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Education Law - Clive Rawlings wins ruling on exclusion appeal time limits

By : Clive Rawlings

 

Administrative Court rules on statutory time limit for making appeals to independent exclusion appeal panels

 

 

In R (ota) P v LB Haringey, 15th September 2008, Admin Court, CO 10655/2006, David Elvin QC, acting as a Deputy High Court Judge ruled that time for making an appeal to an independent appeal panel does not expire until midnight on the 15th school day after deemed or actual receipt of the statutory notice from the governors of the school.

P was permanently excluded from school and on the 11th September 2006 his mother was unsuccessful in her representations to the governors whose clerk posted the decision letter and Regulation 5 notice in writing of right to appeal the following day but erroneously stated the wrong date for expiry of the time for appeal having failed to calculate the limitation period as running from two days after posting by first class post per the deeming provisions of paragraph 1 (2) of Schedule 1 to the Education (Pupil Exclusion and Appeal) (Maintained Schools) (England) Regulations of 2002 as amended. Limitation expired on the 6th not the 4th of October 2006.
 
The Claimants mother did not receive the notice letter nor decision until the 20th September when the local authority sent her a copy again with the wrong date. The Claimant’s legal advisors sent her Regulation 6 (1) grounds of appeal by post on the 28th September 2006 which were not received by the local authority who informed the Claimant’s mother of this late on the 6th October 2006 whereupon at 9.18 pm the Claimant’s legal advisor emailed a further copy to a local authority officer but not the address contained in the notice.
 
The local authority, through Counsel Oliver Hyams, refused to accept the appeal on the basis that it was out of time (initially due to it being made beyond 4th October and than on the basis that it was not made properly as had not been ‘received’ until the 9th October and/or in any event was made beyond working or school hours on the 6th October) and it had no discretion to do otherwise on the basis of the Regulations and Exclusions Code. The local authority did not pursue its contention that the appeal was invalid by reason of being sent to the wrong person.
 
The Claimant asserted that a. time never commenced against the Claimant as the notices were not compliant with Regulation 5 (6) by reason of the wrong date; b. that if they were compliant time expired at midnight on the 15th school day ie 6th October since the relevant ‘date’ ends only when the next date begins; c. that sending the grounds by email complied with the obligation to make the appeal; and d. that in any event the Defendant had discretion.
 
David Elvin QC allowed the claim and ruled that the appeal had been lodged. He agreed with Mr Rawlings, Counsel for the Claimant, that despite some inconsistency and lack of clarity of meaning in the Regulations, Regulation 5 (6) (b) (v) of the 2002 Regulations and Paragraph 1 (1) of Schedule 1 read together meant that an appeal to the IAP must be made within 15 school days of actual or deemed receipt of the relevant notice so that it is received by the local authority before midnight on the relevant date. Any ambiguity that might be caused by different authorities and schools ending their working days at different times is avoided by that certainty of limitation.
 
He also ruled that sending the grounds by email amounted to ‘making’ the appeal. He did not accept that by failing to provide the correct date the notices were not compliant with the Regulations although indicated this was primarily because in this case no prejudice was caused but that may not always be the case. He also ruled that the Regulations do not provide for the local authority to have any discretion in allowing appeals out of time.
 
Solicitors for Claimant: AP Law