CASE OF ALI v. THE UNITED KINGDOM
Remainder inadmissible;No violation of P1-2
David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1987 and lives in Milton Keynes. 6. The applicant attended The Lord Grey, a maintained secondary (foundation) school (“the school”) (see paragraph 23 below). On 8 March 2001 a fire was discovered in a waste paper basket in a classroom. The fire brigade took the view that the fire had been started deliberately and the police were informed. The applicant and two other pupils were identified as being in the vicinity of the classroom at the time the fire was started. The Deputy Head advised the three boys that they should not return to the school until the police investigation was completed. Contrary to the statutory procedure for school exclusions set out in sections 64 – 68 of the School Standards and Framework Act 1998 (“the 1998 Act”) and the Department for Education and Skills Circular 10/99 (“the DfES circular”), no time limit was placed on the applicant's exclusion (see paragraphs 22 – 24 below). 7. On 21 March 2001 the Head Teacher wrote to the applicant's parents to tell them that he remained excluded from school until 5 April 2001. She offered to provide extra work for the applicant and stated that if his parents so wished, they could write to the Chairman of Governors to discuss the matter with them. This letter did not comply with the 1998 Act and the DfES circular as it failed to advise the applicant's parents that they had a right of appeal to the Governors of the School. Moreover, the Governors also failed in their duty to hold a hearing to confirm the exclusion or re-instate the applicant as required under the 1998 Act. 8. On 25 April 2001 the Deputy Head Teacher wrote to the applicant's parents to exclude him further until 15 May 2001. The letter was drafted in similar terms to that of 21 March 2001, and for the same reasons it failed to comply with the statutory requirements in the 1998 Act and the DfES circular. 9. During the period of exclusion, the school had been sending the applicant revision-based, self-assessing work in mathematics, English and science. This continued until 14 May 2001, the date of the applicant's final Standard Assessment Tests (“SATs”). He was permitted to attend school from 8 to 14 May 2001 in order to sit these examinations. 10. On 8 May 2001 the Personnel and Resourcing Committee of the Governing Body of the school met and were informed that the three pupils suspected of involvement in the fire had been excluded. Contrary to the requirements of the 1998 Act, the Governing Body did not convene a Governor's Disciplinary Committee or consider either the exclusion of the applicant or whether he should be reinstated. 11. The applicant was charged with the offence of arson against the school and he entered a not-guilty plea. On 25 May 2001 the Deputy Head Teacher wrote again to the applicant's parents. She indicated that as some of the witnesses in the case were students at the school, the applicant and the other two boys could not be permitted to return until the proceedings were concluded. She further indicated that she was making a referral to the access panel for alternative provision for the applicant's education. Finally, she advised the applicant's parents that he was being excluded for a further twenty days from 14 May 2001 and that the school would continue to set work as appropriate. The applicant's parents were asked to contact the school to arrange to collect the work. They did not contact the school and no work was set after 14 May 2001. 12. On 25 May 2001 a form referring the applicant to the Local Education Authority (“LEA”) for the provision of alternative education was finalised, although it was not received by the LEA until 8 June 2001. 13. Under the 1998 Act there was a standard 45-day maximum period for fixed term exclusions. That 45-day period expired on 6 June 2001. 14. On 18 June 2001 the Crown Prosecution Service notified the applicant's solicitors that the prosecution had been discontinued on the ground that there was insufficient evidence for there to be a realistic prospect of conviction. The following day the applicant attended court and the proceedings were formally ended. He then went to the school to meet with the Head Teacher, who advised him that she would act to arrange his re-entry as soon as she received written confirmation of the cessation of criminal proceedings. She received a fax to this effect from the court on 22 June 2001 and official notification from the police on 3 July 2001. On 3 July 2001 she wrote to the applicant's parents, inviting them to attend a meeting on 13 July 2001 to facilitate his re-integration. The invitation was extended again on 4 July 2001. 