) Regulations 2002 retained the settled meaning identified in Ex parte L [2003] 2 AC 633. It restores the legal relationship between the school community and the pupil, together with the school’s statutory and common-law obligations. The appeal panel’s direction is neutral as to the subsequent management of the pupil. Formal acceptance is necessary, but must be accompanied by treatment consistent with pupil status.
2. Management after reinstatement. The lawfulness of the resulting regime is a separate question of reasonableness and proportionality. A failure to reinstate arises only where the resumption of responsibility is a sham or so nugatory that it shows no real intention to resume it. The regime in this case was severe, but its greater duration and effect did not create a difference in principle from the regime considered in Ex parte L. Its reasonableness required continuing assessment, and it might later have become unlawful. The court was reluctant to second-guess Burton J’s assessment.
3. Regulatory changes and industrial action. Regulation 6(3) did not imply that any particular relationship with other pupils or teachers had to follow reinstatement. Regulation 6(6)(c) supplied an additional power to decline reinstatement in exceptional or impractical cases, but did not alter the meaning of reinstatement or remove existing management powers. Actual industrial action, and bona fide anticipation of an industrial dispute, were relevant matters. The head teacher need not wait for relations to collapse. Intervention would require an irrational or perverse response. The failure to negotiate was insufficient on the evidence.
4. National Curriculum. The court did not decide whether the statutory duty had been breached. Under the Education Act, Burton J was entitled to accept the school’s undertaking to use best endeavours to provide tuition as a pragmatic resolution. The discretion recognised in R v Inner London Education Authority ex parte Ali [1990] 2 Admin LR 882 permitted the court to refrain from intervention where the authority was doing all it reasonably could. There was no error of principle or decision outside the bounds of discretion. Maurice Kay LJ considered that resolving the issue through undertakings was preferable to adjudicating every dispute in an ongoing relationship.

The Master of the Rolls added that future head teachers should seek to identify the precise grievance and negotiate to minimise disruption. He also noted that any educational disruption might properly be considered in assessing O’s future academic record.

1. Court of Appeal (Civil Division): On 22 May 2007, the court refused permission to appeal and dismissed the application. [2007] EWCA Civ 592
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Burton J dismissed O’s judicial review claim on 15 March 2007.