High Court quashes school expulsion appeal due to jurisdictional error and inadequate reasons given by the appeals committee.

Neutral Citation Number: [2011] IEHC 278

THE HIGH COURT

2011 266 JR

BETWEEN

CITY OF WATERFORD VOCATIONAL EDUCATIONAL COMMITTEE

APPLICANT

AND

THE SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SCIENCE, TOMMY FLYNN, JACQUELINE Ní FHEARGUSA

AND SEAN SLOWEY

RESPONDENTS

AND

ALPHA BETA

NOTICE PARTY

JUDGMENT of Mr. Justice Charleton delivered on the 27th day of July 2011

1. Section 29 of the Education Act 1998 provides for appeals from decisions within schools whereby a proposed pupil is declined

enrolment, or an existing pupil is either suspended or expelled. Any such decision by school authorities may be appealed to the

Secretary General of the Department of Education and Science. That official appoints a committee to hear the appeal, which I shall

refer to as “the appeals committee”. Section 29(4) indicates the procedures to be followed on that appeal. Hearings are to be

conducted with a minimum of formality, consistent with giving all of the parties a fair chance to put their point of view; appeals are to

be dealt with within thirty days of the receipt; and before there is any hearing, the parties are to be encouraged to reach any

agreement that may be possible in the circumstances. Section 29(5) requires the appeals committee to make a written decision,

giving reasons therein for its determination, and to notify the Secretary General of the Department who, under subs. 7, will notify the

interested parties. These will usually be the parent of a child and the board of management of the school in question. Where an

appeals committee, under subs. 6, allows an appeal, it can make a recommendation so that any issue which was upheld on the appeal

may be addressed and remedied. These appeals are conducted by way of a complete re-examination. In other words, they are

broadly the same as an appeal from the Circuit Court to the High Court; although the appeals committee is not bound by court

procedures. This means that on appeal, the parties will be free to put fresh documents before the committee, or to offer new oral

views or, what might loosely be called, oral testimony and to bring forward new people to be heard. Subsection 10 makes this clear; it

provides that the appeals are to be “by way of a full re-hearing”.

2. In Board of Management of St. Molaga’s National School v. Secretary General of the Department of Education and Science [2010]

IESC 57, (Unreported, Supreme Court, 23rd November, 2010) Denham J., for the Supreme Court, analysed the form of the relevant

legislation and then stated at paras. 25 to 26:-

“Consequently, the appeals process enables the appeals committee to have a full hearing on the matter and if so

determined to replace its judgment on the matter for that of that [board of the school] and to make such

recommendations as it considers appropriate. Such a decision is anticipated as a possible outcome of an appeal by the

section itself, in the provisions enabling a Secretary General to require a board to remedy a situation in accordance with

the recommendation of an appeal committee.

Thus the jurisdiction of an appeals committee is not limited to a review, for example, of the lawfulness or reasonableness,

of a decision of a board of management.”

The Facts in Issue

3. The pupil in question I will call Delta Beta, as he is a minor. At the time when all of the trouble to which I shall refer came to a

head, he was only thirteen years of age. He was a pupil in St. Paul’s Community College in Waterford City, which is a secondary

school. Difficulties began in September 2009 almost as soon as he had entered first year. Up to Christmas 2009, there were a number

of minor incidents of discipline and conduct and some more serious ones. The school responded by suspending him on a number of

occasions. The school authorities also offered him counselling by arranging two home visits and by involving the school chaplain. After

Christmas his bad behaviour persisted. There was name calling, using very unpleasant language, striking another student with his foot,

assaulting a student and a failure to engage with school discipline. There were, again, counselling sessions and disciplinary reports

and at least one further home visit. It was clear that the pupil was disruptive. On one occasion he threw a bag at a teacher and

called her a very rude name. His mother appears to have responded on occasion to engagement with the teachers by anger; though

on at least one occasion she apologised. A student who apparently called the boy some names was beaten up in the gym. On the

14th May 2010 he was put on a reduced timetable until the end of the term and then after his last suspension he was also required to

engage with the discipline of school life.

