8 December 2008

FOURTH SECTION
Application no. 40385/06
by Abdul Hakim ALI
against the United Kingdom
lodged on 12 September 2006

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Abdul Hakim Ali, is a British national who was born in 1987 and lives in Milton Keynes. He is represented before the Court by Ms Julia Thomas of the Children’s Legal Centre, a lawyer practising in Colchester.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant attended The Lord Grey, a maintained secondary (foundation) school (“the school”). On 8 March 2001 a fire was discovered in a waste paper basket in a classroom. The fire brigade took the view that the fire had been started deliberately and the police were informed. The applicant and two other pupils were indentified as being in the vicinity of the classroom at the time the fire was started. The Deputy Head advised the three boys that they should not return to the school until the police investigation was completed. Contrary to the statutory procedure for school exclusions set out in sections 64 – 68 of the School Standards and Framework Act 1998 (“the 1998 Act”) and the Department for Education and Skills Circular 10/99 (“the DfES circular”), no time limit was placed on the applicant’s exclusion.
During this period of exclusion, the school had been sending revision‑based, self-assessing work in mathematics, English and science. On 21 March 2001 the Head Teacher wrote to the applicant’s parents to tell them that he remained excluded from school until 5 April 2001. She offered to provide extra work for the applicant and stated that if his parents so wished, they could write to the Chairman of Governors to discuss the matter with them. This letter did not comply with the 1998 Act and the DfES circular as it failed to advise the applicant’s parents that they had a right of appeal to the Governors of the School. Moreover, the governors also failed in their duty to have a hearing to confirm the exclusion or re-instate the applicant as required under the 1998 Act.
On 25 April 2001 the Deputy Head Teacher wrote to the applicant’s parents to further exclude him until 15 May 2001. The letter was drafted in similar terms to that of 21 March 2001, and for the same reasons it failed to comply with the statutory requirements in the 1998 Act and the DfES circular.
On 8 May 2001 the Personnel and Resourcing Committee of the Governing Body of the school met and were informed that the three pupils suspected of involvement in the fire had been excluded. Contrary to the requirements of the 1998 Act, the Governing Body did not convene a Governor’s Disciplinary Committee or consider either the exclusion of the applicant or whether he should be reinstated.
The applicant was charged with the offence of arson against the school and he entered a not-guilty plea. On 25 May 2001 the police had still not decided whether to prosecute the three boys. The Deputy Head Teacher wrote again to the applicant’s parents. She indicated that as some of the witnesses in the case were students at the school, the applicant and the other two boys could not be permitted to return until the proceedings were concluded. She further indicated that she was making a referral to the access panel for alternative provision for the applicant’s education. Finally, she advised the applicant’s parents that he was being excluded for a further twenty days from 14 May 2001 and that the school would continue to set work as appropriate.
The same day a form referring the applicant to the Local Education Authority (“LEA”) for the provision of alternative education was finalised, although it was not received by the LEA until 8 June 2001.
Under the 1998 Act there was a standard 45 day maximum period for fixed term exclusions. That 45 day period expired on 6 June 2001.
On 18 June 2001, the Crown Prosecution Service notified the applicant’s solicitors that the prosecution had been discontinued on the ground that there was insufficient evidence for there to be a realistic prospect of conviction. The following day the applicant attended court and the proceedings were formally ended. He then went to the school to meet with the Head Teacher, who advised him that she would act to arrange his re‑entry as soon as she received written confirmation of the cessation of criminal proceedings. She received written confirmation on 22 June 2001 and on 3 July 2001 she wrote to the applicant’s parents, inviting them to attend a meeting on 13 July 2001 to facilitate his re-integration.
