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GLASGOW, 26 July 2002. The Sheriff, having considered the appeal, Repels the first and third pleas-in-law for the defenders; Repels the second plea-in-law for the defenders in respect that it was not insisted upon; and having considered the admitted facts sustains the first, second, third, fourth and fifth please-in-law for the pursuer and Repels the remaining pleas-in-law for the defenders; Allows the appeal and Annuls the decision of an appeal committee of the defenders deemed in terms of Regulation 5(1) of the Education (Placing in Schools Etc – Deemed Decisions) (Scotland) Regulations 1982 to have been made on 14 March 2002 and to have confirmed the decision of the defenders’ Director of Education Services made on or about 16th November 2001 to transfer the pursuer’s son Steven MacKay to a school other than Govan High School, Glasgow and thereby to exclude him from said Govan High School. Finds the defenders liable to the pursuer in the expenses of the action, Allows an account thereof to be given in and Remits same when lodged to the Auditor to tax and to report.

 

NOTE

This summary application is brought in terms of section 28H of the Education (Scotland) Act 1980, as amended. It is an appeal to the sheriff by the father of a pupil, now 14 years old, concerning a decision of the defenders’ Director of Education to transfer his son to another school.

At the hearing before me on 19 June 2002 the defenders insisted upon their preliminary pleas-in-law Nos 1 and 3. It was stated that they did not insist upon their second plea-in-law. The pursuer insisted upon all his pleas-in-law except No 6. The solicitors representing the parties tendered a Joint Minute of Admissions which when considered along with the admissions contained on the Record (No 8 of process) comprised the evidence. The parties renounced further probation. The hearing proceeded upon that basis and in the course of submissions I was referred to certain productions to supplement the agreed facts.

I was given to understand that this appeal raises an issue which is important to those concerned with education in Scotland. Essentially, that issue relates to such power as an education authority in Scotland may have to transfer a pupil from one school to another school. The particular issue which arises for decision in this appeal is whether an education authority in Scotland has any power to transfer a pupil from one school to another school for a period of time longer than, or subsequent to, the period during which that pupil has been excluded from his original school.

On behalf of the defenders, Mr Miller, solicitor, Glasgow invited the court to sustain the defenders’ first and third pleas-in-law. Mr Miller pointed out that this summary application had been brought in terms of section 28H of the Education (Scotland) Act 1980, as amended. He referred to the terms of section 28H(6) which states "The decision of an appeal committee confirming an education authority’s decision to exclude a pupil or modifying conditions under subsection (2) above may be appealed against by the parent of the pupil or, where the pupil is a young person, the pupil to the sheriff having jurisdiction where the school from which the pupil has been excluded is situated, and subsections (2), (3), (4), (8) and (9) of section 28F of this Act shall apply to an appeal under this subsection." Mr Miller pointed out that the appeal committee is not to be a party to an appeal – section 28F(2). He also pointed out that the judgement of the sheriff on an appeal under section 28H is final – section 28F(9) and section 28H(6). Mr Miller referred to the terms of section 28H(1) which states "Where an education authority decide to exclude a pupil from a school under their management which he attends, the parent of the pupil or, where the pupil is a young person, may refer the decision to an appeal committee set up under section 28D of this Act."

Mr Miller submitted that what should be before this court on appeal was a challenge against a decision of an appeal committee set up under section 28D of the Act. Here there was no challenge of a decision of an appeal committee. The crave of the writ was "to annul the decision of the defenders made on or around 16 November 2001 to exclude the pursuer’s child&ldots;from school". Mr Miller submitted that the purpose of section 28H was to provide for a reference to an appeal committee in respect of a decision to exclude a pupil and for an appeal therefrom to the sheriff. He submitted that the position of the sheriff in dealing with an appeal under this particular section was similar to that in an appeal against the decision of a licensing committee in respect of a taxi licence or a liquor licence. Essentially, his submission was that in the particular circumstances of this case the only competent and relevant appeal to the sheriff was against the decision of the appeal committee dated 15 March 2002, which refused the appeal against the 2- day exclusion. Mr Miller accepted that there was a competent appeal to an appeal committee against that decision in terms of section 28H. But his submission was that since the matter of the transfer of the pursuer’s son to another school had not been put before or considered by an appeal committee the transfer decision made by the defenders’ Director of Education Services could not be challenged before the sheriff.

