Entry in Act Book of CourtAct Book of Court
Date 4 July 2003
Judgement by Sheriff Susan A O Raeburn, Q.C.
GLASGOW CITY COUNCIL Defender(s)
I certify that the judgement attached thereto was recorded in the Act Book of Court on this date.
FOX-FLYNN v GLASGOW CITY COUNCIL
4 July 2003. The Sheriff, having resumed consideration of the
cause, Annuls the decision of the defenders made on 31 January 2002
to exclude the pursuers child, Aidan Fox-Flynn, from Ashcraig School.
This case came before me for debate on the defenders first and fourth pleas-in-law (as amended) and the pursuers first, second, fifth (new) and sixth pleas-in-law. The pursuer appeals under Section 28H(6) of the Education (Scotland) Act 1980 against the decision of the defenders to exclude her child, Aidan, from Ashcraig School.
Prior to hearing submissions, I adjourned in order to read the record (as amended) and inventory of productions Nos 1 to 5 for the pursuer. When the court reconvened I indicated that I was concerned about the absence of reasons for decision dated 14 May 2002 (production No 5) and that I wished to be addressed on this point.
Miss Williamson for the defenders submitted that the decision under appeal was the decision given by the education authority, production No 2, and not that of the Appeal Committee. She submitted that the decision of the education authority dated 31 January 2002 gave reasons. In any event, she submitted, in exercising my appellate function I could and should have regard to all the facts and circumstances relevant to the decision in order to confirm or annul it. In other words, I could and should consider the matter de novo. This would involve hearing a proof should the appeal survive debate.
Miss Williamson objected to my giving to Mr OCarroll for the pursuer the opportunity of addressing me on this point in respect that no challenge had been made to the decision of the education authority. I indicated that I considered this point to be pars judicis and that I wished to hear Mr OCarrolls submissions.
Mr OCarroll for the pursuer submitted that the education authoritys failure to give reasons had been compounded by the Appeal Committees failure to give reasons which had been compounded further by the failure of the education authority to provide reasons for the original decision and its unsuccessful appeal in the answer to the Summary Application. The whole process, from the perspective of the applicant, was hallmarked by absence of reasons. The failure to give reasons was critical to the appeal and preparation for it because there was a need to see the connection between the incident which triggered the exclusion proceedings and the decision to exclude. Furthermore, on the face of it the decision appeared punitive rather than as one taken for management purposes.
It is apparent from reported cases that there has been a lack of consistency in the interpretation of the appellate powers and functions of the sheriff. The powers of the sheriff are set out in the Education (Scotland) Act 1980, Section 28H(7); The sheriff may, on an appeal under sub-section (6) confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision excluding the pupil until certain conditions stipulated by them are complied with, he may modify the conditions. This sub-section, it seems to me, gives the sheriff the clear power to examine the decision to see whether it is one which ought to be confirmed or annulled. In the present case the decision of the education authority is given in letter dated 31 January 2002, production No 2. At this point I think it is important to note that although the appeal is taken against the decision of the Appeal Committee (sub-section (6)), the sheriff is empowered to either confirm or annul the decision of the education authority. Section 28H(6) specifically applies the provisions of Section 28(F) whereby the education authority may, but the Appeal Committee, shall not be a party to an appeal. This underlines the duty of the sheriff, when exercising his appellate function, to examine the decision of the education authority. The Schools General (Scotland) Regulations 1975 deal in Part II with the organisation of schools. Regulation 4 provides that:-
In discharging their functions under the Education (Scotland) Act 1980, an education authority shall not exclude a pupil from a school under their management to which he has been admitted, except where
they are of the opinion that the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulations, or disciplinary requirements of the school; or
they consider that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there.
On my understanding of this Regulation, the education authority is given the sanction of exclusion only where certain conditions or grounds apply. In the present case, the education authority relies upon Regulation 4(b). Where a decision is taken to exclude a pupil, the education authority comes under certain and strict duties. Regulation 4A(1) provides that:-
the education authority shall ensure that on the day upon which the decision is taken, intimation of the decision shall be made orally or in writing to the parent of the pupil.
Thereafter, Regulation 4A(2) provides that the education authority shall ensure that intimation in writing is made within the period of 8 days immediately following the day upon which the decision is taken to the parent of the reasons for the decision to exclude. The decision of the education authority is contained in letter dated 31 January 2002. This letter states: The reasons for the exclusion are that the school considers; that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there. On my reading of Regulation 4, the purported reasons are in fact and in law a ground for exclusion. The letter goes on to state; The details of which (reasons) are; Aidan struck his taxi escort. See attached statements. The statements referred to are three descriptions of the incident only one of which is signed and dated (curiously) 5/02/02. Discounting these statements, which cannot properly be described as reasons, all that is left is the statement Aidan struck his taxi escort. It is, in my view, impossible to see why this incident of itself and without further explanation justifies the ground for exclusion that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there. This is particularly so in circumstances where the pupil is severely disabled and has a record of needs which states, inter alia, Aidan ... must have an adult in attendance at all times to ensure his own safety and that of other pupils as he is inclined to run off suddenly and to hit out at children and staff.
In my view, the decision of the education authority is not one which conforms with the strict regulatory obligation to provide reasons for the decision to exclude. In respect that the decision to exclude disconforms to Regulation 4A(2)(a) it cannot, in my view, be properly confirmed. Accordingly, it has to be annulled. Section 28H(7) of the 1980 Act does not permit me to do anything other than confirm or annul the decision of the education authority. In particular, it does not permit me to overlook the education authoritys failure to give reasons for its decision and to hear an appeal against the decision de novo. Having reached the conclusion that the decision of the education authority must be annulled for want of reasons for it, this determines the application. For the sake of completeness, had the education authority given reasons for its decision I would have taken the view that such reasons could properly have been examined by me in the exercise of my appellate function to see whether the decision was justified in all the circumstances of the case.
Act - O'Carroll, Advocate instructed by Govan Law Centre, Glasgow.
Alt - Williamson, Advocate, instructed by Legal Services Department, Glasgow City Council.