Consent orders and school exclusions

Perhaps I ought to start with a confession: there isn’t really any such thing as a “consent order” when it comes to school exclusion hearings. But what is the correct approach to take when all of the parties involved in a school exclusion case agree on what their desired outcome is? The Administrative Court has given some helpful guidance in its recent decision of SA v London Borough of Camden Independent Appeal Panel and H School [2013] EWHC 3152 (Admin).

Background

SA, a 15 year old child, has a history of behavioural problems. In the first term of year 9, his behaviour took a turn for the worse. He was accused of sexually assaulting a female pupil, refusing to attend classes and using sexually explicit language about staff members.

His school tried hard to arrange appropriate support for his behavioural needs but without success.  In December 2011 the school took the decision to permanently exclude him.

SA appealed to the school’s governing body, which upheld the exclusion in January 2012.

Before September 2012, appeals against such decisions were heard by independent appeal panels (IAPs), rather than the new independent review panels (IRPs).  SA and his mother duly appealed the governing body’s decision to the IAP for the school.

SA and his mother made clear that they were not seeking SA’s reinstatement at the school; they were appealing to try and secure the removal of the permanent exclusion from SA’s record.  Once this became clear, the school and the governing body indicated that they did not object to the exclusion appeal succeeding on the basis that SA would not be reinstated.

Accordingly on 24 February 2012 a letter was sent to the IAP signed by SA’s solicitor, the head teacher of the school and the Chair of Governors. The letter stated that all the parties were in agreement that the appeal should succeed but that there were exceptional circumstances precluding an order for SA’s reinstatement.

The IAP’s decision

Neither SA’s mother nor his solicitor attended the IAP hearing, since they had assumed that the IAP would simply give effect to the agreement reached by the parties.  When the IAP convened to consider the appeal, they had the agreement letter of 24 February 2012 before them.  However they sought advice from their clerk and concluded that they would not give effect to the agreement which the parties had reached.  The IAP decided instead to uphold the permanent exclusion.  In their decision letter of 10 March 2012, the IAP stated:

“The Panel, after seeking legal advice, accepted that they were not bound by the agreement and considered that it was required to consider all the evidence and arrive at its own decision…”

The IAP further stated to SA’s mother:

“The Panel also noted the agreement reached between your representative and the school requesting that the Panel overturn the permanent exclusion. However, given the serious breaches and the sufficient evidence, applying the civil standard of proof, the Panel were satisfied that the permanent exclusion was proportionate and therefore did not uphold your appeal.”

The claim in the Administrative Court

SA challenged the IAP’s decision not to follow the parties’ agreement on two grounds:

(1) That the IAP had misdirected itself in law in concluding that it had to reach its own decision rather than giving effect to the agreement reached by the parties; and

(2) That the IAP had acted in a procedurally unfair manner by not giving the parties an opportunity to respond to its decision to reach its own decision irrespective of the agreement reached.

The Administrative Court’s decision

The Administrative Court found for SA on both grounds. 

On Ground 1, the IAP’s misdirection that it had to reach its own decision, the Court stated:

“No good or even adequate reason was given by the IAP for not giving effect to the agreement. The IAP sidestepped the issue, it wholly failed to address the reasoning behind the agreement. Such a course is particularly concerning when the agreement was before the IAP as representing the best interests of the claimant.”

The Judge, Mrs Justice Nicola Davies DBE, went on to say:

“In my view, there was an unlawful failure on the part of the IAP to provide reasons for not giving effect to the agreement between the parties. The direction, from whosoever it came, that the IAP was required to reach its own decision rather than give effect to the agreement between the parties unless there was good reason not to do so, was a misdirection.”

On Ground 2, the Judge found that once the IAP had decided that it would not give effect to the parties’ agreement, it was procedurally unfair of it to proceed to decide the appeal without giving all the parties an opportunity to make representations.

The consequences of the decision

The IAP, in their decision letter, referred to the agreement reached between the parties, but stated that in light of the evidence and the seriousness of the breaches of the behaviour code by SA, the permanent exclusion was to be upheld. The IAP thus did give some basic reasoning for their decision not to give effect to the agreement.

The fact that the Administrative Court condemned this reasoning as not “good or even adequate” suggests that where an IRP (as they are now) is confronted with an agreed settlement proposed by the parties, it will be expected to give effect to that agreement unless there are good (or at least adequate) reasons not to, and it will not be a good enough reason for the IRP simply to say that the behaviour complained of was of a sufficient severity that permanent exclusion was justified. 

So what might justify an IRP deciding not to adopt an agreed settlement proposal? The Administrative Court does not give any guidance in its decision.  Arguably it might be a good reason if the IRP concludes that the agreement is founded on a mistake of fact or a mistake of law (e.g. if the parties agree that permanent exclusion should not be imposed because the pupil concerned did not do what he is accused of, but the IRP concludes that in fact he did). 

This case, although it only just came to court, was started pre-September 2012, when the old school exclusions regime and the old-style IAPs were in force.  Under the new regime, IRPs only have the power to overturn the governing body’s decision if it was flawed on judicial review principles.  This may put the new IRPs in some difficulty with regard to this decision.

If a governing body has upheld the exclusion of a pupil and that matter is appealed to the IRP, but the parties agree before the review hearing that the permanent exclusion should not be upheld, what is the IRP to do?  Legally it can only overturn the governors’ decision if it was unlawful, irrational or procedurally unfair. 

It seems that for exclusions post-September 2012, the possibility of reaching an agreed outcome is severely diminished. The IRP cannot give effect to the agreement the way a court would to a consent order. The IRP can only quash the decision to exclude if it was flawed on judicial review principles. Unless it is so flawed, the IRP’s only way of seeking to give effect to the agreement will, it seems, be to use its lesser power of recommending to the governors that they reconsider their decision with a clear direction being sent to the governors that there is an expectation that they will change their decision in line with the parties’ agreement.  It would seem that at that point the governors will be in much the same position as the IAP in SA v Camden IAP i.e. that it will be expected to give effect to the agreement unless there is a good reason not to.

Should the governors then have a last minute change of heart and refuse to give effect to the agreement, the pupil’s remedy will lie in a judicial review of the governors’ decision. Should such a judicial review ever be brought, it will confront the Administrative Court with a tricky problem: can the parent and head teacher, in effect, bind the governors to reach a particular decision when they are reconsidering their decision to uphold an exclusion?  Supporters would say this would be a clear way of giving effect to the combined will of the parent and head teacher; others might say it would neuter the governing body and fetter their discretion in an important exercise of their legal duties.  It would be a fascinating claim to be involved with. 

Conclusion: A situation best avoided

In reality, where a head teacher and parent agree prior to an IRP hearing that the exclusion should be overturned, the best approach will be to invite the governing body to retract its decision and issue a new one overturning the exclusion.  Once that has happened, the parent can simply withdraw their appeal. That approach can avoid any of the difficulties encountered by the parties in SA v Camden IAP.

If parties take that approach instead, the need for a written agreement to be submitted to the IRP may only arise in the unlikely circumstance of a governing body refusing to change its decision at the behest of the head teacher and parent; or in circumstances where the decision the parties seek is more nuanced than a simple overturning of the exclusion.  Given the legal issues which can arise when a settlement agreement is put forward, it is a minefield better avoided where possible. However it is debatable whether a governing body can properly change its decision once it has been taken, even at the request of the parties. The arguments either way are outside the scope of this article, but they do leave open the possibility that, however much of a minefield submitting a settlement agreement to an IRP is, it may be a minefield which has to be trodden more often than would be liked.

For more information, view the judgment.