In order to consider the effect of these legal submissions it is necessary to refer to the agreed facts. 

The relevant facts are that the child was admitted to Govan High School on 10 October 2000. He was excluded for a period of five days on 8 December 2000. He was again excluded for a period of five days on 2 May 2001. He was then excluded on 11 October 2001 for a period of 20 days. Each day of exclusion is for one school day. This third exclusion became effective on 12 October 2001 and the child’s due date of return to Govan High School was 19 November 2001. The reason for this was the October holiday period which is not included in the calculation.

On 26 October 2001 the head teacher made a request to the education authority that the child be transferred to another school. A case conference was held on 16 November 2001 to discuss the circumstances which led to the third exclusion. Following this conference a decision was taken that the child would be transferred to Hillpark Secondary School. This decision (the transfer decision) was taken by the Director of Education Services on or around 16 November 2001 and was intimated to the pursuer by letter dated 19 November 2001.

It is admitted that as a result of the transfer decision that the child has not been permitted to return to Govan High School. Further to a letter from the pursuer’s solicitor dated 14 February 2002 seeking to appeal against the transfer decision the clerk to the appeal committee, by letter dated 15 February 2002 (No 6/18 of process), stated to the pursuer’s solicitor that "The ’transfer’ issue has been raised with your office on numerous occasions and the advice given to me by the Council’s Legal Services Section is that the decision to transfer pupils does not fall within the scope of legislation covering exclusions and must therefore be addressed as a separate issue with the Director of Education Services. If you decide to proceed with the appeal against the exclusion only, and should this be upheld in your client’s favour this would mean that the school record would be amended to reflect such a decision but this would not mean an automatic entry back to Govan High School".

On 15 March 2002 an appeal committee heard an appeal against the third exclusion. This appeal was unsuccessful. This decision was intimated to the pursuer’s solicitor on 19 March 2002.

Accordingly, the hearing before me proceeded upon an agreed basis that as a result of certain legal advice which had been tendered to the clerk of the appeal committee no appeal against the transfer decision has been considered by an appeal committee at any stage.

Under reference to the letter No 6/23 of process (which is wrongly dated 19 March 2001 and should be 19 March 2002, and is also wrongly dated so far as the date of the appeal is concerned), Mr Miller submitted that this letter was akin to a statement of reasons in a licensing appeal. He referred to an earlier decision of mind in the case of Claire Crawford v Strathclyde Regional Council, Glasgow Sheriff Court, 15 December 1994 and submitted that this along with certain other decisions all reported in 1999 FamLR 119/126, were relevant to the present issues. He referred the decision of Sheriff McPartlin at Elgin in the case of Inderhaug v Grampian Regional Council, unreported, 17 March 1993. The decision turns on the absence of proper reasons for the decision. He referred also to the decision of Sheriff McLernan in McDonald v Grampian Regional Council, 22 August 1995 at Banff and to his subsequent decision dated 20 May 1996. Again, the decision turned on the absence of reasons. Finally, Mr Miller referred to a decision of Sheriff I A McMillan at Stranraer dated 30 September 1993 in the case of Kelly v Dumfries & Galloway Regional Council. He submitted that the effect of these cases, particularly the case of Kelly by analogy, supported his submission that a transfer decision taken by the Director of Education could not competently be appealed to the sheriff under the existing legislation. He submitted that the appeal brought by the pursuer touched on matters which had not been raised before an appeal committee. He submitted that whatever remedy the appellant may have was not competently sought in the sheriff court and required to be taken in the Supreme Court. In particular, he referred to page 13 of Sheriff McMillan’s decision in Kelly. Accordingly, Mr Miller submitted that the present action was incompetent and, in any event, the crave was irrelevant.

