HA, R (on the application of) v Hampstead School & Anor

A maintained school’s decision to provide off-site education for behavioural improvement must comply with the statutory notice and review requirements. The notice must explain the reasons and objectives of the transfer, because those matters promote lawful and properly focused decision-making. A procedural breach may be disregarded only where the outcome would inevitably have been substantially the same. The review duty applies even where the pupil has not attended the alternative provision. Statutory guidance requiring education on a par with mainstream schools does not necessarily require access to a full range of GCSE subjects. Provision must be tailored to the pupil, while meeting the specified core standards.

The claimant, a 16-year-old pupil at a maintained community school, challenged the decision to transfer him to off-site provision at a further education college. He alleged improper delegation, failure to comply with the notice procedure in the Education (Educational Provision for Improving Behaviour) Regulations 2010, unexplained departure from statutory guidance or irrationality, and failure to review the placement.

The school accepted that the mandatory notice had not been served, but argued that the omission could not have affected the outcome. It also argued that no review was required because the claimant had not attended the college. The court determined whether the transfer decision and its subsequent maintenance were lawful, and what relief should follow.

1. Improper delegation. The statutory power to require off-site provision under section 29A(1) of the Education Act 2002 lay with the governing body, although authority had properly been delegated to the head teacher. The evidence supported the conclusion that the head teacher, rather than the inclusions manager, had made the decision. The delegation ground therefore failed. Alternatively, even if the decision had been made by the inclusions manager, the outcome would not realistically have differed had the head teacher made it personally.
2. Procedural protection. The failure to give the mandatory notice required by Regulation 3 of the 2010 Regulations was unlawful. A notice must include the reasons and objectives of the transfer. That requirement ensures that the decision-maker addresses the pupil’s behavioural needs, the provision required to meet them, and why the proposed provision is suitable. The defect was not merely technical. Given the mixed academic and behavioural evidence, a lawful decision-maker might have reached a different result. The court therefore declined to apply the substantially-different-outcome principle under section 31(3C) of the Senior Courts Act 1981.
3. Guidance and irrationality. The requirement for alternative provision to be on a par with mainstream education did not necessarily require a full range of GCSE subjects. Provision could be tailored to the pupil, subject to the core standards in English, mathematics and science. The court had reservations about the transfer, but found no legally identifiable departure from the guidance and no irrationality. It could not substitute its own educational judgment for that of the governing body or head teacher.
4. Review duty. The governing body’s duty to review the placement applied even though the claimant had not attended the college. His complete non-attendance could itself be relevant to an assessment of his best interests. It was not a sufficient reason to omit the reviews required by the 2010 Regulations, and the court could not conclude that a review would have made no difference.
5. Relief. The transfer decision was quashed. The school was required to reconsider the decision within six weeks of the sealed order, with the claimant to be readmitted during that period. A further mandatory order concerning review was unnecessary because the quashing and reconsideration relief rendered it academic.

Not stated in the judgment.