Jewish Senior Boys’ School, Salford (Keser Torah) v Secretary Of State for Children, Schools and Families [2008] EWCST 1317(JS) (08 September 2008)

The Managers of the Jewish Senior Boys’ School, Salford
(Keser Torah)
-v-
Secretary of State for Children, Schools and Families

[Proceedings under section 166(5) Education Act 2002]

[2008] 1317.JS

Before

His Honour Judge David Pearl
(President)
Mr David Braybrook
Ms Gillian McGregor

THE DETERMINATION UNDER SECTION 165(2) EDUCATION ACT 2002.

1.	The Jewish Senior Boys’ School (Keser Torah) with premises at 4 New Hall Road, Salford is referred to in the self evaluation form prepared in 2007 for a section 162A independent school inspection as “one of the longest established Boys Schools in the Manchester Jewish Community. It was founded on the principles of providing a solid Jewish education without compromising the need for essential secular studies. The School’s goal is to nurture the best qualities inherent in each pupil and to guide them on the road to maximise their potential as community members.” The self evaluation states that the majority of the school day (approximately 75%) is devoted to Hebrew studies, with the largest portion being occupied by the Talmud. It stated also that approximately 25% of the time within the Hebrew studies comprises learning Chumash (the five books of Moses), Halacha (Jewish law), and a “comprehensive selection of traditional and contemporary moral and ethical texts.” 
2.	The School was inspected by OFSTED on 18th and 19th February 2008, and the result of that inspection was communicated to the proprietor of the School (Keser Charities Ltd) by letter dated 28th April 2008. The letter is signed by Ms Penny Jones, the Deputy Director of the Independent Schools and Schools Organisation Division. The letter states that the inspectors had reported that the independent school standards were not met in relation to the school; and that accordingly “having taken account of the failings under standards 3, 4 and 5 of the Education (Independent School Standards) (England) Regulations as amended, the Secretary of State considers that there is a risk of serious harm to the welfare of pupils at the school.”
3.	The second paragraph of this letter sets out the particular concerns, which can be summarised for present purposes as follows:
•	Lack of appropriate child protection procedures
•	Lack of appropriate appointment and vetting procedures for staff at the school
•	Appropriate health and safety policies and risk assessments are not in place
•	Various failures to meet standards relating to premises and accommodation which give rise to health and safety concerns; in particular not all fire risks have been assessed and fire exits do not easily open
4.	The Secretary of State served on the Appellant both the covering letter and the determination under section 165(2) of the Education Act 2002. Both the Determination and the covering letter state that the Secretary of State had decided to remove the school from the register with effect from 26th May 2008. The letter correctly identified that there was a right of appeal under section 166 to the Care Standards Tribunal “within 28 days of the date on which the determination is served on you.”
5.	The final paragraph of the letter ambiguously states: “Should you choose not to appeal against the determination, the [School] will be removed from the [Register] on 19th May 2008.
6.	It would appear that Mr Gabriel Rothbart, on behalf of the School, contacted the Tribunal by telephone on 12th May 2008 and sought an appeal form. This was sent to him on the same day. The School appealed by way of Appeal Application Form B signed on 25th May 2008 and received by the Tribunal on 29th May 2008.
7.	The first ground of appeal states: “We have been advised that the notice is invalid. Under section 165(2) of the Education Act 2002 ‘the authority may determine that the school is to be removed from the register on such date after the appeal period as the authority may determine.’ The appeal period is 28 days from the date of service of the determination. The determination was served under cover of a letter dated 28th April 2008 but not actually received until 6th May 2008. The Secretary of State determined that the School should be removed from the register on 26th May 2008. On that date, on any view as to the date of service of determination, the appeal period would not have expired on 26th May 2008. The earliest that the appeal period could expire would be 27th May 2008 assuming delivery of the letter on the day after it was written, so the determination to remove the school from the register does not comply with section 165(2)”.
8.	The procedural point remained a live issue during the hearing on 18th July 2008 of the matters relating to section 166(5) Education Act 2002. It was agreed that both parties should provide written submissions on the issue, and at the continuation of the section 166(5) hearing, it was agreed by both Mr P Oldham of Counsel on behalf of the Appellant and Mr J Auburn of Counsel on behalf of the Respondent, that they were content for the Tribunal to reach a final view on this issue without the need for further submissions.
