Thomas Francis Academy v Secretary of State [2007] EWCST 939(IS) (16 July 2007) 

Thomas Francis Academy
-v-
Secretary of State
[2007] 939.IS

-Before-

His Honour Judge David Pearl
(President)
Mr David Braybrook
Mrs Judith A Wade

PRELIMINARY ISSUE: POWER OF THE TRIBUNAL IN SECTION 166 EDUCATION ACT 2002 APPEALS

1.	The Tribunal held a Preliminary Hearing in accordance with Regulation 6 on July 9th 2007 in order to deal with Directions and to provide a Ruling in relation to whether an appeal brought under section 166 of the Education Act 2002 is a “supervisory review” of the Secretary of State’s exercise of discretion or an appeal on the merits. 
2.	Mr J Hyam of Counsel instructed by the Treasury Solicitor appeared on behalf of the Respondent and Miss P Ferreira supported by her colleagues appeared on behalf of the Appellant. 
3.	Mr Hyam submitted that an appeal under section 166 is a “supervisory review” and that in consequence, post-decision evidence is neither relevant nor admissible when the Tribunal hears an appeal from a decision taken by the registration authority under section 165 to remove a school from the Register.
4.	Mr Hyam concedes that there is no provision in any Regulations similar to Regulation 13 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 which deals with appeals that may be brought by a person under Regulation 12 of those Regulations in respect of whom a direction has been given under section 142 of the Act (commonly referred to as appeals from being placed on the “List 99”). Regulation 13 expressly excludes the Tribunal in those cases from considering 
(a)	any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made, or
(b)	any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to revoke or vary a direction was given.
5.	The case law of the Care Standards Tribunal that has considered section 142 cases has made clear that if there are post-decision facts, then those facts are not justifiable before the Tribunal and that it may be appropriate for the matter to return to the Secretary of State for a review (See S v Secretary of State [2002] 78 PC; Catherine Osliffe v Secretary of State [2005] 550 PT; FH v Secretary of State [2005] 552 PT).
6.	Mr Hyam sought to persuade the Tribunal that, although there is no equivalent provision to Regulation 13 in section 166 appeals, the powers of the Tribunal in section 166 appeals should be limited in the same way. He submitted that what is under “appeal” is a “determination” under section 165 to remove the school from the register, and the powers of the Tribunal are limited to revoking the determination outright, revoking the determination and imposing a lesser sanction which the Secretary of State could have made on the same evidence, or upholding the determination.
7.	In support, Mr Hyam drew our attention to two specific provisions of the Education Act 2002 where post-decision facts are clearly relevant when the matter comes before the Tribunal. 
8.	The first of these is the appeal against a refusal under section 165(10) to vary or revoke an order under section 165(8). This deals with cases where a proprietor of a school has been ordered to do one or more of a number of specified things, and he has applied to the Secretary of State, unsuccessfully, for the Order to be varied or revoked. Section 167(7) expressly states that the Tribunal, on an appeal in these cases may (b) if in any case it is satisfied that it is appropriate to do so because of any change of circumstances after the making of the order (i) vary the order in such manner as it thinks fit; or (ii) revoke the order.
9.	Secondly, section 166(5) allows a Tribunal to take its own initiative in cases where there is an appeal against a determination under section 165(2) [where the registration authority considers that there is a risk of serious harm] and if at any time the Tribunal considers that there is a risk of serious harm occurring to the welfare of pupils before the determination of the appeal, the Tribunal may by order provide that the school is to be regarded as not registered until the Tribunal determines the appeal.
10.	Mr Hyam submitted that the clear intention of Parliament was to allow a consideration of post-decision facts in section 165(10) and section 165(2) appeals, and that therefore and by implication, for other “appeals” the Tribunal has no jurisdiction to consider post-decision facts. 
11.	He contrasted the limitation of the powers of the Tribunal in section 165 cases with the other areas of jurisdiction that are dealt with by the Tribunal, namely cancellation of registration of childminders and day care providers, and cancellation of registration of care homes, children’s homes and other agencies. 
