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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> P, R (on the application of) v Haringey London Borough Council [2008] EWHC 2357 (Admin) (15 September 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2357.html Cite as: [2008] EWHC 2357 (Admin), [2009] ELR 49

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15th September 2008

1. THE DEPUTY JUDGE: In this application for judicial review for which permission was granted in part by Gibbs J on 14 May 2007 and in part by Mummery LJ in the Court of Appeal on 20 February 2008, the Claimant, P, who acts through his mother, seeks judicial review of the decision by the London Borough of Haringey to reject as invalid an attempt by him to appeal the decision by his school, confirmed by the school governors on 11th September 2006, to exclude him permanently from the school. At the time this represented a second permanent exclusion and would have had significant implications on the question of parental choice under the School Frameworks Act. As matters have moved on and for reasons which I need not go into at this stage, this case has taken some 2 years to get to a hearing. The Claimant is no longer of mandatory school age but the issue of the appeal is still live because a challenge to the exclusion could have significant implications for his future education, in particular his application in due course for tertiary education since he is currently looking to deal with A Levels having recently sat his GCSEs.
2. The Claimant was a minor at the time of the decision. He was excluded from his school in the London Borough of Haringey on 24 May 2006. On P's behalf, his mother appealed the headteacher's decision to exclude him to the Governors Disciplinary Committee and, after an adjournment to allow for further time, the appeal was convened on 11th September 2006. The governors determined to confirm the decision of the headteacher and sought to send a letter to the Claimant's mother, dated 12 September 2006, which appears to have been posted the following day and which notified P of the Governors' decision and of the right to appeal to the Independent Appeal Panel within fifteen school days, which the notice purported to specify meant the appeal had to be lodged no later than 4 October 2006.
3. The letter of 12 September was addressed to P's mother by the school, sent on behalf of the governors by the clerk. The letter said, so far as is material, as follows:

"After careful consideration of all the available evidence, the Committee determined that the headteacher did act appropriately in permanent excluding [P] from the school and they therefore uphold the headteacher's decision.

The Committee upheld the permanent exclusion for the following reasons:

i. That [P] carried out a vicious attack on a vulnerable student and kicked and punched that student when he was lying on the ground was clearly supported by the evidence.

ii. The incident had been properly investigated.

iii. This is a very serious offence and in clear breach of the school's stated policy.

iv. The school has put a lot of effort into finding and offering the appropriate level of support and help for [P] and has properly reviewed his SEN statement.

v. The Governors' overriding responsibility is to ensure the welfare and safety of all pupils and staff, and Government guidelines state that an incident such as this constitutes exceptional grounds for permanent exclusion.

You have the right to appeal against this decision. If you wish to do so, please notify: [and it then, I interpose, gave an address for the head of Council team Members Services, the London Borough of Haringey.]

You must set out the reasons for your appeal in writing by no later Wednesday 4 October 2006. If you have not lodged an appeal by Wednesday 4 October 2006 your right to appeal will lapse".

The letter then went on to explain, in summary form, how the Independent Appeal Panel would be constituted and how matters would proceed. It also indicated what might be done for arrangements for P's current continuation of his education.

4. P's mother says that did not receive the letter of 12 September, either within a few days or at all, although she had been told by the clerk to the governors to expect something to be sent to her within 24 hours of the decision of the governors. What she undoubtedly did receive was a letter dated 20 September, not from the school but from Marie Baker, the Pupil Placement Officer in the London Borough of Haringey's Social Inclusion Team. This letter referred to the fact that the School Discipline Committee meeting held on 11th September "has upheld the Headteacher's decision to permanently exclude your child." Although it did not repeat or summarise the reasons which were given in the letter of 12 September from the school, it did inform the Claimant that there was a right to appeal to an independent panel. It gave the same address for the appeal, that is the head of the Council team Members Services and then went on to say:

"You must:

1. Give the reasons for your appeal in writing.

2. Do this within 15 school days after you receive notification of the decision made by the School Discipline Committee. No appeal can be accepted after this deadline.

The last date on which you can lodge notice of the appeal is 4 October 2006. If you have not lodged an appeal by 4 October 2006, your right to appeal will lapse."

It then went on to deal with certain other arrangements and contacts in case further information or support was needed.

5. The Claimant's mother received this letter on 22 September 2006 and she immediately contacted a Mr Gerry German of the Community Empowerment Network who has experience of exclusion appeals, and she arranged to meet him on 27th September 2006 when they discussed the grounds of appeal against the exclusion and he agreed to provide a notice of appeal to the Council on P's behalf. Copies of his diary have been exhibited to his witness statement which record that he saw P's mother on the 27th and posted notice of appeal on the following day. That notice of appeal which was posted on 28th did not reach the London Borough Haringey.
6. Following a suggestion by by Mr German, P's mother telephoned the Council after her meeting with Mr German on 27^th September to say there would be an appeal and a notice would be sent. Although the Council was on notice that an appeal would be received, the question here is not whether they were on notice in a general fashion but whether the Council in fact received a notice of appeal validity within the relevant time. It is not suggested that the telephone call was sufficient to trigger the appeal process.
7. On 6 October the London Borough of Haringey telephoned the Claimant's mother and told her that no appeal had been received. By exchange of e-mails Mr German confirmed that the appeal had been sent and that there might have been a problem with the London Borough of Haringey's internal post. What he did, having been told that it had not been received, was that he sent the appeal again by e-mail on 6 October 2006 in the evening. A copy of that e-mail has been made available. The e-mail was sent at 21.08 on 6 October and it said this. It was sent to Marie Baker:

"Ms Baker.