The LEA’s access panel met on 19 June 2001, unaware that proceedings against the applicant had been discontinued. The panel recommended that the applicant should be provided with tuition by the Pupil Referral Unit until a decision was taken on his future at the school. The Pupil Referral Unit offers part-time education to children who are out of school, generally because they have been excluded, but it is not required to provide the full national curriculum. On 27 June 2001 the LEA’s Flexible Learning Co‑ordinator wrote to the applicant’s parents to inform them that the Pupil Referral Unit would provide tuition until term ended on 20 July 2001 while the school resolved the exclusion issue. The school alleged, and the domestic courts subsequently accepted, that the Flexible Learning Co‑ordinator again contacted the applicant’s parents in early July 2001 and they declined the offer of tuition.
The applicant’s parents did not attend the meeting with the Head Teacher on 13 July 2001.The reason for non-attendance was heavily contested but the judge at first instance concluded that they had chosen to stay away. As a consequence of their non-attendance, the Head Teacher wrote to the applicant’s parents to advise them that she was removing the applicant from the school roll. The school governors and the LEA were also copied in. The applicant’s name remained on the roll until the middle of October 2001 although he was not provided with any education by the school during this period.
When the new term began in September 2001, the applicant did not return to the school. At the end of September 2001, the LEA’s welfare service completed a notification of absence. On 5 October 2001, the LEA wrote to the Head Teacher, stating that she thought that the applicant was in Bangladesh and that a place at the school was not required for him. The judge at first instance accepted that this was wrong: the applicant had not been in Bangladesh and had been at home all along. Neither the school nor the LEA contacted the applicant again before removing his name from the roll, and the applicant and his parent’s were not subsequently informed of the removal.
In mid-October 2001 the applicant’s family met with the Flexible Learning Co-ordinator. At this stage they were unsure about whether they wished the applicant to return to the school. They were advised to decide quickly, and to arrange interviews either at the school or at other schools so that he could resume his education on a full-time basis. From about the third week in October, the applicant’s parents made it clear that he wished to return to the school. On 6 November 2001, the applicant’s father wrote to the Head Teacher formally to request his re-instatement. On 14 November 2001 the Deputy Head Teacher replied, advising that the applicant’s name had been removed from the roll, that his place had been allocated to a student on the waiting list and that the school was now oversubscribed in his year group. The applicant’s father was advised to contact the LEA to find another school place. On 22 January 2002 the applicant was admitted to a new school.
The applicant issued a free-standing human rights claim against the school in the County Court, claiming, inter alia, that his right to education had been violated contrary to Article 2 of Protocol No. 1 to the Convention. The LEA was not a party to the proceedings. The case was transferred to the High Court. In rejecting the application, the judge accepted that the initial exclusion from the school was unlawful, as it was neither permanent nor for a fixed period. He further found that while the subsequent fixed periods of exclusion had been reasonable, there had been a failure to notify the applicant or his parents of the right to make representations to the governing body. The exclusion had become unlawful on the expiry of 45 days and the decision to remove the applicant from the school roll was unlawful because of the failure to make reasonable enquiry to locate him before deciding to remove him. Nevertheless, the judge held that there was no violation of Article 2 of Protocol No.1 as, first, the indefinite period of exclusion was sensible and reasonable in the circumstances; and, secondly, appropriate education facilities remained open to the applicant throughout the period of exclusion but he had elected not to avail himself of them.
On appeal, the Court of Appeal found that the judge had been wrong to suggest that reasonableness could be an answer to a prima facie denial of the right to education. Nevertheless, the court held that the provision of self‑assessing work during the indefinite period of exclusion amounted to sufficient access to education to answer the applicant’s Convention claim. Once the permitted 45 days temporary exclusion had expired, however, the court found that the applicant’s exclusion was incontestably unlawful as it was done in defiance of a statutory provision, rather than being imposed in proper circumstances but in improper form. In such a situation, the school’s continuing offer to provide work did not furnish an answer. The court therefore allowed the appeal in respect of the period from 6 June 2001, when the 45 day period expired, to 22 January 2002, when the applicant started in a new school.
