The Board of Management of a Special School v The Secretary General of the Department of Education and Skills, Jack Cleary, Christina Casserly and Joseph J. Keane

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 08 June 2021
• Neutral Citation: [2021] IEHC 392
• Docket Number: [Record No. 2021/91 JR]
• Court: High Court
• Date: 08 June 2021

Between

The Board of Management of a Special School

Applicant

and

The Secretary General of the Department of Education and Skills, Jack Cleary, Christina Casserly and Joseph J. Keane

Respondents

and

LS and DL

Notice Parties

[2021] IEHC 392

[Record No. 2021/91 JR]

THE HIGH COURT

Judicial review – Irrationality – Evidence – Applicant seeking to challenge the determination of the appeal committee and the direction issued by the first respondent – Whether the appeal committee acted irrationally in reaching the conclusions that it did

Facts: The applicant, the board of management of a special school (the BOM), on 11th November, 2020, confirmed its decision that a boy should be expelled from the school. The notice parties, the parents of the boy, appealed that decision to the first respondent, the Secretary General of the Department of Education and Skills, pursuant to s. 29 of the Education Act 1998. The Minister for Education and Skills appointed a committee to hear the appeal. In an undated determination, which was furnished to the first respondent on 21st December, 2020, the appeal committee allowed the appeal against the expulsion. On 8th January, 2021, the first respondent issued a direction to the applicant to contact the notice parties to arrange for the boy’s return to school. On 15th February, 2021, the applicant was given leave to proceed by way of judicial review to challenge the determination of the appeal committee and the direction issued by the first respondent. It was submitted on behalf of the applicant that the appeal committee acted in excess of their jurisdiction in directing the applicant to carry out more extensive inquiries prior to making the decision to expel the student; that they acted on irrelevant considerations in reaching that determination and in the alternative, that the appeal committee acted irrationally in reaching the conclusion that the applicant had not carried out sufficient or adequate inquiries as to what other supports or interventions may be available to enable the boy to remain at the school, prior to reaching the decision that he should be expelled from it. The applicant also submitted that even if the determination and recommendation of the appeal committee were upheld, the direction of the first respondent should be struck down, as it did not accurately reflect the true content of the determination and recommendation of the appeal committee.

Held by the High Court (Barr J) that in making its findings based on vague evidence, which included some evidence that was accepted as being factually incorrect, the appeal committee acted irrationally in reaching the conclusions that it did. In addition, the court was satisfied that the appeal committee acted in excess of jurisdiction in taking into account irrelevant matters, in particular, the criticisms of the day to day management of the school as made by Mr Harris, of the charity AsIAm, in his evidence.

Barr J held that, having regard to the infirmities in the determination of the appeal committee, the court must quash its decision and recommendation in this matter and remit the matter back to the Minister for the purpose of establishing a new appeal committee to determine the matter in accordance with law. As the court had decided that it was necessary to quash the determination of the appeal committee, Barr J held that it followed that the direction of the first respondent must also be struck down.

Relief granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 8th day of June, 2021

Introduction

1 The applicant is the board of management of a special school, which provides primary education for children with special needs. There are 29 pupils in the school, with a staff of 31, made up of five teachers, including a principal, a director of education and the remainder are special needs assistants. There is a pupil/assistant ratio of 1:1 in the school. All of the students have autism spectrum disorder, together with other learning and cognitive difficulties.

2 The first named respondent is the Secretary General of the Department of Education and Skills. She has a role to play when the expulsion of a child has been challenged pursuant to s.29 of the Education Act, 1998 (as amended). The extent of her role will be examined later in the judgment. The remaining three notice parties were the members of an appeal committee set up pursuant to s.29 of the Act (hereinafter they shall be referred to collectively as “ the appeal committee”).