So far as the matter of decisions to transfer pupils was concerned, Mr Miller submitted that no appeal to the sheriff had been provided for by the legislation. Mr Miller submitted that there were exceptional circumstances in which an education authority may transfer a pupil from one school to another. It was agreed in this case that the Director of Education was duly authorised by the defenders to carry out the functions of the education authority.

Mr Miller submitted that the statutory basis upon which an education authority was entitled to transfer a pupil was to be found in section 14(3) of the Act. The subsection states:-

"(3) If a pupil withdraws, excluded by the education authority (or with the consent of the authority in circumstances where he would have been so excluded but for his withdrawal), from a public school in their area they shall, without undue delay –

(a) provide school education for him in a school managed by them; 

(b) make arrangements for him to receive such education in any other school the managers of which are willing to receive him; or

(c) make such special arrangements as are mentioned in subsection (1) above".

Mr Miller submitted that the local authority had a continuing duty to a pupil to provide education. Accordingly, a pupil who was excluded fell within section 14(3) because that pupil in obedience to, but not necessarily in acceptance of, the decision to exclude had to withdraw from the school from which he had been or would have been excluded. Moreover, Mr Miller submitted that section 28A(3)(c) contained an implied power to transfer. This states "The duty imposed by subsection (1) above [which relates to the education authority’s duty to comply with parents’ requests as to schools] does not apply – (c) if the education authority have already required the child to discontinue his attendance at the specified school."

Mr Miller also referred to Green’s School Education Manual at paragraph 3:5:15/18. This deals with guidance in various situations regarding re-admission of a pupil to school, long-term temporary exclusion and exclusion involving removal from school register.

Mr Miller accepted that there was no other legislative provision regarding transfer of pupils. He referred to a Scottish Officer circular No 2/98 "Guidance on Issues Concerning Exclusion from School" at paragraphs 55 and 56. This is contained in a section relating to "Good practice in making decisions about exclusion in individual cases". He also referred to a management circular (No 8) issued by the defenders in January 1999 from the Director of Education. So far as pupil transfer is concerned the Circular states "the transfer of pupils does not fall within the scope of the legislation covering exclusions and must therefore be addressed as a separate issue. It will no longer be appropriate for reference to be made to a non-return to school or preference for transfer in documentation or correspondence related to the exclusion of any pupil".

Under reference to production No 6/27 Mr Miller pointed out that the Director of Education had written to head teachers regarding exclusion procedures on 2 September 1999. In that letter it was stated "Where a transfer request is submitted, a case conference will be held chaired by the pastoral senior education authority after the exclusion has been concluded and the pupil has returned to school." This was not to be the procedure of instances of violence to staff or pupils and the present case was one such exception. Nevertheless that did not alter the position which was that exclusion and transfer were separate and distinct matters. For all these reasons, Mr Miller invited me to sustain his first and third pleas-in-law.

In reply, Mr Nisbet submitted that the transfer decision taken on or about 16 November 2001 was a decision to exclude the pursuer’s son. Accordingly, the present proceedings were competent. Mr Nisbet made it clear that he did not contend that this was a constructive exclusion. He submitted that it was an actual exclusion. He submitted that there was no provision in the legislation regarding transfer of pupils. He submitted that the proper interpretation to be given to the word "exclude" in section 28H was its ordinary meaning which was to "debar from, to shut out, to eject". The effect of purported transfer decision was that the pupil was not to be allowed to return to Govan High School. He had been shut out or debarred and that was what had happened both in fact and in law. Accordingly, the appeal was competent. He referred to regulation 4 of the Schools General (Scotland) Regulations 1975. Regulation 4 states:-

"In discharging their functions under the Education (Scotland) Act 1980, an education authority shall not exclude a pupil from school under their management to which he has been admitted, except where –

(a)  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

(b)  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."

Mr Nisbet submitted that the decision as contained in No 6/14 or process had not been soundly based. Mr Nisbet pointed out that the reason given for transferring the pupil to another school was "in order to give him the benefit of a fresh start". Accordingly, this exclusion could not be justified on the basis authorised by regulation 4. Mr Nisbet stated that an appeal had been marked and a reference was made but the education authority, or at least the clerk to the appeal committee would not entertain it on the basis of advice which they had received.

