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Ali v The Head Teacher and The Governors of The Lord Grey School, Court of Appeal, 29 March 2004

6 April 2004
The issues

Education – Exclusion – School – Claimant’s right to Education – whether child excluded wrongly, had a right to damages under the Human Rights Act 1998.

The facts

The Claimant was a pupil at a school where there was a fire on the 8th March 2001. He and two other boys were suspected of involvement and they were excluded whilst Police enquiries continued. The Claimant argued that he had not been involved and that the fire had been started by one of the other two boys. On the 29th March they were charged with arson and the exclusion continued. The Claimant was due to sit SATS. Work was sent home by his teachers. On the 18th June, the Crown Prosecution Service discontinued. A re-integration meeting was arranged for the 13th July but the Claimant and his family did not attend for reasons, which were disputed. The School told the Claimant’s parents that the Claimant would be permanently excluded and his name removed from the School role. That happened on the 7th September 2001. The Claimant brought an action for damages against his Head Teacher and the governing body of the school, alleging a breach of Article 6 (Right to a Fair Trial) and Article 14 (Prohibition of Discrimination) and Rights under Protocol 1 Article 2 (Right to Education). The High Court Judge found that Article 6 had no application and applied only to civil rights and obligations and criminal charges; that the duty on the Protocol lay on the State and not the School and that it created no right to be educated at a particular school or in a particular way; that whilst a temporary exclusion was reasonable, an indefinite temporary exclusion was not; that in addition, the removal from the school run in the Autumn of 2001 was also unlawful – but these decisions were challengeable by judicial review, but did not give rise to a liability and damages for breach of rights under the ECHR. The Claimant appealed to the Court of Appeal.

The decision

1. The first period of exclusion was unlawful, because it was expressed as being indefinite. However, the Claimant had been given self-assessing work in preparation for his examinations and there was therefore no breach of his convention right. A reduction in the pupil’s standard of education, albeit based on an illegal act on the part of the State, is no more a violation of the convention right to education than an unlawful failure by the State to provide transport. In neither case was the essence of the right invaded.

2. In respect of the second phase or period, the School had an obligation either to re-admit the Claimant or to exclude him permanently after the permitted period of 45 days temporary exclusion. It had done neither and the exclusion therefore had become a nullity and amounted to a breach of the Claimant’s convention rights. It was unlawful, not in the earlier sense that it was imposed in proper circumstances but in improper form, but in the sense that it was done in defiance of a clear statutory prohibition.

3. In respect of this period, the LEA had offered to provide work at home. The offer did not lead to the same conclusion that there had not been a breach as in respect of the earlier period. It offended against good sense and justice to hold that to exclude a pupil, other than permanently at the school at which he is enrolled (when to do so was prohibited by law) was not a denial of his right to education, so long as substitute homework was offered to him. The Claimant’s right to education during this period was denied, notwithstanding that the School was offering to provide him with substitute work.

4. The denial of his right to education was not terminated by the deletion of his name from the school role because there was no lawful ground for deletion.

5. The Judge’s decision that the Respondents were not liable to pay damages under Section 8 of the 1998 Act for the period of exclusion up to the expiry of the 45-day period was upheld, and the Appeal in that regard was dismissed. The Appeal was allowed in respect of the final period of exclusion and the action would proceed to an assessment of damages.

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