15. The LEA's access panel met on 19 June 2001, unaware that proceedings against the applicant had been discontinued. The panel recommended that the applicant should be provided with tuition by the Pupil Referral Unit (“PRU”) until a decision was taken on his future at the school. The PRU offers part-time education to children who are out of school, generally because they have been excluded, but it is not required to provide the full national curriculum. On 27 June 2001 the LEA's Flexible Learning Co-ordinator wrote to the applicant's parents to inform them that the PRU would provide tuition until term ended on 20 July 2001 while the school resolved the exclusion issue. The school alleged, and the domestic courts subsequently accepted, that the Flexible Learning Co-ordinator had again contacted the applicant's parents in early July 2001 and they had declined the offer of tuition. The applicant's parents, however, deny that any offer was made at the beginning of July. 16. The applicant's parents did not attend the meeting with the Head Teacher on 13 July 2001. The reason for non-attendance was heavily contested but the judge at first instance concluded that they had chosen to stay away. One of the other two boys did attend and was admitted back to the school. However, as a consequence of their non-attendance, the Head Teacher wrote to the applicant's parents to advise them that she was removing the applicant from the school roll. The school governors and the LEA were also copied in. The applicant's name remained on the roll until the middle of October 2001 although he was not provided with any education by the school during this period. 17. In September 2001 the applicant was due to begin the first term of the first year of his GCSE studies. He did not return to the school. At the end of September 2001, the LEA's welfare service completed a notification of absence. On 5 October 2001 the LEA wrote to the Head Teacher, stating that the applicant was in Bangladesh and that a place at the school was not required for him. The judge at first instance accepted that this was wrong: the applicant had not been in Bangladesh and had been at home all along. Neither the school nor the LEA contacted the applicant again before removing his name from the roll, and the applicant and his parents were not subsequently informed of the removal. 18. In mid-October 2001 the applicant's family met with the Flexible Learning Co-ordinator. At this stage they were unsure about whether they wished the applicant to return to the school. They were advised to decide quickly, and to arrange interviews either at the school or at other schools so that he could resume his education on a full-time basis. From about the third week in October, the applicant's parents made it clear that he wished to return to the school. On 6 November 2001 the applicant's father wrote to the Head Teacher formally to request his re-instatement. On 14 November 2001 the Deputy Head Teacher replied, advising that the applicant's name had been removed from the roll, that his place had been allocated to a student on the waiting list and that the school was now oversubscribed in his year group. The applicant's father was advised to contact the LEA to find another school place. On 20 January 2002 the applicant was admitted to a new school, the Leon School. 19. The applicant issued a free-standing human rights claim against the school in the County Court, claiming, inter alia, that his right to education had been violated contrary to Article 2 of Protocol No. 1 to the Convention. The LEA was not a party to the proceedings. The case was transferred to the High Court. In rejecting the application, the judge held that the school was not the cause of the respondent's lack of suitable education between 13 July and the end of the summer term on 20 July because his family had declined the LEA's offer of tuition. The cause of the respondent's lack of schooling or education during the autumn of 2001 was more complex to ascertain but it was the LEA's responsibility to provide suitable education and there were educational facilities available to him. Thus although the decisions to exclude the respondent and to remove him from the roll were unlawful in domestic law, and could have been challenged by judicial review, they did not give rise to a liability in damages for breach of his rights under Article 2. 20. On appeal, the Court of Appeal found that the provision of self-assessing work during the first 45 days of exclusion amounted to sufficient access to education to answer the applicant's Convention claim. However, the Court of Appeal held that the respondent's right to education was denied between 7 June and 13 July, notwithstanding that the school was still offering to provide him with substitute work to do at home, a matter held to be relevant only to damages. In relation to the last phase of the respondent's exclusion, from 14 July 2001 – 20 January 2002, the Court of Appeal regarded removal of the respondent's name from the school roll as improper, although giving rise to no separate legal consequences. But the respondent's exclusion during this period was, as the judge held, unlawful and unreasonable. In para 64 of the judgment the Court of Appeal concluded: “So characterised, the exclusion of [the respondent] from 14 July until he was finally placed in a new school amounts, in my judgment, to a further denial of his Convention right to education. It was complete and it was prolonged. It was not terminated by the deletion of [the respondent's] name from the school roll because there was no lawful ground for deletion. To the extent that it may nevertheless have been acquiesced in, the damage may be mitigated. But this is not our present concern, and it will require (if the case goes that far) a factual inquiry into a number of things including the family's state of knowledge and understanding.” “... the bare existence of the education authority's fallback duty, together with [the respondent's] right to seek to enforce it, relieves the school either of its obligations or of the legal consequences of failing to discharge them. On the contrary, it is on the two public authorities who are the present respondents (or put more realistically, the school) that the state has chosen to devolve the