Why a Tribunal has mis-applied human rights law in closing an independent religious school

August 25th, 2016 by Tom Cross

In my post on 19 May (below), I highlighted that a decision of the First-Tier Tribunal that Beis Aharon Jewish school was in breach of various independent school standards was reached without consideration of Article 9 of the European Convention on Human Rights, which provides for a right to manifest one’s religious belief. Section 6 of the Human Rights Act 1998 requires Tribunals themselves to make decisions in accordance with human rights like Article 9.

 

In a very recent appeal against a decision to deregister a school whose curriculum centred around the Muslim faith, the First Tier Tribunal has attempted to apply Article 9. It appears, however, to have got it wrong.

 

In Cityside Primary Trust v Secretary of State for Education [2016] 2600.INS, the Tribunal decided to uphold a decision of the Secretary of State to deregister Ayasofia Primary School, an independent school of some 80 pupils. It was not registered as a faith school, but it is clear that all or the majority of its pupils were educated in accordance with Muslim belief and practice. A number of failings – in the sense that independent school standards were not met – were accepted by the school. But it argued that its deregistration would be a disproportionate interference with the Article 9 rights of its pupils. It said that the Secretary of State should instead give it more time to make improvements.

 

Rejecting that argument, the Tribunal said this in paragraph 46 of its decision:

 

“[A witness from the school] stated that Ayasofia followed a curriculum with particular characteristics, however, the evidence does not lead us to conclude that its religious instruction or ethos was outside the range of provision that would be available in a school with Islamic faith characteristics. Evidence was provided that the London Borough in which Ayasofia is situated has many maintained schools for primary aged pupils which, on balance of probabilities, will have a high proportion of Muslim pupils. Further, there are a number of independent Islamic primary schools. We do not consider the rights highlighted by [Counsel for the school] irrespective of other considerations require a different approach by the Secretary of State to regulation of Ayasofia. Whilst closure might inconvenience its pupils it does not deny their or their parent’s rights to the exercise of their religion and education. The effect of enforcement action relates to a particular school in this case for failure to meet National minimum standards. Whilst it was asserted the school matches the needs of a particular section of the religious community, we find the maintenance of National minimum standards by deregistration within the proportionate powers of the Secretary of State”.

 

A central – if not the only – part of this reasoning is that deregistration would not be a breach of pupils’ Article 9 rights because they could go to another school.

 

In light of the decision of the House of Lords in R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100, this reasoning may previously have been sufficient to dispose of an argument of breach of Article 9. In Begum, a majority of the House of Lords held there had been no interference with a pupil’s Article 9 right given that she had a choice of two alternative schools where she would have been permitted to wear the particular Muslim dress (the jilbab) which she wished. But it cannot now stand in light of the decision of the Grand Chamber of the European Human Rights in Eweida v UK 57 EHRR 8 [2013] IRLR 231. The effect of that Court’s analysis is that the possibility that a pupil (or employee) may avoid interference with their right to manifest their religion by moving school (or job) – if indeed that is true – is simply a factor to be weighed in the balance when considering the proportionality of the action which affects them.

 

Here, the Tribunal needed to consider, with care, whether the deregistration of the school (as opposed to giving it time to improve) was truly a proportionate way of achieving the aim pursued by the exercise of the power to take action against it (which aim was, presumably, the maintenance of standards in independent schools). In the language of Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 [2014] A.C. 700, it had to consider, among other things, whether deregistration would strike “a fair balance … between the rights of the individual and the interests of the community”. An understanding of the question it was required to ask itself, still less a properly reasoned answer to it, is regrettably lacking from the Tribunal’s decision in this case.

 

Tom Cross is co-author of the leading practitioner text on religious rights: The Protections for Religious Rights: Law and Practice (OUP: 2013).