The school was granted leave to appeal to the House of Lords, which unanimously held, albeit for different reasons, that there was no violation of Article 2 of Protocol No. 1. The majority accepted that the applicant’s exclusion from school was at times unlawful, but held that there would be a denial of the Convention right only if there were a systemic failure of the education system which resulted in the applicant’s not having access to a minimum level of education. In this case there was no such failure: the applicant’s parents failed to collect work from the school; the offer of tuition from the Pupil Referral Unit was declined; the applicant’s parents failed to attend the meeting at the school on 13 July 2001; and finally, during the autumn the LEA’s attempts to secure the applicant’s re‑admission to school were thwarted by his parents’ uncertainty. Baroness Hale of Richmond, however, was extremely concerned that the applicant had been let down badly by the school, although she also allowed the appeal because, in view of the judge’s findings, it would not have been just to require the school to pay damages when the applicant’s parents had refused various offers of tuition. Nevertheless she indicated that this was the paradigm of a case in which it would be just and appropriate to grant the applicant a declaration that the school had acted in a way that was incompatible with his rights under Article 2 of Protocol No.1.
B.  Relevant domestic law
Section 10 of the Education Act 1996 (“the 1996 Act”) places on the Secretary of State for the Home Department the general duty of promoting education for the people of England and Wales. This obligation has been largely discharged by LEAs. Pursuant to sections 13 – 18 of the 1996 Act, the LEA has a general responsibility for education and is required to secure that efficient primary and secondary education are available to meet the needs of the population of their area. Section 19(1) of the 1996 Act further provides that each LEA shall make arrangements for the provision of suitable education at school for those children of compulsory school age who, by reason of exclusion, may not otherwise receive suitable education. Moreover, the DfES circular further provides that the LEA should ensure that temporarily excluded pupils are reintegrated where possible and educated meanwhile.
Foundation schools were established under section 20 of the 1998 Act. They have wider self-governing functions than other maintained schools. Pursuant to section 15 of the 1998 Act, LEAs can only intervene in the management of a Foundation school if there has been a serious breakdown in the way the school is managed or governed, or the safety of the pupils or staff is threatened. General responsibility for the conduct of the school lies with the governing body (section 38 of the 1998 Act), while the Head Teacher is responsible for the internal organisation, management and control of the school (section 61 of the 1998 Act and Regulation 5(1) of the Education (School Government) (Terms of Reference) (England) Regulations 2000)
The legislative provisions concerning school exclusions are contained in sections 64 – 68 of the 1998 Act and the DfES circular. Pursuant to these sections, a Head Teacher of a maintained school may exclude a pupil for a fixed period or permanently, but the pupil may not be excluded for one or more fixed period which amount to more than 45 days in one school year. Exclusions should be for the shortest time necessary, and should not be used for, inter alia, punishing pupils for the behaviour of parents. Where a pupil is excluded, the Head Teacher must take reasonable steps to inform relevant persons (in this case, the parents) of the period of exclusion, the reasons for the exclusion, and that he or she may make representations to the governing body. If a pupil is excluded for more than 5 days in any one term, the Head Teacher must inform the LEA and the governing body. The governing body must then consider the circumstances in which the pupil was excluded, any representations made by a relevant person, and, where practical, whether the pupil should be reinstated. The LEA must make arrangements for enabling the relevant person to appeal against any decision of the governing body not to reinstate a pupil who has been permanently excluded.
COMPLAINTS
The applicant complains under Article 2 of Protocol No.1 to the Convention that his exclusion from the school violated his right to an education. He further complains under Article 13 that as the majority of the House of Lords found that he had been unlawfully excluded from school in circumstances which wholly denied the protection afforded to him by domestic law, he had been denied an adequate remedy for a breach of his rights under Article 2 of Protocol No.1.
QUESTIONS TO THE PARTIES

Is Article 2 of Protocol No. 1 applicable to the facts of the case?
If so, did the applicant’s exclusion from school violate his right to an education under Article 2 of Protocol No.1 to the Convention?