material elements of the obligation which it has undertaken to provide universal secondary education. It is the head teacher and the governing body who in law bear the primary duty to educate a child who has been accepted in their school and, as a corollary, not to exclude him except as authorised by law.” 22. The school was granted leave to appeal to the House of Lords. In the course of the proceedings, the applicant did not contest the lower courts' rejection of his complaint that the period of exclusion between 9 March 2001 and 6 June 2001 had violated his rights under Article 2 of Protocol No. 1. In relation to the period of exclusion after 6 June 2001, the House of Lords unanimously held, albeit for different reasons, that there had been no violation of Article 2 of Protocol No. 1. The majority accepted that the applicant's exclusion from school was at times unlawful, but held that there would be a denial of the Convention right only if there were a systemic failure of the education system which resulted in the applicant's not having access to a minimum level of education. As regards the scope of Article 2 of Protocol No. 1, Lord Hoffman stated that: “This does not however guarantee access to any particular educational institution the domestic system does provide: see Simpson v United Kingdom (1989) 64 DR 188. Nor is there a right to remain in any particular institution. Everyone is no doubt entitled to be educated to a minimum standard (R (Holub) v Secretary of State for the Home Department [2001] 1 WLR 1359, 1367) but the right under article 2 extends no further.” 23. The House of Lords found that in this case there was no systemic failure of the education system: the applicant's parents failed to collect work from the school; the offer of tuition from the PRU was declined; the applicant's parents failed to attend the meeting at the school on 13 July 2001; and finally, during the autumn the LEA's attempts to secure the applicant's re-admission to school were thwarted by his parents' uncertainty. Baroness Hale of Richmond, however, was concerned that the applicant had been let down badly by the school, although she also allowed the appeal because, in view of the judge's findings, it would not have been just to require the school to pay damages when the applicant's parents had refused various offers of tuition. Nevertheless she indicated that this was the paradigm of a case in which it would be just and appropriate to grant the applicant a declaration that the school had acted in a way that was incompatible with his rights under Article 2 of Protocol No.1. 24. Section 10 of the Education Act 1996 (“the 1996 Act”) places on the Secretary of State for the Home Department the general duty of promoting education for the people of England and Wales. This obligation has been largely discharged by LEAs. Pursuant to sections 13 – 18 of the 1996 Act, the LEA has a general responsibility for education and is required to secure that efficient primary and secondary education are available to meet the needs of the population of their area. Section 19(1) of the 1996 Act further provides that each LEA shall make arrangements for the provision of suitable education at school for those children of compulsory school age who, by reason of exclusion, may not otherwise receive suitable education. Moreover, the DfES circular further provides that the LEA should ensure that temporarily excluded pupils are reintegrated where possible and educated meanwhile. 25. Foundation schools were established under section 20 of the School Standards and Framework Act 1998 (“the 1998 Act”). They have wider self-governing functions than other maintained schools. Pursuant to section 15 of the 1998 Act, LEAs can only intervene in the management of a Foundation school if there has been a serious breakdown in the way the school is managed or governed, or the safety of the pupils or staff is threatened. General responsibility for the conduct of the school lies with the governing body (section 38 of the 1998 Act), while the Head Teacher is responsible for the internal organisation, management and control of the school (section 61 of the 1998 Act and Regulation 5(1) of the Education (School Government) (Terms of Reference) (England) Regulations 2000). 26. The legislative provisions concerning school exclusions are contained in sections 64 – 68 of the 1998 Act and the DfES circular. Pursuant to these sections, a Head Teacher of a maintained school may exclude a pupil for a fixed period or permanently, but the pupil may not be excluded for one or more fixed periods which amount to more than 45 days in one school year. Exclusions should be for the shortest time necessary, and should not be used for, inter alia, punishing pupils for the behaviour of parents. Where a pupil is excluded, the Head Teacher must take reasonable steps to inform relevant persons (in this case, the parents) of the period of exclusion, the reasons for the exclusion, and that he or she may make representations to the governing body. If a pupil is excluded for more than 5 days in any one term, the Head Teacher must inform the LEA and the governing body. The governing body must then consider the circumstances in which the pupil was excluded, any representations made by a relevant person, and, where practical, whether the pupil should be reinstated. The LEA must make arrangements for enabling the relevant person to appeal against any decision of the governing body not to reinstate a pupil who has been permanently excluded.