Ullmer v Secretary of State for Education

Appeals under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 are ordinarily reviews under Civil Procedure Rules 1998, rule 52.21, where no practice direction requires a rehearing. A rehearing may nevertheless be ordered if the interests of justice require it in the individual appeal. The gravity of an indefinite prohibition order and its impact on reputation justified a more interventionist rehearing in this case. The loss of an audio recording after the disciplinary hearing was not itself a serious procedural irregularity. Nor did it prevent a fair appeal where the decision and other detailed records were available. The appeal remained confined by the pleaded grounds.

A teacher brought a statutory appeal under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 against a prohibition order imposed by the Secretary of State for Education following findings by a Professional Conduct Panel. He sought to add Ground 1A, alleging that the destruction of the panel hearing’s audio recording was a serious procedural or other irregularity. The parties disputed whether appeals in this category were reviews or rehearings, and whether a rehearing was required by article 6 of the ECHR. The court determined the amendment and Ground 1A as preliminary issues, granted permission to amend, dismissed that ground, and directed that the remaining grounds be heard as a rehearing.

1. Nature of the appeal. Under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012, the appeal is governed by rule 52.21 of the Civil Procedure Rules 1998. Since no provision of Practice Direction 52D requires a rehearing, the default position is that the appeal proceeds by way of review. The court followed the more recent approach in Brittain v Secretary of State for Education and Jones v Professional Conduct Committee of the Teaching Regulation Authority and Secretary of State for Education, and declined to follow the general rehearing approach taken in earlier authorities including O v Secretary of State for Education and National College for Teaching and Leadership.
2. Rehearing exception. The distinction between review and rehearing remains real. A rehearing permits a more interventionist appellate approach, but is not an unrestricted retrial. The court must still determine whether the decision was wrong or unjust, respect appropriate primary findings, and remain within the grounds of appeal. Applying Sastry and Okpara v General Medical Council, the court held that the profound professional and reputational consequences of the prohibition order made a rehearing appropriate under rule 52.21(1)(b).
3. Article 6 and the statutory scheme. The article 6 argument failed. The Professional Conduct Panel was independent. The statutory scheme separates the panel’s determination of misconduct from the Secretary of State’s later decision on sanction, and the Secretary of State was bound by the panel’s findings on the allegations. The court accepted the analysis in Wallace v Secretary of State for Education and was satisfied that the TRA’s internal arrangements sufficiently separated its functions.
4. Lost recording. The subsequent loss of the audio recording was not an irregularity in the proceedings before the panel within rule 52.21(3)(b), and did not render those proceedings unjust. The pleaded grounds could fairly be determined from the panel’s decision, the contemporaneous recording relied upon, witness statements, legal directions and the detailed 99-page note of the hearing. The court therefore dismissed Ground 1A, while granting permission to amend and directing that the remaining appeal proceed as a rehearing.
5. The court rejected any suggestion that it was required to conduct a broad examination of the panel’s decision independent of the grounds of appeal. Rule 52.21(5) defines the appeal’s parameters, subject to permission to amend the grounds.

This was a statutory appeal under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 against a prohibition order imposed by the Secretary of State for Education. The court granted permission to amend the grounds, dismissed Ground 1A, and directed that the remaining grounds be determined at a later hearing by way of rehearing.