Alsaifi v The Secretary of State for Education (Rev 1)

The Secretary of State’s statutory disciplinary powers apply only where the person falls within the statutory definition of a teacher at a legally relevant time. A person who was not a qualifying teacher when the alleged conduct occurred or when the allegation was referred cannot be brought within the regime merely because he later becomes a qualifying teacher. Later employment does not retrospectively validate an investigation or referral that was unlawful when begun. Proceedings taken without statutory authority are a nullity, and any resulting prohibition order must be set aside.

This was a statutory appeal against an indefinite prohibition order made by the Secretary of State for Education on the recommendation of an NCTL professional conduct panel. The appellant’s alleged misconduct occurred while he was an hourly paid lecturer teaching an accountancy course at a further education college. At that time, and when the allegations were referred to the NCTL, he did not fall within the statutory definition of a teacher. He later undertook temporary teaching work at an academy before the panel hearing and the prohibition order. The central issue was whether that later engagement supplied jurisdiction retrospectively.

1. Appeal allowed. The prohibition order was set aside. The appellant’s other grounds, including procedural unfairness, credibility and alleged lack of impartiality or discrimination, failed.
2. Under sections 141A and 141B of the Education Act 2002, the Secretary of State’s regulatory jurisdiction depends on the person being employed or engaged to carry out statutory teaching work at a specified institution. The statutory definition of “pupil” also excluded the learner in question because she was receiving part-time education suitable for persons over compulsory school age. The college was a further education establishment outside the institutions listed in section 141A.
3. The court followed Zebaida v Secretary of State for Education [2016] EWHC 1181 (Admin) in holding that a person who was a qualifying teacher when the conduct occurred remains amenable to investigation even if he has resigned before the referral. The statute also permits a reference concerning a person who is a qualifying teacher when the reference is made, even where the conduct occurred earlier. The court left open whether later teaching status alone can bring within the regime conduct committed before the person ever became a qualifying teacher.
4. That unresolved issue did not affect the result. The appellant was not a qualifying teacher either when the alleged conduct occurred or when it came to light, and was not one when the allegations were referred. His later teaching engagement, before the hearing and order, could not retrospectively validate the investigation, panel referral or recommendation. Section 141B(2) required a lawful investigation under section 141B(1) before a prohibition order could be made.
5. The NCTL and the panel therefore acted without statutory authority. The proceedings were a nullity. The Secretary of State was directed to bear her own costs of the appeal, irrespective of any further appeal.

• High Court (Administrative Court): allowed the statutory appeal against the Secretary of State’s prohibition order and set the order aside. No lower-court citation was stated.