I have just been informed by [P's mother], that the grounds of appeal have not been received by you, as required in your letter to [P's mother] dated 20 September 2006.

I attach a copy of the letter I sent to you with a CEN Compliment Slip, on 28th September 2006, the day after my meeting at the office with [P's mother] and the day after she left a message with Miss Lynn Teigh to say that the appeal was on its way - the message was noted by [P's mother] as left as 14.16 hours on 27th September.

I am perplexed by its non-receipt by your office.

I trust that in all the circumstances the grounds of appeal can be reinstated."

8. The Council points out, unsurprisingly, that at that time 6 October, after 9 p.m. on a Friday evening, the Council offices were closed and officers did not open the e-mail until the following working day, which was Monday morning. I have a witness statement from Marie Baker who explains what happened from the Council's perspective:

"5. On 27th September the Claimant's mother telephoned the Council's Admission Service and spoke to Miss Lynn Teigh and left a message to the effect that she would be appealing in writing against the exclusion. The telephone call with Miss Lynn Teigh was not treated as a valid appeal as it was not made in accordance with the letter from Janet Gibson, dated 12 September 2006, nor my letter dated 20 September 2006. A telephone call indicating an intention to appeal is not treated as a valid appeal by the local authority.

6. I did not hear anything further on this matter until I opened an e-mail on Monday, 9 October 2006, which was sent by Mr Gerry German, the Claimant's representative, on Friday, 6 October 2006 at 21.08. A copy of the e-mail and attachment is contained at bundle 205... Despite being informed in the above two letters that an appeal should be made in writing to Member Services, Mr German e-mailed myself with a document he stated was sent on 28 September 2006. Mr German stated that this document, the grounds of appeal, were sent to myself. This document was never received by me in the post and I understand has never been received by Member Services either. The first time I had sight of it was in the attachment to the e-mail dated 6 October which I opened on 9 October 2006.

7. I contacted Member Services to clarify whether the appeal had been received. I was informed by Member Services on 9 October 2006 at 09.17 am that the appeal not been received in the post."

9. The Council's internal e-mails for the 9 October, sent at 9.16 am and 9.17 am show that Council staff found and opened the e-mail from Mr German first thing on the Monday morning and but that they had not seen this notice of appeal until that time.
10. There then followed lengthy correspondence by e-mail with Mr German and then subsequently with the Claimant's legal representatives and the Council, seeking to persuade the Council not to treat the appeal as out of time, either because it was received within time or because the Claimant contended the Council had a discretion to extend time for appealing and that discretion should be exercised in his favour. These contentions were considered and rejected by the Council, in particular in letters dated 5 December 2006 and 12 December 2006. The Council's position was explained in the letter of 5 December 2006 as follows:

"As the hearing commenced at 5pm on the 11 September, Ms Gibson advises that she took the view that the letter had to be posted within 24 hours of the decision, that is, 7 pm on 12 September 2006. Ms Gibson advises that the letter could therefore have been posted on 13 September 2006 as she would have missed the post on 12 September 2006. In any event, the letter was definitely posted on or before 13 September 2006. Miss Gibson notes that your client received the previous letters posted to her."

On 12 December the Council wrote:

"1. The Clerk to the Governors' Disciplinary Meeting, Janet Gibson, is very experienced and has been clerking exclusion appeals for a number of years. Ms Gibson has clerked numerous exclusion appeals for Alexandra Park School, and is well aware of the requirements, as stated in my letter dated 05 December 2006, to inform the parents of the Governors' decision within one school day of the Hearing. Ms Gibson always posts decision letters by first class post and, therefore, does not retain proof of posting. The letter dated 12 December 2006 was posted by first class post [that should have read 12 September 2006] Should you issue Judicial Review proceedings, then Ms Gibson will be providing a witness statement stating the above, and also referring to the issues raised in my letter of 05 December 2006.

2. I take your point that, in the event of the letter 12 December [again it means September 2006] was actually posted on 13 September the 15 school days would have been exhausted on 06 October 2006. However, your client's appeal was still not received in time.

3. Ms Gibson also makes the point that your client received all the other letters from her and also that your client was informed of the Hearing that a decision letter would be sent 24 hours of the decision being taken."

The letter then deals with regulation 5(6) of the relevant regulations which I will come to in a moment. It is contended that the fact that it had become clear that the date given in the notices of 4 October was incorrect did not render the notices defective or the process unlawful.

11. After dealing with the question of who the appeal should have been sent to (a point which is no longer taken by the Council) the letter then continued:

"7. The appeal written by Mr German was e-mailed to Marie Baker on Friday, 06 October 2006, at 21.08 pm. In that e-mail, Mr German states that he also sent the appeal to Marie Baker on 28 September 2006. This has never been received. Marie Baker is the Pupil Placement Officer. At no time was the Appeal sent to Members Services as required. I again refer you to my letter dated 28 November 2006, page 4, fourth bullet point. Mr German is well known to Members' Services and is well aware of the correct procedure and address for lodging appeals.

The Local Authority therefore takes the view as follows:-

• The Governing Body's decision letter dated 12 September 2006 was sent by first class post on or before 13 September 2006. Janet Gibson will be providing a witness statement to this effect if necessary.

• It is not accepted that there was a problem with Royal Mail.

• The first time any appeal was received by the Local Authority was Mr German's e-mail on Friday, 06 October 2006 at 21.08 pm.

• This appeal is defective as it was not sent to the required address as notified in the letter 12 September 2006 and in Marie Baker's letter dated 20 September 2006.