9.	Mr Oldham submits that the decision and notice are defective in two respects. First, both dates on which the Secretary of State has determined that the School should be removed from the register (26th May and 19th May) are too early, and thus the notice and the decision are not compliant with section 165. Secondly, by providing two dates, the decision/notice is internally inconsistent and is therefore not a decision/notice under section 165. Mr Oldham points out that the breach is in the operation of the Secretary of State’s powers under primary legislation. He submits that as the Notice was not served on the proprietor until 6th May (and there is no dispute on this) the Secretary of State could not lawfully determine to close the School until 3rd June 2008. In effect it is submitted that the underlying decision of the Secretary of State is unlawful. 
10.	We have to say that we do not agree with Mr Oldham on this point. The defect, for such it is, is in our view a procedural defect both in relation to setting out the incorrect date for closure in the Determination and in relation to the internal inconsistency within the covering letter. 
11.	Section 165(2) of the Act states that “if the registration authority considers that there is a risk of serious harm to the welfare of pupils at the school, the authority may determine that the school is to be removed from the register on such date after the appeal period as the authority may determine.” The fact that a mistake was made as to the appeal period does not in our opinion make the underlying decision of the Secretary of State a nullity.
12.	As an alternative submission, it is submitted that if the Tribunal considers that the argument raises a procedural issue, then the approach as set out in R v IAT exparte Jeyeanthan; Ravichandran v SSHD [2000] 1 WLR 354 should lead to the same result. It is submitted that there has not been substantial compliance; “the Secretary of State cannot substantially comply with section 165(2) by providing two contradictory dates for proposed closure neither of which is permissible within the terms of section 165.” Mr Oldham concludes that pursuant to section 167(3)(b), the Tribunal should revoke the determination or purported determination of 28th April 2008.
13.	The Respondent, in his written submission, rejects the argument that the error in the dates makes the entire determination a nullity. Mr Auburn submits that the error has caused no prejudice to the Appellant, and that Parliament could not have intended that the protection of children from the risk of serious harm would turn on “such a technical matter.” It is submitted by Mr Auburn that “the effect which Parliament would have intended was that a defective date in a Determination would not operate to limit an Appellant’s time for appealing to less than that provided as the statutory minimum time period; and accordingly a closure would not take effect until expiry of the proper statutory minimum time period.” 
14.	In any event, so Mr Auburn submits, although not necessary, the Secretary of State has “now put the technical point beyond any argument by issuing a second notice. The School will have to appeal the second notice or close.”
15.	Mr Auburn submits further that the only practical impact of the Respondent’s error regarding the date was that the Appellant in fact had more time to appeal than it was informed of by the Respondent; and that in any event the School has in fact appealed within the relevant time limit, however that time limit is calculated.
16.	Mr Auburn drew to our attention the case of R v Soneji [2006] 1 AC 340, and in particular the speeches of Lord Steyn and Lord Rodger. Lord Steyn said: “…the emphasis ought to be on the consequences of non-compliance, and posing the question whether parliament can fairly be taken to have intended total invalidity.”
17.	We agree with Mr Auburn, and do not read Jeyeanthan as in any way inconsistent to the approach adopted by the House of Lords in Soneji.  Indeed, in Jeyeanthan it is noted that there will be few instances where the procedural requirements are considered so fundamental that a failure makes everything that happens thereafter irreversibly a nullity. We not consider that the defect in this case falls into that rare category, and we adopt the approach taken by Mr Auburn that Parliament could not possibly have intended that an error by the Secretary of State in calculating the statutory minimum appeal period would render a Determination of no effect, rather than simply affecting whether or not an appeal was validly lodged in time.
18.	 Our decision on this aspect of the case was communicated to the parties on August 18th 2008.