4. On the 25th May 2010, a teacher saw him tripping up another boy. She pointed out to him that this conduct was dangerous. She

asked for his mobile phone. It was, he responded, in another place. When he was refused leave to get it, he also reacted with bad

language and a threat to headbutt the teacher. He then went to headbutt another teacher. That teacher asked him to stop but he

repeated the manoeuvre. He then landed a spit on the teacher. As a response to the remonstrations of the staff, the student then

turned and stormed out of the school, cursing aloud and kicking the doors. This is only an outline. I have not gone into detail as any

adjudication on the facts is not for the High Court but for the school authorities and, if there is an appeal, for the appeals committee.

5. A special meeting of the board of management of the school was held on the 22nd June 2010. In the course of it, these issues

were discussed. The boy’s father attended made a number of what seem to be sensible points. The school decided to expel the pupil.

Under the school’s internal process, there was a right of appeal from the decision of the board of management to the Waterford City

Vocational Educational Committee. That appeal was taken by the boy’s father and was unsuccessful.

Decision in issue

6. The matter was then appealed by the boy’s father under s. 29 of the Education Act 1998, in the manner I have indicated. The

appeals committee upheld the appeal, requiring the school to take the boy back, and stated that it made its decision for the reasons

which follow:-

• “[Delta Beta] is only thirteen years old [date of birth given] and has been out of school since May 2010.

• There is a distinct lack of other educational alternatives for a boy such as [Delta] in the city of Waterford.”

7. The appeals committee said that it took a range of issues into account, including the oral and written presentations of both

parties; a presentation by the Education and Welfare Officer for Waterford; and the challenges experienced by the school in dealing

with the boy’s unacceptable behaviour. As the appeal was being allowed, the statutory scheme allowed for a recommendation to be

made. The recommendation proposed the reintegration of Delta into the school on a phased basis; advised that the school draw on

internal and external resources in the management of Delta’s future behaviour; stated that behaviour support services nationally

should be utilised; and, finally, indicated that Delta should negotiate a contract of behaviour between the school, his parents, and

himself.

Challenge

8. A challenge by way of judicial review has been made on several grounds against the decision of the appeals committee. Of these,

the most pertinent are that the appeals committee failed to give reasons; that the decision was contrary to common sense; and that

the appeals committee exceeded its authority by taking into account school placements as opposed to confining itself to what is

argued to be its sole function. That sole function is claimed to be that the appeals committee should put itself in the place of the

board of management of the school and decide afresh whether the nature of the conduct of the pupil merited expulsion. It is further

argued that the giving of additional reasons by the appeals committee outside of the terms of the document making the decision, by

way of later affidavit filed in the High Court, is inadmissible.

Legal principles

9. The legal principles applicable to a judicial review of this kind can be concisely stated. The High Court, having a supervisory

jurisdiction over administrative and judicial tribunals, is not entitled to engage in a usurpation of any fact-finding powers which is

conferred on these tribunals or to otherwise take on their function. Instead, any decision as to the merits may only be reviewed if, of

its nature, “[it] is unreasonable in sense that it plainly and unambiguously flies in the face of fundamental reason and common sense”:

see Meadows v. Minister for Justice [2010] 2 I.R. 701 at 827, per Fennelly J.; see further Efe v. M.J.E.L.R. [2011] IEHC 214,

(Unreported, High Court, Hogan J., 7th June, 2011) which comments on the proportionality element of such an analysis. The

detachment of the High Court from the decision under review is emphasised by the inability of the High Court, even on quashing the

decision for that reason, to substitute its own view. Instead, the decision must be returned to the appropriate tribunal so that it may

be considered afresh.