Even if the notice of appeal was not defective it was still not received in time."

The letter then refers to regulation 6(2) which I will come to in a moment:

"This appeal is deemed to have been received on Sunday 08 October 2006. I refer you to Part 6, Rule 6.7 of the Civil Procedure Rules - Deemed Service. Service of a documents by electronic means is deemed to have been served on the 2nd day after the day on which it was transmitted. Service of the e-mail from Mr German is therefore deemed to have taken effect on Sunday, 08 October 2006."

That latter point regarding CPR and electronic delivery does not appear in the arguments before me.

12. Thereafter the position of the parties was well-defined. The judicial review was launched on behalf of the Claimant by his mother on 20 December 2006. Acknowledgment of the service was served on 11th January, with summary grounds for contesting the claim which substantially reflect the submissions that have been made to me today. The process of obtaining permission was somewhat drawn out and ultimately was granted by Mummery LJ, who gave permission for the final ground of challenge which had not been granted by Gibbs J on 14 May. The matter now comes before me with permission to argue all the points in the grounds of claim.

The issues

13. The judicial review raises a number of issues, not all of which I will need to deal with in the course of this judgment. The issues can be formulated as follows: first, were the notices defective by reason of their reference to the date for appealing being 4 October 2006? Secondly, if not, whether notice of appeal was given so as to validly institute appeal proceedings, at least by the giving of the e-mail of 6 October. Thirdly, whether the first letter of 12 September was received by P's mother so the time for giving notice of appeal expired on 6 October 2006 or whether it was only the second letter of 20 September which was received (pointing to a later date for expiry of the right to appeal). This raises the question whether the receipt of the letter and thus the calculation of the time for appealing is a question of precedent fact for this court or a matter for the judgment of the local education authority which can only be challenged on Wednesbury grounds. There then follow other grounds of challenge, which include the existence of a discretion to extend time for appealing, which I will not have to deal with and in respect of which I did not call upon Mr Hyams.

Legal framework

14. Section 52 of the Education Act 2002 deals with the exclusion of pupils, and confers power on a headteacher of a maintained school to exclude a pupil either for a fixed period or permanently. It also provides in section 52(3) for the making of regulations, for requiring prescribed persons (such as parents) to be given prescribed information relating to any exclusion, requiring the responsible body in prescribed cases to consider whether the pupil should be reinstated, and (most relevant here) :

"(c) requiring the Local Education Authority to make arrangements for enabling a prescribed person to appeal, in any prescribed case, to a panel constituted in accordance with the regulations against any decision of the responsible body not to reinstate a pupil, and.

(d) as to the procedure on appeals. ...."

15. The regulations which were made under section 52(3) and which govern the issues in this case are the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 S.I. 3178. Regulation 5 provides:

"(5) The head teacher shall comply with any direction of the governing body for the reinstatement of a pupil who has been excluded from the school.

(6) If the governing body decide that the pupil should not be reinstated, they shall forthwith -

(a) inform the relevant person, the head teacher and the local education authority of their decision, and (b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matter -

(i) the reasons for the decision.

(ii) his right to appeal against the decision.

(iii) the person to whom he should give any notice of appeal

(iv) that any notice of appeal must contain the grounds of appeal, and

(v) the last date on which an appeal may be made.

....

(11) The notice in writing referred to in paragraph (6)(b) may be given either—

(a) by delivering it to the relevant person's last known address, or

(b) by properly addressing, pre-paying and sending by first class post to the relevant person's last known address a letter containing the notice."

Regulation 6 provides:

"Appeals against permanent exclusion of pupils

(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under regulation 5 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority.

(2) The Schedule to these Regulations has effect in relation to the making and hearing of appeals pursuant to arrangements made under paragraph (1); and in paragraphs (3) to (6) 'appeal panel' means an paragraph 2 of the Schedule."

The relevant provisions of the Schedule to the Regulations provide:

"1 (1) No appeal under regulation 6(1) against a decision not to reinstate a pupil may be made after the fifteenth school day after the day on which the relevant person is given notice in writing under regulation 5(6)(b). ..."

"6. Procedure on an appeal.

In the following provisions of this Schedule 'appeal' means an appeal under regulation 6(1) and 'the closing date for appeals' means the fifteenth school day after the day on which the appeal is lodged."

"7. An appeal shall be by notice in writing setting out the grounds on which it is made."

"15. (1) Subject to paragraphs 7 and 14, all matters relating to the procedure on appeals shall be determined by the local education authority.

(2) The local education authority shall, in setting any time limits in connection with appeals, have regard to the desirability of securing that appeals are disposed of without delay."

"16. In paragraph 1(2) and 14 "working day" means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday within the meaning of the Banking and Financial Dealings Act 1971."

(1) Were the notices defective?

16. I deal firstly with the question of whether the notices were defective by virtue of the failure to state the correct end date for the appeal. It is undoubtedly important in cases such as this, where notices are being given of serious matters such as the exclusion of pupils from school, that notices should be given in terms sufficient to draw to the attention of the pupil and the pupil's parents or guardians what the key requirements should be. Such notices are usually given to ordinary people without legal training, and therefore it is not to be expected that parents and pupils are going to have the level of expertise which allows them to search through the regulations and find what the relevant requirements are. Indeed, had they reached these regulations they would have found a degree of conflicting terminology which I will return to in a moment.
17. The letters of 12 and 20 September 2006 both refer to the last date on which the notice of appeal could be lodged as being 4 October. That was undoubtedly incorrect. It is also the case that the letter of 20 September did not set out the reasons which is a formal requirement under regulation 5(6)(b) of the 2002 regulations. However, that is not the point that has been taken today.
18. The context for considering procedural irregularities is the approach which the courts now adopt to procedural irregularities in public law, which is not to look at deceptively clear distinctions between matters which are nullities or which are not nullities, or matters which are mandatory or directory, but to look at broader questions of prejudice and substantial compliance. This approach is marked most clearly in the case of R v The Home Secretary ex parte Jeyeanthan [2000] 1 WLR 354, particularly Lord Woolf MR at pages 359 to 362. I do not need to refer to all of Lord Woolf's judgment, but only the statement of principle at page 362C:

"I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows.