 

 

 

Head Teacher’s Safeguarding responsibilities

July 20th, 2016 by James Goudie QC

A v B Local Authority and C Governing Body of School [2016] EWCA Civ 766 is concerned with whether an ET had been entitled to find that a Head Teacher of a primary school had been fairly summarily dismissed for gross misconduct, i.e. putting the safety of children at risk, for failing to disclose to the school authorities her close personal relationship with a male (IS) convicted of making indecent images of children by downloading them onto his computer. The ET’s finding was upheld by the EAT (Wilkie J presiding) and has now been upheld by a majority in the Court of Appeal (Black and Floyd LJJ).  Elias LJ dissented. Read more »

 

Upper Tribunal cases – capacity, the need for an EHC Plan and transport

July 8th, 2016 by Rachel Kamm

This blog has been slow to report on three Upper Tribunal cases about the capacity of young people to bring SEN appeals, the need for an EHC Plan, and home-school transport. Anyone would think that there had been some legal and political distractions recently.  Read more »

 

Term-time holiday prosecutions – appeal

June 12th, 2016 by Rachel Kamm

The Isle of Wight Council has announced that it has applied for permission to appeal to the Supreme Court against the Divisional Court’s judgment in the Platt case about term-time holiday prosecutions. The Council explains that it is appealing following a formal request from the Secretary of State for Education, who is funding the appeal and will seek to be joined as an interested party.

The press reports that Nick Gibb, Schools Minister, has written to all state schools to say that he was “disappointed” by the ruling and they should continue applying the current regulations that allow parents to be fined. He is quoted as saying that “The high court’s judgment did not establish a hard and fast rule… Instead a decision will have to depend on the individual facts of each case … While family holidays are enriching experiences, the school year is designed to give families the opportunity for these breaks without having to disrupt their children’s education. It is for schools to consider the specific details and relevant context behind each request. Schools know their pupils and are well placed to make those judgments.” (Guardian, Daily Mail, Telegraph)

Rachel Kamm, 11KBW, @kamm11KBW 

 

Fundamental British values

June 3rd, 2016 by Peter Oldham QC

The National College of Teaching & Leadership regulates teachers’ professional conduct on behalf of the Secretary of State. The Teachers’ Disciplinary (England) Regulations 2012 provide for the policing of “Teachers’ Standards”, a document published by SoS, which has a section entitled “Personal and Professional Conduct”. This includes the following:-

“Teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school, by: … not undermining fundamental British values, including democracy, the rule of law, individual liberty and mutual respect, and tolerance of those with different faiths and beliefs.”

On 25th May 2016, a NCTL panel held that Meena Chivers, a SENCO at a community school imprisoned for offences of physical violence outside an educational setting, had amongst other things “undermined fundamental British values, including … the rule of law, individual liberty and mutual respect”. The Panel recommended to SoS that she should be prohibited indefinitely from teaching. SoS accepted the recommendation and further determined that she should not be entitled to apply for restoration of her eligibility to teach. There is a right of appeal to the High Court against such orders.  The panel’s reasoning and decision are here.

The term “fundamental British values” also crops up in legislation. One of the required standards of quality of education at an independent school under the Education (Independent School Standards) Regulations 2014 is that the school’s written policy on the curriculum does not undermine fundamental British values. And conduct aimed at undermining fundamental British values is a ground for prohibition from managing an independent school under the Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014.

Peter Oldham QC

 

Term-time holiday prosecutions – judgment available

June 2nd, 2016 by Rachel Kamm

The Divisional Court’s judgment in Isle of Wight Council v Platt [2016] EWHC 1283 (Admin) is now available. See my previous posts on the topic.

The judgment provides further information about the factual background. Mr Platt’s daughter (M) had had two unauthorised absences in the school year in question. First, she had been absent for a week in February when she had been on holiday with Mr Platt’s ex-wife. Secondly, she had been absent for seven school days in April when she went on holiday with Mr Platt (which was the relevant absence). Before that April holiday, her attendance for the school year had been 95% and afterwards it was 90.3%. The local authority’s documents indicated that attendance of 90-95% was satisfactory.

The Court’s conclusion was that “The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school’s record of attendance. In this case, I note that the education authority placed before the court M’s record of attendance from 1 September 2014 to 7 July 2015. I consider that the magistrates correctly had regard to that wider picture. Moreover in all the circumstances of this case I am unable to say that their conclusion was not one reasonably open to them.” The Court therefore answered the question in the case stated as follows: the magistrates did not err in law in taking into account attendance outside the offence dates 13 April to 24 April 2015 as particularised in the summons when determining the percentage attendance of the child.