10. A denial of fair procedures can undermine the fairness of a decision-making process. The procedures properly to be adopted for an

adjudication or hearing depend upon the nature of the decision to be made and the nature of the hearing contemplated by the

relevant statutory context. Many kinds of hearing can be fair. The criminal trial model does not always have to be perused. There are

basic tenets to a fair hearing. Concisely put, people who have an immediate interest in the decision must be entitled to make

representations. This may be done orally or in writing. No party before the tribunal can be given a stronger position than any other.

Consequently, while it may be appropriate only in some circumstances to seek oral presentations, once one party is given an

entitlement to make an oral presentation that facility cannot be denied to other parties. This ensures that the decision-making

process is transparently fair. In some circumstances, questioning may be required to be allowed; see Davey v Financial Services

Ombudsman [2010] IESC 30 (Unreported, Finnegan J, Supreme Court, 10 May 2010). Once the matter has been considered by the

administrative body or tribunal by way of a hearing or a formal consideration of the relevant documents, or both, it cannot thereafter

pursue it own inquiries or accept oral or written material from only one of the parties. To do so, would be to deprive the parties, or

the party left out, of awareness of this material and thus to shut them out from making what might be an important point in reply. 11.

A tribunal, such as the appeals committee in question, is a statutory creation. In consequence it can only do what the relevant

statute allows it do. If it does more, then it risks falling into an excess of jurisdiction. That excess of jurisdiction can deprive its

decision of validity.

12. Judicial and administrative tribunals should give reasons for their decisions. These need not be elaborate. The reasons must be

such, however, that the parties who have participated in the hearing, with their background knowledge of what the issues were, will

be aware as to why the tribunal made its decision in one way or another. A district judge, for instance, in hearing a criminal case in a

summary manner in the District Court, does not have to give elaborate reasons in convicting or acquitting an accused in a summary

trial. Instead, once the district judge makes it clear why the case for the prosecution is accepted, for instance that a particular

witness is believed, or that the prosecution case is so strong as to establish proof beyond a reasonable doubt, or, when acquitting

the accused state that the testimony of the accused has raised a reasonable doubt, or that the prosecution case was infirm on a

particular point, a sufficiency of reasons is given. As well as construing any reasons given by a tribunal against the background of the

issues which were before it, the entirety of the decision should be read on any subsequent judicial review. The High Court, in

exercising its jurisdiction in supervision of judicial and administrative tribunals, is not entitled to take sentences in isolation from the

entirety of a document recording the decision or to parse particular sections of a decision so as to distort its meaning. In O’Keeffe v.

An Bord Pleanála [1993] 1 I.R 39 at 76, Finlay C.J. put the test as to construing the decision of a tribunal in this way: “[w]hat an

intelligent person who had taken part in the appeal or who had been appraised of the broad issues which had arisen in it would

understand from this document, these conditions, and these reasons”. The degree to which the reasons for a decision have to be

elaborated on varies with the nature of the decision itself: F.P. v. Minister for Justice [2002] 1 I.R. 164 at 172 to 173 per Hardiman J.

Sometimes, in straightforward matters, reasons may be terse. In difficult or technical matters, more than that may be needed.

Reasons are to be stated there and then, not added later upon challenge. Where reasons stated within a written decision are shown

to be manifestly flawed, these cannot be supplemented by better reasons, or correct reasons, at any stage after the decision is

made. Sometimes evidence can be admitted to elucidate a reason which is laconically expressed or, exceptionally, where a mistake

occurs, to correct a mistake. Elucidation may, in guarded circumstances, be accepted but not alteration; R. v. Westminister City

Council, ex parte Ermakov [1996] 2 All ER 302.

13. Finally, a written decision may contain an error of law so as to undermine the record. This is an issue which has become far less

important in modern judicial review proceedings.

14. In summary, the only function which the High Court has is to review the procedures of a tribunal and the exercise of its

jurisdiction. This is not the exercise of a decision-making appellate role. Judicial review is not to be invoked so as to undermine the

proper exercise of administrative powers: Devlin v. Minister for Arts [1999] 1 I.R. 47 at 58 per Murphy J.