1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question)

2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.

3. If it is not capable of being waived or is not waived then what is the consequence of the non- compliance? (The consequences question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non- compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver."

19. In the present case the formal requirements of the notice to be given by the governors is set out in regulations 5(6)(b), paragraphs (i) to (v). They include at (v) "the last date on which an appeal may be made." The words are apparently mandatory since the regulation speaks of the duty being on the governing body to give notice and the terminology used is "shall forthwith". However, applying the more flexible approach advocated by Lord Woolf to questions of legal validity, it appears to me that, on the facts of this particular case, and in particular because the date which was given was earlier than the true final date for appealing, that there was substantial compliance and I should not treat these notices in substance as invalid. Whether the first letter was received in time is an entirely different matter and I will return to it in due course. The notices, although defective, are not so defective as not to comply substantially with the legal requirement of notifying the Claimant of his right to appeal and are not invalid. Considering the facts, and the absence of any waiver, the consequences which flow from the defective are not critical in this case. If, however, the notices had been given in a form which had misled P's mother into thinking that she had more time to appeal than in fact she had, then the position might have been different.
20. In this context, where these important notices are given to parents, to pupils and to other persons without legal training other defects may well support a finding of invalidity. However, because in this case no significant prejudice flowed from the failure to state 6 October rather than 4 October, and P's mother thought that she was working to 4 October in any event, it seems to me that the notices were in substance valid on the basis explained by Lord Woolf. Therefore I reject the ground of challenge based on invalidity of the notices of the Governors' decision.

(2) Was the e-mailed notice of appeal of 6 October sufficient to commence the appeal?

(a) Time for appealing - "fifteen school days"