PROCEEDINGS UNDER SECTION 166(5) EDUCATION ACT 2002

19.	The Respondent sought an Order under s 166(5) of the Education Act 2002 that the Appellant is to be regarded as not registered for the purposes of s 159 of the Act until the Tribunal determines the appeal under s 167 (or revokes the order before so determining the appeal). The Application stated that the Secretary of State took the view that that the risks identified are sufficiently serious that matters cannot be allowed to continue until the hearing of the appeal, but that the pupils’ welfare should be safeguarded in the meantime to prevent any such risk eventuating. 
20.	The Respondent’s application was served on the Tribunal in accordance with Schedule 9 paragraph 7(2) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.
21.	By email received after the closure of the office on 16th July 2008, the Respondent withdrew its application for an Order under s 166(5) and sought the vacation of the hearing scheduled for 18th July 2008. The President refused the vacation of the hearing.
22.	At the hearing on 18th July 2008, after hearing submissions from both Counsel for the Secretary of State and Counsel for the Appellant, the Tribunal held that it had the statutory power, on its own motion, to form a view that “there is a risk of serious harm occurring to the welfare of pupils before the determination of the appeal” and by order to provide that the school is to be regarded as not registered for the purposes of s 159. The Tribunal disagreed with the view expressed by Mr Oldham on behalf of the Appellant that it did not have the power on its own motion to make an Order under section 166(5). He submitted that if the enforcement authority changed its mind, and decided to withdraw the application for an immediate closure, then the Tribunal ceased to have any powers. He referred us to Article 6 of the European Convention on Human Rights. 
23.	Mr Auburn on behalf of the Secretary of State said that it was the view of the Secretary of State that the Tribunal did have the power on its own motion to consider an emergency closure, even though the Secretary of State in this case had withdrawn his application
24.	We decided that we do have this power. The legislation is perfectly clear on the point. Section 166(5) states “…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, it may by order provide that the school is to be regarded as not registered…until the tribunal determines the appeal.” No restriction is imposed on the tribunal’s jurisdiction, and Schedule 9 of the Tribunal Regulations reflects the statutory power in paragraph 1(11)(12) and (13) which are predicated on the Tribunal considering section 166(5) issues where the Respondent has not made an application. 
25.	In the light of this holding, the Tribunal heard evidence from Mr G Derby, Ms P Jones on behalf of the Secretary of State, and Mr R Thomashev on behalf of the School. After consideration of their evidence the Tribunal decided that it would postpone further consideration of whether to make an Order under s 166(5) pending a further report by Mr Derby, and to resume consideration of the matter on 18th August 2008. 
26.	Mr Derby was asked to consider issues relating to implementation, in the light of the documentary material which had been submitted by the Appellant prior to the hearing, the additional documentation submitted on the day of the hearing, and the answers given by Mr Thomashev in the witness box to questions put to him by Counsel for both sides, and by Tribunal panellists.
27.	The Tribunal reconvened on 18th August 2008, having had the benefit of reading the further report of Mr Derby. It was unfortunate that the managers had brought forward the Summer break as a consequence of the rebuilding and refurbishing so that when Mr Derby visited the school the pupils were on vacation. He was therefore unable to provide the Tribunal with clear guidance on the implementation of the procedures that had been put in place by Mr Thomashev and the impact that these procedures had had on the practices within the school. His overall judgement was that welfare, health and safety issues were still inadequate. 
28.	The question that we had to decide was whether the inadequacy amounted to a “risk of serious harm”. In reaching a view on this matter, the Tribunal made a site visit to the school, and heard not only from Mr Derby but also from Mr Thomashev.
29.	Mr Oldham urged us not to exercise our powers under section 166(5). He advanced the general point that as the Secretary of State had withdrawn its application, we should pay considerable weight to that approach. He submitted that there was no evidence that the Secretary of State thinks there is a risk of serious harm. 
30.	He pointed to the evidence of Mr Thomashev who has worked hard in a short time span to correct the defects that had been highlighted in the recent reports. Mr Oldham submitted that Mr Thomashev has exhibited a willingness to learn, and that he understands what needs to be done. It was said that it may be that he has initially been reactive, but that now he was much more proactive. In terms of specifics, it was submitted that the risks as set out in the Fire Assessment had been tackled, and a great deal of progress had been made in Child Protection.
31.	He submitted that the approach of the new regime of Mr Thomashev would filter down and that we should be content that there is no risk of serious harm.
32.	After careful consideration of the new documentary evidence, and on evaluating the evidence of Mr Thomashev, and after our site visit, we have concluded that this is not a case were we should exercise our discretionary powers under section 166(5). In making this decision, we are aware of the consequences of an immediate closure and its impact on the pupils, the staff and the community at large. We have evaluated the immediacy of the risk, and have reached the conclusion that the school should continue to function; and that the matter should now proceed to a final hearing in December.
33.	There will be a Directions Hearing to be conducted by telephone on September 12th 2008 at 10.00am when directions will be made to ensure appropriate preparation for the hearing. In particular, the Tribunal would hope that Mr Derby will be able to make a further visit to the school in November when the pupils are present and when he can evaluate the implementation and the impact of the new procedures put in place by Mr Thomashev.

ORDER ACCORDINGLY

His Honour Judge David Pearl
(President)
Mr David Braybrook
Ms Gillian McGregor

8th September 2008