Mr Platt (represented by our Paul Greatorex) had run an alternative argument that  the absence of a definition of “regular” attendance meant that the provision was far too vague to be the basis of a criminal offence, let alone an offence of strict liability. The Court commented that it did not need to consider that issue in order to dispose of the appeal and that it would have needed to consider joining DfE as an interested party.

Rachel Kamm, 11KBW, @kamm11KBW 

 

Successful challenge to OFSTED nursery inspection

June 1st, 2016 by Peter Oldham QC

There is a rare example of a successful challenge to an OFSTED nursery inspection in R ota Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126, handed down last week, which can be found here.

In September 2013, the nursery received a glowing OFSTED report. Some months later, OFSTED received a complaint about a child at the nursery getting into the road, and it carried out what the nursery said was an investigation into the complaint, and an inspection.  OFSTED produced a very critical draft report, with a notice to improve. Some stipulations were held by the judge to be “so vague as to be meaningless” (though those in the field might not think that the one referred to in the judgment is very different from many they will have come across).  Further, OFSTED published on its website an “Outcome Summary”, which recorded that the investigation found that children’s safety had been compromised and that the provider had been sent a notice to improve.

A subsequent reinspection a few months later found that the provision at the nursery was outstanding across the board.

The judge found that:-

(1) OFSTED had indeed carried out an investigation into the complaint, which (as OFSTED conceded) it had no power to do under the Childcare Act 2006;

(2) there was in any event “no evidence” to support the investigation findings;

(3) the Outcome Summary was “thoroughly flawed” and its publication was unlawful;

(4) in producing the critical report, OFSTED acted in breach of its own guidance, which required it to look at inspection history.  The judge said at [73]:-

“73 A system of inspection which ignores previous inspections runs the risk of turning the whole process into a lottery. It would give the individual inspector on the particular day of the inspection an arbitrary power and influence. It would prevent systematic monitoring and consistency of approach. It is most definitely not to be encouraged.  

78 …  the fact that the claimant went from ‘grade 1 outstanding’ in all three categories to ‘grade 4 inadequate’ in all three categories in the space of seven months, before going back to ‘grade 1 outstanding’ in all three categories, just three months later, indicates that this was a rogue inspection and report. On analysis, I consider that this happened primarily because of: a) the unlawful investigation into and adjudication upon the complaint (and the unjustified findings reached to uphold that complaint); and b) the inspector’s failure to have regard to the previous report and the previous history of the nursery. … .”

A claim for damages for breach of Art 8 was rejected.

Perhaps understandably, the Courts have been wary of allowing judicial review claims against OFSTED.  Further, the rule in such cases as R ota City of Birmingham College v OFSTED [2009] ELR 500 makes it hard to get an interim injunction preventing publication of an OFSTED report pending the outcome of a judicial review claim, and publication can often render a claim somewhat pointless.  But this case is a reminder of the limits of OFSTED’s powers.  And perhaps the most important practical point is that it says OFSTED has to consider the findings of a particular day’s inspection in the light of the inspection history – whether good or bad.  Not an easy task for inspectors, but an important consideration for providers.

Peter Oldham QC

 

Aspects of the Tribunal’s decision in the Beis Aharon Trust case relating to religious rights

May 19th, 2016 by Tom Cross

For those, like me, who keep a close eye on the development of the law on religious rights and freedoms, the decision of the First-Tier Tribunal in Beis Aharon Trust v Secretary of State for Education is certainly eye-catching.

Beis Aharon School is an independent Orthodox Jewish school in Hackney. It appealed against a decision of the Secretary of State ordering it to stop admitting new pupils from 23 October 2015 because it was failing to meet a number of the legislative standards applying to all independent schools (religious or not).

The Tribunal upheld the Secretary of State’s order.

But a number of the things which the Tribunal decided were against the standards related to the religion of those at the school. I mention only three.