21. On the basis that the letter of 12 September was a valid notice and had been received, the next question is whether the e-mail to the Council of 6 October 2006 sent at 9.08 pm was sufficient to trigger an appeal. If that is the case then, regardless of the question of receipt of that letter by P, there is no question as to the valid commencement of the appeal. Receipt by the Council of the notice of appeal by e-mail sent by Mr German just after 9 p.m. was unquestionably outside the Council's working hours and sent at a time when it was most unlikely to be opened and read until after the weekend. In fact this was what happened and the notice was not actually seen by Council officers until the morning of 9 October. Clearly the e-mail was read shortly after the Council offices opened on the Monday, having regard to the time of the internal e-mails I have mentioned.
22. Mr Rawlings for the Claimant submits to me that a notice given after normal working hours is nonetheless valid. He submits, first, that the statutory wording used refers to the governors' notice specifying the last date and not limiting it to any time within the last day. He says that the giving of the last date, which includes all the hours of that day, rather than any period of time within it, confers the greatest degree of certainty on the interpretation of this provision. Secondly, Mr Rawlings says there is no requirement in the Regulations that it should be received within any specific part of that day. That is, in fact, part of his first argument. Thirdly, he says neither of the letters sent to P specified any time of day: they only stated that the appeal should be received by the last date specified, namely 4 October. He says that this does not undermine the purposes of the fifteen day period in the Regulations, which is to ensure that there is generally a swift procedure which is required both in the interest of the pupil whose future is affected and administration of the school which may have to make different arrangements depending on whether there is an appeal and whether the pupil is permanently excluded. He submits there are occasions when fifteen school days inevitably means much longer than fifteen actual days. For example, if the governors' notice of decision were not given until just before the summer holidays, the period would be likely to run from July to September and similarly for other holidays periods. He says Parliament clearly did not intend the fifteen days to equate to the same period of actual time in all cases but to be more of a discipline to prevent late claims coming in at any stage.
23. Mr Hyams for the Council argued to the contrary as follows. Although he acknowledged there were difficulties in finding consistency of timing within the concept of school working days, for reasons I will come to in a moment, he says the concept of school days encompasses the notion that the school day is not a full, 24-hour, day but only a number of hours comprising the school working day. He accepts there is no definition of "school day" within the Regulations and, was unable to point me to any relevant definition. The best he was able to identify were the references to "school year" and to "school sessions" found in the Education (School Day and School Year)(England) Regulations 1999 S.I. No. 3181. In unhelpful fashion, these set of regulations apparently dealing with the school day does not actually define what is meant by a "school day". It defines "school", "school year" and then, in regulation 3, notes that the school day should be divided into two sessions separately by a break in the middle of the day. In the absence of a helpful definition, I do not find those regulations helpful in construing the 2002 Exclusion Regulations.
24. The form of the notice of appeal is not in question here, but only the question of the giving of that notice. Mr Hyams argues, with some force, that the concept of the valid appeal is predicated upon receipt of a valid notice of appeal. He draws my attention to the use of the word "lodge", which appears in paragraph 6 of the schedule which I have already quoted. He says that I should also pay attention to the use of the word "give" in regulation 5(6)(b). He acknowledges that inconsistent terminology has been used in the Regulations because in paragraph 1(1) of the Schedule, which is the governing provision for making appeals, the verb used is "made". Similarly, in regulation 7 it is required that an appeal should be by notice in writing "setting out the grounds on which it is made."
25. In view of that inconsistency in the Regulations, Mr Hyams submits that I should prefer an approach based on receipt by the local authority because that is administratively certain and a local authority cannot expected to deal with such matters unless it knows it has received (or been given) them. Mr Hyams' approach, in fact, turns not simply on the fact of receipt, or giving, but on knowledge of receipt. That is a superficially attractive argument but for reasons I will explain in a moment, I do not consider that it is correct.
26. Mr Hyams agreed that the concept of "school days" was not a simple one and whilst he agreed with Mr Rawlings that it meant working days on which schools were open, excluding, naturally, Bank Holidays, school holidays and the like, he nonetheless pointed out that schools were not generally open all day and that the school day was therefore of limited duration. This limited duration should also qualify the meaning of "school day" within the Regulation,
27. However, it would be extraordinary to define the time for appealing by reference to the opening hours of a particular school. Not only do opening hours vary from school to school but may vary even within an individual school depending on the time of year or the day of week. Moreover, since the notice of appeal is not required to be given to the school but given to the education authority there is even less justification for referring to school opening hours. Mr Hyams, faced with this difficulties, then argued that in fact the since the appeal was made by giving the notice to the Council, the time should be defined by he described as the "Council's business hours". He said that should not be too difficult to ascertain because there is only one Council and he said that it was for the appellant to satisfy himself as to whether the Council offices were open at the time the notice of appeal was sent. He says, contrary to Mr Rawlings' argument, that is what confers the greatest certainty. He relied on the use of the word "lodge" in paragraph 6 of the Schedule to the Regulations (which is also the term used by the Secretary of State's guidance to which the LEA must have regard in accordance with the Regulations). He said this certainty, produced by his interpretation of the Regulations, assists with securing the necessary urgency in this appeal process. In that context, he did not disagree with Mr Rawlings' submission that fifteen school days could lead to a greater number of actual days in the calculation which varied considerably depending upon the time of the year perhaps from as little as 19 to 20 days within normal scope of a term to perhaps 2 months if notice of the exclusion decision were given before the summer holidays.
28. In my judgment, the question must be resolved through the interpretation of the statutory provisions and paragraph 1(1) of the Schedule in particular which places the time limit on appealing. Paragraph 1(1) of the Schedule, as I have already mentioned, refers to the "fifteenth school day" and does not refer to any specific part of that day. It refers to the fact that no appeal may be "made" after that time. Although paragraph 1(3) of the schedule refers to "the giving of a notice in writing to the LEA", this only relates to notices confirming that no exclusion appeal is to be brought. The requirement that the appeal is "made" within the stipulated period does not mean that the appeal must have been brought to the notice of the Council within the time period but that the notice of appeal must at least have been received by the Council.
29. Regulation 5(6)(b) refers to the "giving" of notice in writing, but regulation 5(6)(b) (v) refers to "the last date on which an appeal may be made." The use of "giving" is consistent with paragraph 1(1) since the appeal is made by giving notice to the LEA.
30. Paragraph 6 of the schedule, as I have already noted, refers to the "lodging" of the appeal and paragraph 7 refers to the "making" of the appeal. It may be that this term, which is not defined, makes no difference to what I have already said. However, when considering paragraph 6, which is the only paragraph which refers to "lodging" in this context, I note that it is dealing with setting the timetable for the Independent Appeal Panel "in the following provisions of this schedule", and this does not seem directed to providing definition of the end date for appealing for the purposes of paragraph 1 of the schedule. Whilst undoubtedly it is important to try to achieve consistency in the use of concepts throughout these regulations and in the Schedule in particular, I am inclined to treat the use the verb "lodged" as descriptive of the time from which the appeal process runs and defining the legal requirements for a valid appeal. In any event, "lodging" may be read consistently with "giving" notice to the Council in time as opposed to bringing it to the Council's attention.
31. I accept the common construction of "school days" as meaning working days on which schools are open, excluding weekends, bank and school holidays and the like. However, I do not accept the Council's contention that the term "last date" or "day" for appealing, whether by reference to "school days" or not, limits the time for appealing to any (unspecified in the Regulations) period of time less than the full 24 hours in the day. Although the purpose of the provisions is consistently with other parts of the exclusion appeals process (for example, regulation 5(8)) to ensure a relatively speedy process which is essential to resolve an important issue both for the pupil affected by the exclusion and the school which may have to make alternative arrangements, the application of the fifteen school days requirement is not one which yields a constant period of actual days. It does not in any event answer the question whether there is a cut-off point for appealing before midnight on the last day. The provisions do not refer to any such cut-off point in the day or indicate how such a time might be ascertained with any degree of clarity.
32. In my judgment, where a right of appeal is given by reference to a period of days, the period of days should be given its natural meaning unless there are express provisions which clearly modify it. For example, the times applicable to the lodging of documents in the High Court and Court of Appeal are fixed by the Civil Procedure Rules. Some assistance can be derived from the decision of the Court of Appeal in Okolo v The Secretary of State for the Environment [1997] 4 All ER 242 which concerned the 6 week time limit for challenging compulsory purchase orders under the Acquisition of Land Act 1981. Schiemann LJ referred at p. 247 to the meaning of the 6 week time limit as being in part a "matter of impression" and also noted that the 6 weeks ran until midnight at the end of the 6 week period. This supports the view that, absent an express limitation or definition, time limits should be given their ordinary meaning. A week means a full week, not one ending 6 hours short of a week and, in the case of a day, it means a full day not a period less than 24 hours.
33. Moreover, although power is given to LEAs to make arrangements for appeals under regulation 6(1), that would not permit them to specify the latest time for making the appeal on the last day if it fell short of midnight. The time for appealing is fixed by the Regulations and cannot be cut down by the Council's administrative arrangements for the appeal, which must relate to the arrangements for the appeal once validly made.
34. I have already mentioned the reference to "school days" is not a helpful one in terms of trying to ascertain whether Parliament intended to limit the time for appeal to a certain number of hours within the day. I find the suggestion by the Council that "school days" implies a limitation on the hours of exercise of rights of appeal wholly unpersuasive given the potential for variation in hours from school to school and the fact that the requirement is to give notice to the Council. Nor do I consider that it is tenable to argue that the Regulations limited the making of appeals to the Council's business hours absent any express provision to that effect and the potential for variation even there. Such an approach would not be conducive to certainty in an area where it is important that those concerned to appeal, mainly parents and school children, know as clearly as possible where they stand. Moreover, it lacks any support in the language of the Regulations.
35. I therefore conclude that the Regulations require than the appeal should be made by giving notice to the LEA before midnight on the last day of the fifteenth school day from the notice of the decision under regulation 5(6)(b).