Jurisdiction

15. The crucial issue is as to the jurisdiction of the appeals committee. In this regard I note that the High Court has not previously

given guidance as to the exercise of this important function and it is hoped that this judgment will be of assistance in the future.

16. The function of a school board in deciding on the expulsion of a pupil is to consider what is relevant to that decision. This does

not include whether other placements may be available in the immediate area should the expulsion take place. Instead, the decision

focuses on the behaviour of the pupil and the context within which that behaviour occurred. The appeals committee is in precisely

the same position. The issue before it, therefore, is whether the behaviour of the pupil, taken within the proper context, warrants the

expulsion. In the course of this judicial review, an affidavit was sworn by a member of the appeals committee giving a reason for the

decision to overturn the expulsion of Delta Beta, which was otherwise absent from the decision. This reason was that the behaviour

of the pupil did not warrant expulsion. It is clear that the law on administrative and judicial tribunals does not encompass the addition

of reasons beyond the document wherein the decision is officially set out. Were such a procedure to be allowed, afterthoughts would

replace the reliability which the parties to a tribunal are entitled to expect that the decisions of any judicial or administrative tribunal

will encompass.

17. As this is the first case of its kind to come before the High Court, it is therefore appropriate to indicate what factors can be taken

into account by a board of management in considering an expulsion. These factors will be the same for the appeals committee. In

considering whether to require a student to leave a school, it is appropriate to focus on the behaviour of the pupil and the effect of

that behaviour on the school; the track record of the pupil up to the point of the precipitating issue or issues; the attempts by the

school at diverting, correcting or checking the behaviour; the merits of whatever mitigation is offered for the behaviour (by which I

mean contrition, any explanation that is offered for behaviour, and any response of the pupil to the school’s efforts); and the

demerits of mitigation (by which I mean a lack of contrition, wilfulness, spite or an unwillingness to accept help). What a school

board, and thus what an appeals committee, cannot take into account are the alternatives which the education welfare officer may

be in a position to offer; the resources of the school; and external resources. It is worth emphasising that on an appeal the appeals

committee is concerned with whether or not the expulsion was warranted. This has nothing to do with whether there is an alternative

place. The responsibility for that function is elsewhere. These are separate and distinct statutory functions. It would be wrong for an

appeals committee not to grant an appeal where, in the first instance, the expulsion of the pupil was not warranted, simply because

the pupil has an alternative place in education available to him or her and thus does not want to go back to the school. Equally, the

appeals committee cannot grant an appeal because the pupil does not have an alternative place.

18. In summary, jurisdiction was exceeded by the appeals committee and the reasons given were not adequate.

19. I might comment, finally, that it is apparent that the appeals committee approached its task with diligence and with a sense of

compassion and arrived at its decision through a transparently fair process. The appeals committee is not to be faulted for taking an

incorrect view of the law which limits its jurisdiction. That, however, is what occurred. Whereas I take no side on this issue, it may be

that returning a pupil to a school from which he or she has been unfairly expelled would be considered by many as an appropriate

vindication of character. On the other hand, where an expulsion is warranted, a fresh start, either by way of home tuition, or by way

of integration into a completely different atmosphere, a lesson perhaps having been learnt by the pupil, may be the best way to

proceed. This, however, is not my decision. It will be the decision of a new appeals committee. Certain matters need, however, to be

borne in mind. There has to be authority. There might be an unpleasant or an attractive decision open to the decision-making body.

Whatever decision is arrived at, it must be pursued in fairness. Openness to information and a real willingness to hear both sides and

to try and be objective are among the marks of fairness. Whereas the appeals committee exhibited all of these qualities, jurisdiction

was exceeded and incorrect and inadequate reasons were given for its decision.

Result

20. In the result, the Court will quash the decision of the appeals committee advising the Secretary General of the Department of

Education and Science in relation to Delta Beta which is dated the 15th December 2010. The matter will be remitted for a fresh

hearing.