First, there are two duties in the standards (2(1)(a) and 5(vi)) about encouraging respect for other people, paying “particular regard” to the protected characteristics in the Equality Act 2010 (such as sex, sexual orientation, and so forth). The Tribunal considered that the school was not meeting these standards because it obscured, in educational materials, images of parts of the bodies of women and girls who were dressed in a manner which pupils would encounter in general life, even though the school regarded the images as “immodest” or “impure”. The Tribunal thought that obscuring such images “failed to encourage respect for women and girls for reasons of their gender”.

Secondly, the Tribunal considered that the school was in breach of the same standards because it “did not acknowledge to pupils, or enable them to acquire any awareness of [sic], that some people are different because of sexual orientation or gender reassignment”. This prevented the school “from encouraging respect for people who have such characteristics”. The Tribunal commented that it was “not necessary to provide information about sex to inform pupils that some people have same sex relationships or can have a reassigned gender and are to be respected”. It was, according to the Tribunal, “no defence to say that it is incompatible with the faith of the institution”.

Thirdly, in relation to the standard which requires that independent schools must “actively promote the fundamental British values of democracy … and mutual respect and tolerance of those with different faiths and beliefs”, the Tribunal held that this requires “something more than acknowledging other faiths exist”. It “requires at least an explanation which pupils will understand so that they know that members of different faiths have different beliefs, customs and values, and something about those matters”.

The Tribunal appears to have decided that, as a matter of interpreting the independent school standards, all such schools, whether religious or not, must be prepared to use educational materials showing unclothed parts of female bodies, provide at least some teaching to pupils about different sexual orientations and gender reassignment, and provide at least some teaching about the customs and values of members of different faiths, whether or not any or all of those matters conflict with the religious beliefs or practices of those at the school.

It may also be seen from the decision that the Tribunal’s decision that this particular school was in breach of the standards was reached without consideration of Article 9 of the European Convention on Human Rights (in accordance with which the Tribunal was legally obliged to act), which provides for a qualified right to manifest one’s religious beliefs, including in schools.

Will the case go further? Or will Tribunals adopt a similar approach in future cases? We’ll have to wait and see.

Paul Greatorex represented Beis Aharon Trust and Rachel Kamm represented the Secretary of State.

 

Term-time holiday prosecutions

May 14th, 2016 by Rachel Kamm

I blogged back in November about the Isle of Wight Council’s pending appeal to the High Court against the magistrates’ decision that Mr Platt had not committed a criminal offence by taking his child out of school for seven days in term-time for a holiday. In that post, I set out the legal framework and commented that it does not fix a particular number of days that count as regular attendance, that presumably whether or not attendance was regular would depend on the pattern of attendance rather than just the number of days ,and that it would be interesting to see whether the Court found that an unauthorised absence of seven consecutive days counts as regular attendance in this case (in the context of the child’s attendance record over a longer period).

The High Court has upheld the magistrates’ decision, finding that the magistrates were entitled to take into account the wider picture of the child’s attendance. There has been extensive media coverage of the decision (e.g. The Times (pay wall), Guardian, BBC and Telegraph) and we will post a link to the judgment once it is available. In the meantime, parents should be cautious about treating this as High Court endorsement of any term-time holiday – each case still will turn on its facts.

11KBW’s Paul Greatorex represented Mr Platt.

Rachel Kamm, 11KBW, @kamm11KBW 

 

 

Government drops plans to legislate to make all schools academies

May 6th, 2016 by Rachel Kamm

The Government has announced today that, whilst it is still committed to every school becoming an academy in the next six years, it will not legislate to require blanket conversion. Instead, it proposes legislating to “trigger conversion of all schools within a local authority in 2 specific circumstances: 

  • firstly, where it is clear that the local authority can no longer viably support its remaining schools because a critical mass of schools in that area has converted. Under this mechanism a local authority will also be able to request the Department for Education converts all of its remaining schools 
  • secondly, where the local authority consistently fails to meet a minimum performance threshold across its schools, demonstrating an inability to bring about meaningful school improvement“.

Rachel Kamm, 11KBW, @kamm11KBW