(b) Giving of notice by e-mail on 6 October

36. I then turn to the question as to whether the giving of the notice by e-mail just after 9 pm on Friday 6 October was sufficient for the purposes of the regulations to trigger a valid appeal process. I have already referred to the regulations and to Mr Rawlings' arguments and to the terminology used by the Regulations. In contrast to the modes of giving notice to the pupil of the decision on review which are specified by regulation 5(11), there is no equivalent provision setting out the mode of giving the pupil's notice of appeal.
37. I have already held that an appeal is validly made if the notice is given to the LEA by midnight on the last day for appealing. In the absence of provisions specifically directing the mode of giving notice, I consider that the right to appeal is validity exercised, and the appeal is "made", if notice of appeal is given i.e. delivered in some respect (whether in electronic or documentary form) to the local education authority.
38. The next which arises is whether it the appeal was made by sending the notice by e-mail which was not opened on the last day for appealing but on the following working day. Mr Hyams submits that it is uncertain as to whether that e-mail was actually received until the e-mail system was turned on the Monday. I do not agree. The e-mail received by the Council shows that it was sent at 9.08 pm on 6 October. There appear to have been no difficulties with receipt. There is no evidence of any non-delivery or delayed delivery messages having been sent or received in respect of the e-mail. It is quite clear from Miss Baker's witness statement that the e-mail was found and opened first thing on the following working day, as soon as she turned on her PC or opened the inbox in her mail programme.
39. I accept, in the absence of evidence to the contrary, that that e-mail did reach the Council on Friday 6 October. It seems to me that, in the absence of evidence to the contrary, the clear inference is that that e-mail would have been available to the Council had someone been in the offices logged onto the e-mail system to open it. It seems to me that this is little different from a situation which might arise if a notice had been given by letter which was posted through the Council's letter box but at a time which meant that it which remained untouched and not read until the following Monday morning, when the offices opened again. Such a notice would clearly have been received by the Council, even if that receipt was not accompanied by knowledge of it until the next working day.
40. It may be that there are cases where it can be shown that problems with the e-mail system lead to the conclusion that an appeal has not been made within time, but this is not that case. As I have noted, there is no evidence of any delay and nothing to support the contention that the e-mail would not have been available to be read by Council officers had they logged onto their e-mail system that Friday evening.
41. I therefore conclude that, even if the time for appealing ran from the date of the letter of 12 September (receipt of which is disputed by P), an appeal was duly made within time by the submission of the notice by e-mail to the Council at 9.08pm. It follows that the Council has acted unlawfully in refusing to recognise the validity of the appeal and in failing to progress it.

(3) The question of the receipt of the letter of 12 September

42. The most significant remaining issue relates to the question of whether P's mother received the first letter, sent by the School on 12 September. P's mother's evidence was that she did not receive notification of the Governors' decision until the Council's letter of 20 reached her on 22 September. If that is correct, then time for appealing did not expire until 13 October and therefore even if the notice should only be regarded as having been given on Monday 9 October, it would have been well within time.
43. This conclusion is disputed by the Council on the basis that it determined that P's mother had received the letter of 12 September and that their decision to that effect was only challengeable on Wednesbury grounds. Whilst I do not need to deal with this contention at length, in my judgment the question of the determination of facts regarding the validity of the giving of a notice of appeal is a question of precedent fact for the court. It is not the type of issue which is regularly given to public authorities to determine as matters of discretion or which require some degree of judgment such as the entitlement to certain benefits, determining housing requirements, planning issues and the like. It is the question as to whether evidence of non-receipt of a letter, setting the time running for giving a notice of appeal, should be accepted. On its face, this issue seems eminently suitable for decision by the Court.
44. I have considered the helpful statement of principle in the current edition of De Smith (6 edition, para. 4-047) which notes that the issues depend upon the particular statutory scheme and context. At paragraph 4–048 De Smith states:

"Where a set of facts must exist for the exercise of the jurisdiction of the decision maker (in the strict sense of permitting the decision maker to enter into its enquiry) the courts are entitled to enquire into the existence of those facts. The language of jurisdiction is not necessary to justify such an intervention ... The exercise of the decision maker's power is dependent upon the existence of a fact or set of facts. The court is entitled to ensure those facts exist."