Mr Nisbet then referred to the Education (Placing in Schools Etc-Deemed Decisions) (Scotland) Regulations 1982. He referred to regulation 5(1)(a) which states:-

"Subject to paragraph (2), where with respect to any reference, being a reference made under&ldots;section 28H of the Act, an appeal committee have – (a) failed to hold a hearing within the period of one month in the case of a reference made under section 28H of the Act,&ldots; immediately following receipt by them of the reference; the committee shall be deemed for the purposes of the Act to have confirmed the decision of the education authority in relation to the subject matter of the reference on the expiry of such period of one month &ldots;".

He submitted that the purpose of this provision was to prevent appeal to the sheriff being frustrated. He accepted that in terms of section 28H the appeal to the sheriff was against the decision of an appeal committee but these regulations provided that where no appeal committee sat there was a deemed decision with the result that the appeal could proceed. Under reference to section 14(3) of the 1980 Act, Mr Nisbet pointed out that the word "transfer" did not appear in the subsection. He accepted however that the duty of the education authority to continue to provide education to a pupil was such that during a period of exclusion the education authority required to provide school education in another school. Accordingly, in that sense the education authority could transfer an excluded pupil during the period of his exclusion. The present appeal was not concerned to challenge the exclusion for a period of 20 days. The purpose of the present appeal was to challenge the actual permanent exclusion which had taken place as a result of the transfer decision. Moreover, even if the decision of the Director of Education on or about 16 November 2001 could be seen as a transfer in terms of section 14(3), Mr Nisbet submitted that implicit in this decision was a decision to exclude the pupil from Govan High School.

It was accepted by both parties that there is no legislative provision empowering an education authority to transfer a pupil from one school to another beyond that provided for in section 14(3). In my judgement, the duty in terms of section 14(3) to provide education for an excluded pupil in a school managed by the authority entitles the authority to transfer that pupil to another school only for the period of the exclusion. I understood it to be accepted that the head teacher had only power to exclude the pupil for 20 days and any longer period of exclusion had to be determined by the education authority. Accordingly, whilst I accept that the education authority could have required this pupil to attend at another school in compliance with the duty under section 14(3), they could only do so for the 20 school day period during which he was excluded from Govan High School. In my judgement, at the end of that period, the pupil was entitled to return to Govan High School.

In my judgement, Mr Nisbet is correct to submit that the purported transfer order was an actual exclusion. The effect of it was that the pupil could not return to Govan High School from which he had been excluded for only a period of 20 school days. This was the position applied by the defenders having had legal advice in respect of the transfer of pupils – see No 6/18 of process (supra). Moreover, in my judgement, the reasons given for the purported transfer order were not sufficient to justify exclusion – regulation 5 of the 1982 Regulations.

In my judgement, since the defenders’ education authority had no power to transfer this pupil to another school for a period beyond the 20 school day period for which he had been excluded, their decision to do so cannot stand.

I am satisfied from the scheme and content of the legislation that Parliament intended a parent or, if appropriate, a pupil to have the right to appeal to the sheriff in respect of exclusions from school. This was an actual exclusion from school. In my judgement, it was not the intention of Parliament that where an education authority effectively excluded a pupil from one school by means of unlawful transfer to another school that it should be necessary to go to the Supreme Court to have that decision reviewed. In my judgement, it would be surprising if Parliament had intended that the sheriff should be appropriate where there was a challenge of a lawful exclusion but not appropriate when the exclusion was achieved indirectly and unlawfully by means of purported transfer. Accordingly, for all these reasons I repel the defenders’ first and third pleas-in-law. I sustain the pursuer’s first, second, third, fourth and fifth pleas-in-law. It seems to me that whilst it might be argued that there are certain technical imperfections in the crave, I should allow the appeal against the deemed decision of the appeal committee which, in terms of Regulation 5, confirmed the decision of the education authority on the expiry of one month from the date of appeal which as 14 February 2002.

I am very much obliged to both Mr Miller and Mr Nisbet for their careful submissions in this interesting case. It was agreed that expenses should follow success.