3 The notice parties are the parents of a boy of fifteen years of age, who will be referred to hereafter as “C”. He is five feet, three inches in height and weighs 72kg. This will be relevant in relation to the nature of the challenging behaviours exhibited by him, which led to his expulsion from the applicant's school. C has been diagnosed as suffering with Xq28, a chromosomal disorder, the exact aetiology and consequences of which are not clearly understood; autistic spectrum disorder and a moderate to severe developmental delay.

4 The genesis of the present application can be set out in the following way: C has been enrolled in the applicant's school since September 2014. His school reports prior to 2019, do not indicate any particular concerns in relation to challenging behaviour. However, from 2019 onwards, there was a deterioration in his behaviour in school, necessitating his removal from the classroom at break time and during other periods, which were subsequently extended to permanent removal from the class. During this time, he received 1:1 attention from an SNA, acting under the instruction of the class teacher.

5 C's behaviour further deteriorated, necessitating a 2:1 SNA/student ratio. A meeting was held on 6th March, 2020, where the difficulties posed by his challenging behaviour, was discussed with the notice parties and other people involved in his care.

6 The school was closed from March 2020 until 2nd September, 2020 due to the lockdown imposed as a result of the COVID-19 pandemic. Initially, on his return to school in September 2020, C was accompanied by a psychologist, who was part of the home support team. He was started on reduced hours in school, of two hours' duration on 2nd September; three hours on 3rd September and four hours on 4th September. These days passed off without incident.

7 Unfortunately, in the period 7th September, 2020 to 18th September, 2020, C engaged in serious challenging behaviours, which resulted in a number of assaults to members of staff, together with incidents of self-harm to C and damage to school property. These events will be described in greater detail later in the judgment. A number of crisis meetings were held, but no solution was found. As a result of the events, the principal of the applicant school, wrote a report in which she proposed to the board of management that C should be expelled from the school, as his continued presence therein constituted a serious risk to the health and safety of other students, to staff, to C himself and to school property.

8 The notice parties were put on notice of the principal's proposal. A hearing was held before the board of management of the applicant on 29th September, 2020. Due to that meeting not being quorate, a further expulsion hearing was heard before the BOM on 5th October, 2020. Again, the notice parties and various stakeholders in the care of C, were present at the meeting. At the conclusion of that meeting, the BOM reached the decision that, having regard to the serious nature of the matters and the risk posed to the safety of persons using the school, including C, the appropriate course to take was that he should be expelled. The BOM was satisfied that the school had tried a series of interventions and believed that all avenues to find a solution had been exhausted.

9 Under the Education (Welfare) Act, 2000, the Education Welfare Officer was notified of the decision. Under that Act, it is necessary for a decision to expel a student to be reconfirmed by the BOM after consultation with the Education Welfare Officer and after a designated period of time. On 11th November, 2020 the BOM confirmed its decision that C should be expelled from the applicant's school. The notice parties appealed that decision to the first respondent pursuant to s.29 of the 1998 Act. The Minister for Education and Skills appointed a committee to hear the appeal. Each of the parties submitted further documentary evidence for the consideration of the committee. An appeal hearing was held on 9th December, 2020.

10 In an undated determination, which was furnished to the first respondent on 21st December, 2020, the appeal committee allowed the appeal against the expulsion essentially on the basis that they had concluded that all reasonable efforts to enable C to participate in and benefit from education had not been fully exhausted. They made a recommendation that the school should readmit C and remove the expulsion from his record. However, they further noted that the school could suspend C, while they made enquiries as to the availability of other supports and interventions that would permit C's return to the school.

11 On 8th January, 2021, the first respondent issued a direction to the applicant to contact the notice parties to arrange for C's return to school. His direction went on to state: “This direction covers [C's] return to your school. Any other recommendations made by the appeals committee are a matter for the board of management/school to consider.”

12 On 15th February, 2021, the applicant was given leave to proceed by way of judicial review to challenge the determination of the appeal committee and the direction issued by the first respondent. In essence, it was submitted on behalf of the applicant that the appeal committee acted in excess of their jurisdiction in directing the applicant to carry out more extensive...