45. Since the issue here is a factual issue on which the important issue of a valid notice of appeal turns, it seems to me this is typically a matter within the competence and jurisdiction of the courts to determine and, indeed, is an issue which the courts ought to determine. It is not easily categorised as a question on which the local authority can apply its own discretion, but a question of fact and the credibility of a witness. It may be that in some regulations there are judgments to be exercised before a procedure can begin. This is not one of those cases. There is no judgment to be exercised other than a question of deciding a factual question on the basis of evidence which is as readily available to the Court as it was to the Council. A decision as to the reliability of evidence is a task more suited to the Court than to the Council. Indeed, in my judgment, it is a matter to be determined by the court.
46. It is important to note that this is not a case where the Council brings primary evidence of its own to set against P's mother's explanation but one where it simply has drawn its own conclusions on the materials also before the Court. I have no reason to disbelieve the account which has been given by P's mother that she did not receive the letter of 12 September, and that the first letter she received was that of 20 September, which she received two days later on the 22. Since she fixed up a meeting with Mr German shortly after receipt of the letter, no explanation has been provided by the Council why she would have failed to do so earlier if she had received the letter of 12 September. As far as P's mother was concerned, Mr German told her that he would send off the notice after the meeting on 27 September and, so far as she was concerned, it was sent off in good time for 4 or 6 October. The terms of the notice of appeal do not support the contention advanced by Mr Hyams that they were plainly drafted by someone who had seen the reasons in the letter of 12 September which were missing from the later letter. The Council's submission amounted to an allegation that P's mother was lying about non-receipt. I disagree. The grounds are of a general nature and directed to the issues raised by the School's evidence justifying exclusion discussed before the Governors and are not directed to the specific reasons given in the letter of 12 September.
47. On that basis, and finding as I do that the evidence supports the conclusion that the first notification of the decision to be appealed was given on 22 September, the time for appealing did not expire until 13 October and therefore, on any view, the notice of appeal would have been in time because it was received by the Council at the latest on the morning of 9 October. I do not have to make a conclusive ruling on that point, but I make it clear that I would have found for the Claimant on the basis of the non-receipt of the letter of 12 September if I had not done so on the issue of the giving of notice on 6 October.

(4) Other issues

48. On the question of the existence of discretion to extend time for appealing, I do not have to express a final view on that question, though it does seem clear that the wording of the statute does not confer any such discretion and is in strict terms. That is consistent with government guidance which, whilst not decisive on matters of law for the court is nonetheless helpful. Whether or not all education authorities act in accordance with this interpretation of the law is a separate matter. I did not call upon Mr Hyams to respond to Mr Rawlings' submissions on this point and do not have to reach a final decision in the light of my decision on the notice of appeal.

Conclusion

49. My decision in respect of the e-mail of 6 October giving notice to appeal is sufficient to dispose of this judicial review in the Claimant's favour. I find in favour of the Claimant that he duly made an appeal against exclusion and that the Council has wrongly refused to accept it. I will now discuss with counsel the appropriate relief.
50. MR RAWLINGS: Thank you, my Lord. The claim form sought an order that the local authority had acted unlawfully in refusing the appeal -- that clearly follows -- and also sought an expeditious Independent Appeal Panel hearing within fifteen school days.
51. THE DEPUTY JUDGE: Firstly, the school has its own independent legal duty as to how it now proceeds. Mr Hyams?
52. MR HYAMS: It is the local authority that has the duty, has a duty to request the appeal.
53. THE DEPUTY JUDGE: I have no reason to believe, Mr Rawlings, that they are not going to do so. I think an order of mandamus in those circumstances is probably going a little far.
54. MR HYAMS: It is certainly unnecessary, if I may say so.
55. MR RAWLINGS: If my learned friend is giving an undertaking then that is not necessary.
56. MR HYAMS: I am not giving a personal undertaking--
57. THE DEPUTY JUDGE: It is all right, Mr Hyams, I understand.
58. MR RAWLINGS: Your Lordship understands the anxiety that my client has.
59. THE DEPUTY JUDGE: It is still 2 years. The local authority has been perhaps a little obdurate in its refusal to consider any flexibility with regard to your client and his attempts to appeal. Nonetheless, I think it is unnecessary to assume that they will not comply with their duty now. I am quite content for you to have permission to apply in the event, rather than commence fresh proceedings. If there is an issue with regard to this, you can come back to the court in the context of the current proceedings.
60. MR HYAMS: That will not be necessary, my Lord.
61. THE DEPUTY JUDGE: I am sure it will not.
62. So far as the primary relief is concerned, I only need to issue a declaration, do I not?
63. MR HYAMS: My Lord, yes. That will be that the appeal was lodged in time.
64. THE DEPUTY JUDGE: In which case I will so declare that the appeal made by P, through his mother and sent to the local authority by e-mail dated 6 October 2006 was the valid commencement of the appeal and that P is entitled to proceed, through a valid appeal process before the Independent Appeals Panel, pursuant to the 2002 regulations.
65. MR RAWLINGS: Thank you. The only other order is an order for costs, my Lord.
66. MR HYAMS: My Lord, what I would say is that the issues have been determined in a fairly unusual way. Some of these points have been put in slightly different ways.
67. THE DEPUTY JUDGE: That is not unusual in this court.
68. MR HYAMS: I cannot resist an order for the payment of at least some of my learned friend's client's costs and in fact the Legal Service Commisson's.
69. THE DEPUTY JUDGE: I think that given Mummery LJ thought all the claims were arguable, I think, to use Mr Rawlings' phrase: you are banging at a closed door there. I afraid Mummery LJ made it quite clear that all these issues ought to come before the court and they were to some extent interdependent. You have succeeded effectively on the validity point which I had to determine first. But it is a very short point in the greater scheme of things.
70. MR HYAMS: What I would say is that Mummery LJ concluded that the points should be run if only because--
71. THE DEPUTY JUDGE: They should all be heard together.
72. MR HYAMS: It was not an economic or a sensible use of the court's resources. Or, the one point you found and clearly to have been bad to be dealt with on appeal. What I say is that at least the costs relating to that point should not be met by the Council. That is clear, my Lord. My learned friend took it upon himself to run this point, which your Lordship thought was not good, which it was thought was not good at the permission stage and which then caused the expenditure of a considerable amount of money in relation to it, by going to the court of appeal. What I say therefore it would be possible to exclude from the order those costs relating at least to the appeal.
73. MR RAWLINGS: My Lord, Mummery LJ reserved costs.
74. THE DEPUTY JUDGE: You did not provide me with a copy of his judgment. I had to download it myself from Westlaw.
75. MR RAWLINGS: You are ahead of both of us, my Lord. The issue of costs was simply reserved by Mummery LJ to the judge who hears the substantive review. As your Lordship indicates, all four points on that fourth ground was given permission to be run. Whilst your Lordship decided against me on that, it was not in terms of it being a bad point. Your Lordship did say in some circumstances the validity of the appeal notice, depending on what was said, may be very relevant.
76. THE DEPUTY JUDGE: What Mummery LJ said:

