Lone v Secretary of State for Education

An appeal from a prohibition order is a rehearing on whether the decision was wrong, or unjust because of a serious procedural irregularity. It is not a judicial review applying the Wednesbury rationality standard.

Under the statutory teacher-discipline scheme, the professional conduct panel determines the facts and recommends sanction, while the Secretary of State decides whether to prohibit a teacher. That function may be exercised by an authorised civil servant. Membership of the Department for Education or the Teaching Regulation Agency does not, without more, create apparent bias. Sustained unwanted contact with a junior colleague may amount to unacceptable professional conduct and engage public confidence in teaching. Personal mitigation, later incident-free employment and comparisons with other cases do not make a sanction wrong where proportionality and insight have been properly considered.

The appellant was a teacher who had been dismissed for gross misconduct after persistent unwanted communications and other conduct towards a younger junior colleague. A professional conduct panel of the Teaching Regulation Agency found relevant allegations proved, recommended prohibition with a two-year review period, and referred the matter to the Secretary of State.

The Secretary of State, acting through an authorised civil servant who was also Chief Executive of the Agency, made a prohibition order. The appellant challenged the decision on grounds including unlawful delegation, automatic or apparent bias, errors in the panel’s fact-finding, the significance of an alleged prior relationship, and disproportionate sanction.

The central issues were the appellate standard, the fairness of the decision-making structure, the validity of the panel’s findings, and whether the prohibition decision was wrong.

1. The appeal was dismissed. The court’s jurisdiction was under CPR Part 52.21(3). The appeal involved a rehearing on whether the decision was wrong or unjust because of a serious procedural irregularity. It was not a judicial review applying the Wednesbury standard. The court had to give proper weight to the specialist decision maker’s expertise and experience, and could not intervene merely because it might have reached a different conclusion.

2. The Education Act 2011 and the Teachers’ Disciplinary (England) Regulations 2012 placed factual investigation and findings with the professional conduct panel, while reserving the sanction decision to the Secretary of State. The Secretary of State’s decision could lawfully be made by an authorised civil servant under the Carltona principle.

3. The authorised decision maker was not automatically disqualified. The statutory decision was administrative and ministerial, rather than a judicial determination of liability. Nor was there apparent bias. The Teaching Regulation Agency was part of the Department for Education and was not a self-regulating professional body or a prosecuting authority in the relevant sense. The panel independently determined the facts, and the Secretary of State chose the sanction from the statutory alternatives. A different result might follow if the decision maker had a personal interest in the employer or another party, but no such interest was shown.

4. The panel was entitled to consider the nature and content of the communications when deciding whether contact was unwanted. It was not required to determine whether the appellant and the colleague had previously had an affair. Even if an affair had existed, conduct following its end and continuing after express requests to stop could properly be treated as inappropriate. The panel was also entitled to rely on the pupil’s written statement although the pupil was not called to give evidence.

5. The sustained and repeated unwanted contact with a junior colleague was serious, neither trivial nor a temporary lapse, and could amount to unacceptable professional conduct or conduct bringing the profession into disrepute. Emotional distress, regret and personal mitigation did not make the conduct excusable or require a different finding.

6. The sanction decision involved proportionality and the balance between public confidence in the teaching profession and the impact of prohibition on the appellant. Comparisons with sanctions in other cases were of little assistance. The decision maker was entitled to attach weight to the appellant’s lack of full insight into the effect of his conduct. The outcome was not shown to be wrong.

The judgment does not state a prior reported judicial decision in the same proceedings. The appeal was dismissed by the High Court (Administrative Court).