F.D. v Minister for Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 13 September 2019
• Neutral Citation: [2019] IEHC 643
• Court: High Court
• Docket Number: [2019 No. 525 J.R.]
• Date: 13 September 2019

[2019] IEHC 643

THE HIGH COURT

JUDICIAL REVIEW

Allen

[2019 No. 525 J.R.]

BETWEEN

F.D. (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND J.C.

APPLICANT

AND

MINISTER FOR EDUCATION AND SKILLS, PAIRIC MCDONOGH, SEAN ROWLEY

AND

CHRISTINA CASSERLY

RESPONDENTS

AND

BOARD OF MANAGEMENT OF A SECONDARY SCHOOL

NOTICE PARTY

Judicial review – Exclusion – Irrelevant considerations – Applicant seeking an order of certiorari quashing a decision of an appeals committee – Whether the committee was entitled to decide the issue of expulsion

Facts: The applicant applied to the High Court for an order of certiorari quashing a decision of an appeals committee which was appointed pursuant to s. 29 of the Education Act 1998, rejecting an appeal against a decision of the board of management of a secondary school to permanently exclude him from the school. The decision of the appeals committee was challenged on four substantive grounds. The first substantive ground was that the committee was not entitled to decide the issue of expulsion on the grounds that the board had adhered to any particular procedure or on the basis that the “committee determined that the Board of Management’s decision was reasonable”: rather that the respondents were bound themselves to take all matters into account and decide if expulsion was warranted. Specifically, it was suggested that the committee failed to have regard to its obligations in light of the decision of the Supreme Court in Board of Management of St Molaga’s National School v The Secretary General Department of Education & Others [2010] IESC 57. Secondly, it was argued that the statement that the Chairperson of the Board of Management had stated that the board had full confidence in the principal’s management and administration of the school was extraneous and irrelevant. Thirdly, it was said that the decision failed to set out the reasons for it. In particular, it was argued that the list of a “range of issues” taken into account was not exhaustive, so that the applicant had no way of knowing what other issues affected the decision. Fourthly, it was said that the committee took into account matters which they were not entitled to take into account, specifically “the conflict in the submissions from the parties”. The committee, it was said, appeared to have relied on the fact of the conflict, rather than resolving such conflicts as may have existed. This, it was argued, was irrational.

Held by Allen J that in substance and in terms the decision of the appeals committee of 10th June, 2019 was that the decision of the board of management to permanently exclude the applicant was reasonable. Allen J held that this was the wrong test; the committee ought to have considered and decided whether, in its view, the exclusion of the applicant from school was warranted. Allen J noted that the list of issues taken into account was stated to be non-exhaustive; this necessarily conveyed that other issues had been taken into account and this had the effect that it was impossible to say what considerations the committee took into account, or that the committee did not take irrelevant considerations into account. Allen J held that the fact that the board of management had full confidence in the principal was an irrelevant consideration. Allen J held that the fact that there was a conflict between the mother and the school as to the quality and availability of resources and the ability of the school to understand, anticipate and ameliorate the applicant’s behaviour was not a relevant consideration. Allen J noted that the respondents, the Minister for Education and Skills, Mr McDonogh, Mr Rowley and Ms Casserly, might have decided that it was unnecessary to resolve some or all of the contested issues: but it did not. Allen J held that the respondents were not entitled, in answer to an application by way of judicial review, to make the case that it was unnecessary to resolve the conflict or otherwise to supplement the reasons given in their written decision.

Allen J held that the decision of the second to fourth respondents of 10th June, 2019 must be quashed and the applicant’s appeal remitted to be heard by a newly constituted committee in accordance with law.

Certiorari granted.

JUDGMENT of Mr. Justice Allen delivered on the 13th day of September, 2019

Introduction

1 This is an application by way of judicial review for an order of certiorari quashing a decision of an appeals committee which was appointed pursuant to s. 29 of the Education Act, 1998, rejecting an appeal against a decision of the board of management of a secondary school to permanently exclude a student from the school.