"I think it is better that the court that hears the judicial review application... The administrative court should hear all the argument. If it thinks that this is a hopeless argument then not much time should be spent on it, but the decision is better taken there than here."

77. MR HYAMS: Which is what I am saying.
78. THE DEPUTY JUDGE: Yes, which is in accordance with Mr Hyams' position.
79. MR RAWLINGS: My Lord, the decision was taken here but the decision was against me on that particular point but what has not been said that the decision was unarguable and he gave permission to run that decision. What Mr Hyams now seeks is the costs of the Court of Appeal proceedings which would be most unusual for a Claimant to have those costs not awarded to him when he has obtained permission to run that particular point in front of the court today.
80. THE DEPUTY JUDGE: Have you a schedule of costs?
81. MR RAWLINGS: No, because my client is publicly funded, the issue of costs would have to be dealt with on taxation in any event, depending on what happened today. Rather than incur a schedule costs, legally funded lawyers tend to wait until a costs order is made and have it dealt with at taxation.
82. THE DEPUTY JUDGE: I am inclined to treat this matter in the round rather than make the order too complicated. Mr Rawlings, I am inclined to give you a proportion of your costs rather than make orders and counter orders, because the fact is that you went to the Court of Appeal on the discrete issue of the fourth ground and whilst Mummery LJ did say it was better to hear all the matters together, and one can perfectly well understand that because the points are all interrelated, nonetheless that was a discrete issue which has caused delay and costs. I am not going to award Mr Hyams' costs in respect of that, and indeed it would not get him very far in any event with a public funding order in place. What I am going to do is just to make an order that the Council shall pay three quarters of your costs, just to reflect that particular point.
83. MR RAWLINGS: My Lord, is it possible to seek to persuade you not to put such a low, I would suggest, proportion on the Claimant's costs because the costs of the Court of Appeal process and running that particular point, although it is one of four points, was not necessarily a quarter of the time spent.
84. THE DEPUTY JUDGE: If you can give me a better indication then I am prepared to consider that but since I have no schedule of costs it is rather difficult for me to know. Are you able to give me any idea?
85. MR RAWLINGS: It may be that the order should be the -- I do not, I am not able to tell you because I do not have a costs schedule.
86. THE DEPUTY JUDGE: How long did the hearing take?
87. MR HYAMS: Before Mummery LJ an hour or two. There was a considerable amount of to-ing and fro-ing in relation to the situation because of the lack of clarity on the part of at least the court staff, but there was a considerable amount of solicitor time expended on finding out what was happening.
88. THE DEPUTY JUDGE: Was this the fault of the court or the Claimant then?
89. MR RAWLINGS: We would say it was the fault of the court because it was not lodged properly.
90. THE DEPUTY JUDGE: There was a confusion about whether there was an appeal on three grounds--
91. MR HYAMS: Because of a letter written by the Claimant's solicitors, I have to say, as I recall.
92. MR RAWLINGS: It was the interpretation of the letter.
93. MR HYAMS: My Lord, can say I would have submitted to your Lordship that, at the very worst, we should have to pay three-quarter's, a quarter appeared right to me. My submission is that your Lordship's order is right.
94. THE DEPUTY JUDGE: Mr Rawlings is there anything else?
95. MR RAWLINGS: I have no instructions on schedule or the time taken on particular discrete issues.
96. THE DEPUTY JUDGE: Given that the hearing in the Court of Appeal seems to have taken about nearly half of the time that it has taken to hear the substantive judicial review.
97. MR RAWLINGS: The court sat from 11.15 to 12.08, according to this.
98. THE DEPUTY JUDGE: Very well. Given in any event the need for separate procedure and given the absence of any detailed costs -- which I do not think will give me guidance -- I think three-quarters seems to me, doing the best that I can and applying justice as broadly as I can in the circumstances, it seems to be the right figure, Mr Rawlings. I am sorry I cannot assist you further on that.
99. The defendant to pay three-quarter of the Claimant's costs; the Claimant's costs to be subject to normal public funding taxation.