12.	He might also have added appeals from decisions of the Secretary of State to confirm a person on the PoCA or the PoVA list; where the Tribunal has accepted that it has jurisdiction to consider allegations of misconduct over and above the alleged misconduct that led the employer to dismiss the worker or to that which the Respondent took into account for the purposes of assessing whether the employer reasonably considered the worker to be guilty of misconduct (Sini Joyce v Secretary of State (preliminary hearing) [2006] 813.PVA, [2006] 814 PC).
13.	We find ourselves unable to accept Mr Hyam’s submission. Sections 166 and 167 are clearly designated as “appeal” sections rather than “review” sections. Under s 167(3) when considering an appeal against a determination to remove a school from the register, the Tribunal may uphold the determination or revoke the determination. It also has subsidiary power under s 167(4)(5). 
14.	These powers are similar in scope to the powers available to the Tribunal in its other areas of jurisdiction. In the case of care homes etc, the Tribunal may confirm the decision of the regulator or direct that it shall have no effect (Care Standards Act 2000 s 21(3)). Likewise, in the case of childminders and day care providers, Children Act 1989 s 79M(2) states that on appeal, the Tribunal may (a) confirm the taking of the step or the making of the order (of the Justices) or direct that it shall not have, or shall cease to have effect, and impose, vary or cancel any condition. 
15.	It has long been accepted, and as acknowledged by Mr Hyam, that in these cases, the Tribunal is concerned with a full merits appeal and that it is engaged in a total examination of all the evidence, and can consider evidence subsequent to the decision that is being appealed against (C v OFSTED [2002] 87 EY). This of course may be to the advantage or to the disadvantage of the Appellant depending on the particular facts. 
16.	The approach of the Tribunal in C v OFSTED was expressly approved by Stanley Burnton J in OFSTED v Spicer [2004] EWHC 440 (Admin) [a case on appeal from a Magistrates Order]. The Judge said: “On an appeal the registered person could not be restricted to matters as they were before the Justice without a real risk of, if not actual, injustice that Parliament could not have intended.”
17.	We are of the view that the approach of the Tribunal in C v OFSTED is equally relevant in s 166 appeals. The Tribunal said in that case: “In this area, with a Tribunal containing two lay members because of their expertise in the field, the due deference doctrine should not play …a crucial role. We are engaged in a merits appeal, not a judicial review….we are dealing with the care and welfare of children, and it is only right that post-decision facts should be made available to the Tribunal”.
18.	Mr Hyam did not suggest to us that C v OFSTED was wrongly decided. Rather he attempted to distinguish it on the basis of the powers conferred under the Children Act 1989 (see also Childcare Act 2006 s 74) and the Care Standards Act 2000. We find ourselves unable to agree that there is any distinction. Indeed, the role of the regulator under the Care Standards Act 2000 and the Children Act 1989 (see now Childcare Act 2006) is very similar indeed to the role of the Secretary of State with regard to the regulation of independent schools. There can be no justification as a matter of policy for drawing any distinction between the appeal jurisdiction of the Tribunal when enforcement action is taken, for example, in respect of a day care provider as against independent schools. We believe that a distinction could be made only if there were an express provision in the primary legislation or the delegated legislation. Mr Hyam was unable to take us to any express provision of the kind as set out in Rule 13 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003. 
19.	Accordingly, we are against Mr Hyam on his primary submission. We are agree with his “fall back” position that both the Appellant and the Respondent can rely on post-decision material, and that the appropriate approach would be for the Respondent to conduct a further inspection, and for the Appellant to be at liberty if so advised to comment on the further inspection. Directions have been drafted to provide for this.
20.	Finally, and for the avoidance of doubt, it may be that there are issues in this case relating to the transitional status of this school. We did not hear submissions on the relevance of the transitional provisions, and we invited Mr Hyam to submit further submissions on this aspect of the case if he considered that it would be relevant to the correct disposal of this case.
21.	It is the unanimous decision of the Tribunal that a section 166 appeal is a full merits appeal and that the Tribunal may consider post-decision facts.

ORDER ACCORDINGLY

His Honour Judge David Pearl
(President)
Mr David Braybrook
Mrs Judith A Wade
16 July 2007