Pupil wins High Court battle over transfer to off-site educational provision

A 16-year-old boy has won a High Court challenge over his school’s decision to transfer him to off-site educational provision.

The claimant in HA, R (on the application of) v Hampstead School & Anor [2016] EWHC 278 (Admin) was on the roll at Hampstead School, a community school maintained by the London Borough of Camden. Until the end of Year 10 he had been studying for seven GCSE examinations.

On 21 May 2015 the school made a decision to transfer him to off-site educational provision at The College of North West London, based in Brent.

Under these arrangements, the claimant would no longer have been able to pursue a full range of GCSE studies but would, instead, be required to undertake vocational training linked to various forms of manual work such as bricklaying together with core GCSE level equivalent studies in two subjects (Maths and English) and Level 1 Applied Science.

Pupils transferred to off-site education remain on Hampstead School's roll and are included in their performance statistics.

The claimant attended the College of North West London initially, but was so unhappy about the transfer that he ceased attending altogether and was, at the time of the hearing, for all intents and purposes, out of education altogether.

His legal challenge was directed to:

1. The school's initial decision to transfer him to off-site educational provision (the school’s stated reason for the transfer was not the claimant’s academic performance but his disciplinary record – the transfer was said to be necessary to prevent permanent exclusion); and

2. Its alleged failure to keep that decision under review as required by Regulations 4 to 6 of the Education (Educational Provision for Improving Behaviour) Regulations 2010.

The claimant argued – amongst other things – that the decision to transfer had been improperly delegated to the school’s inclusions manager, the only member of staff present at a final meeting with the boy and his father. The school submitted in response that its head teacher had taken the decision, on the advice of that manager.

The claimant also suggested that the initial decision was flawed for failure to follow the prescribed procedure laid down in the 2010 Regulations. In this respect it was common ground that the school did not serve the mandatory notice and that this rendered the decision unlawful.

However, the school argued that this could have had no material impact on the outcome and the claimant should be denied permission, or if granted permission, denied relief on discretionary grounds.

The case came before Ben Emmerson QC, sitting as a Deputy Judge of the High Court, as a rolled-up hearing on permission and merits.

In relation to whether there had been an improper delegation, the judge said he had not found this issue at all easy to decide.

“Accurate record-keeping is essential when important decisions are being made that may have a significant impact on a pupil's future and well-being,” he noted.

“Nonetheless, I have come to the conclusion that when one looks at the history as a whole, the decision was clearly taken over a period of time following consultation with a large number of staff members, culminating in the final communication of the decision to the claimant's father at the meeting with Mr. Stevens [the inclusions manager] on 21 May 2015.”

The judge said if he was wrong on this point, then he would have held that even if the challenge were well-founded it would not have resulted in a materially different outcome.

He also concluded that, applying the relevant thresholds for judicial review, he was unable to find that there had been an unexplained departure from the statutory guidance, nor that the decision was legally irrational.

Deputy Judge Emmerson QC did, however, find for the claimant both in relation to the procedural protection ground and the failure to review ground.

On the first of these, the judge rejected the school’s argument that the breach of duty was essentially technical and that it could not have made any difference to the outcome.

The deputy judge said: “Whilst there was evidence of poor behavioural standards over a period of years, the claimant's behaviour appeared to have improved in the twelve months prior to his transfer and the academic picture was mixed.

“I am far from satisfied that a reasonable decision-maker addressing his or her mind to all and only relevant factors would inevitably conclude that the proposed transfer would address the claimant's behavioural needs and would be in his best interests.”

He added: “The central flaw in the present case was a failure to formulate and communicate the reasons for the transfer and the objectives it set out to achieve. These are the very questions which remain opaque on the evidence when all of the considerations pointing in both directions are taken into account. Accordingly this ground of challenge succeeds.”

On the issue of keeping the decision under review, the school contended that the claimant’s non-attendance at the college meant that any review was inevitably pointless.

But the deputy judge suggested that the fact that a child was so unhappy that they had absented themselves from alternative educational provision altogether might, in some instances at least, be a material factor to be taken into account in a review.

“Whilst recognising the need to maintain the integrity of the system of alternative placements, it must be recognised that there could be cases in which a re-evaluation of the child's best interests might be called for.”

The deputy judge added that the fact that the claimant had failed to attend the college was not a sufficient reason for failing to conduct the reviews mandated by the Education Act 2002 and the 2010 Regulations. “On the facts of this case, I cannot conclude that a review would have made no difference.”

Deputy Judge Emmerson QC said the appropriate relief in relation to the procedural protection ground was a quashing order coupled with a mandatory order requiring the school to reconsider its decision within six weeks of the date of the sealed order in the matter.

“Since the transfer decision will have been quashed, the effect of the Court's order will be to require the claimant's immediate re-admission to the school for the six week period,” he said.

The deputy judge added: “As regards the second ground on which the claimant was successful, I would be minded to make a mandatory order requiring review of his placement. However, this would be rendered academic by the relief I have ordered in relation to the first ground.”