N, R (on the application of) v The Independent Appeal Panel of London Borough of Barking and Dagenham

At the permission stage, an argument that a school appeal panel erred by refusing to consider a specialist tribunal’s reasoning on closely related disability-discrimination incidents may be plainly arguable where coherence between statutory bodies is in the public interest. Proceedings concerning a permanent exclusion are not necessarily moot because the pupil no longer wishes to return. Where the governing regulations permit a rehearing to determine whether reinstatement would have been appropriate, without ordering actual reinstatement, and the decision affects the pupil’s disciplinary record, permission may properly be granted.

The applicant, a 13-year-old pupil with ADHD, had been permanently excluded from a maintained school after earlier fixed-term exclusions. SENDIST had found the earlier exclusions discriminatory under section 28I of the Disability Discrimination Act 1995. The Independent Appeal Panel, exercising the section 28L route for permanent exclusions, upheld the permanent exclusion and expressly declined to take account of SENDIST’s findings.

On 3 March 2008, the Administrative Court granted permission for judicial review but dismissed the substantive application. The applicant renewed her application for permission to appeal. The central issues were whether the panel should have considered the earlier tribunal decision and whether the proceedings were moot because she no longer wished to return to the school.

1. Permission. Lord Justice Laws considered it plainly arguable that the appeal panel’s decision to pay no regard to SENDIST’s findings was an error of law. The applicant did not contend that the panel was bound by SENDIST. The proposed argument was that the earlier reasoning and conclusions were material considerations because the incidents were close in character and time, and disability-discrimination issues concerning the same child might come before both statutory bodies. The public interest could require coherence and consistency between them.
2. Mootness. The application was not necessarily moot merely because the applicant no longer wished to return to the school. Regulation 6(6) of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 permitted the panel, where reinstatement was impractical for exceptional or other reasons, to determine whether reinstatement would otherwise have been appropriate. A rehearing could therefore address whether the original decision was correct without requiring actual reinstatement.
3. Continuing significance. It was important whether the applicant retained a record of the misconduct found by the panel. That continuing consequence provided a sufficient practical basis for the court to consider ordering a rehearing. The subsidiary argument concerning the sufficiency of the panel’s reasons was noted but not determined.
4. Order. Lord Justice Waller agreed. The renewed application for permission to appeal was granted.

1. Court of Appeal (Civil Division): On 10 June 2008, granted the renewed application for permission to appeal.
2. Administrative Court: On 3 March 2008, the deputy High Court Judge granted permission to seek judicial review but dismissed the substantive application.
3. Independent Appeal Panel: On 2 February 2007, dismissed the appeal against the permanent exclusion.