Facts

2 The student is a boy who is sixteen years old. He was diagnosed with autism spectrum disorder at the age of two years and five months. He attended primary school for five years between the age of seven years and twelve years.

3 In 2016 the student's family relocated to the area where the notice party school ( “the school”) is located, specifically because the area had both a primary and a secondary school with dedicated ASD units. Before relocating, the student's mother had visited both schools and had been informed that there would be a place for him in each of them.

4 The student was first enrolled in the primary school for a brief period. The mother took the view that the autism unit in that school was inappropriate for him and his needs, and he was withdrawn from the primary school and home schooled until September, 2016 when he was enrolled in the school.

5 It is accepted that from the outset, and throughout his time in the school, the student's behaviour was challenging. From the mother's perspective, the student struggled in the school which did not have the necessary resources or skills to deal with his disability. From the school's perspective, there was an increasing pattern of unpredictable aggressive behaviour which, notwithstanding concerted efforts, the school was unable to manage.

6 In the 26 months or so during which the student was enrolled in the school, there were over 70 recorded assaults against staff and ten assaults against students. There was daily contact between the mother and the school when she brought and collected her son, and there were 30 formal meetings convened to discuss his behaviour.

7 The event which precipitated the student's expulsion occurred on 14th November, 2018. There is no dispute as to the occurrence or the nature of the incident. The mother describes that the student was particularly distressed and acted out aggressively. The school principal describes that the student threw a water bottle at another student in the ASD classroom. The other student had a shunt in her brain. The water bottle could have hit the other student on the head, and a potential disaster was only averted by the quick intervention of a special needs assistant.

8 Immediately after this incident the mother was sent for and she took the student home. At a meeting on the following day the mother was told that unless she withdrew her son from the school, the principal would recommend to the board of management that he should be expelled. The mother briefly contemplated that she might withdraw her son but having taken advice from the National Council for Special Education decided to fight the proposed exclusion.

9 By letter dated 20th November, 2018 the mother was formally advised of the principal's recommendation to the board of management that the student be expelled:-

“… for continuing breaches of our Code of Behaviour in the form of violence towards other students and staff. The investigation was carried out using all reports written after such incidents and also records of supports/strategies used to accommodate [the student] in [the school]. Under Section 8.9 of our Code of Behaviour [the student] is a serious threat to the health and safety of himself, other students or members of staff.”

10 The mother was provided with copies of all of the records which had been provided to the board of management, which was to meet on 26th November, 2018. The mother was advised that she could attend that meeting, accompanied if she wished by some other person, and would have the opportunity to make written and oral submissions.

11 The board of management met on the evening of 26th November, 2018 and heard from the principal and from the mother. The mother contested the significance and characterisation of seven of the eighty recorded incidents. She indicated that while she did not condone, neither did she condemn her son's behaviour. She did say that she was shocked by it. In broad terms, the mother's case was that the school could and should have done more for the student.

12 By reference only to the uncontested incidents, the board of management decided to “expel the student due to a serious threat to the health and safety of the student, other students and members of staff”, and the mother was advised of the decision by letter dated 27th November, 2018.

13 As required by s. 24 of the Education (Welfare) Act, 2000, the relevant educational welfare officer was notified of the opinion of the school to expel the student, and the reasons for that opinion.

14 Because the school was an Education and Training Board school, there was a right of appeal to the relevant Education and Training Board. The mother availed of that right of appeal, but it was unsuccessful.

15 By notice dated 28th March, 2019 the mother appealed to the Secretary General of the Department of Education and Skills. The Secretary General duly appointed an appeals committee, made up of the second, third and fourth respondents, which met on 8th May, 2019.

16 The substance of the mother's case was that the school could and should have done more for her son. Her case was that the student's behaviour was a manifestation of his disability which had not been recognised and...