The High Court has quashed a school’s decision to expel a teenage student with autism. The 16 years old boy had been expelled in November 2018 and this decision was appealed under section 29 of the Education Act 1998.
The Department of Education committee upheld the decision of the school’s Board of Management and found that it was a reasonable response for the school in all the circumstances which included assaults and aggressive behaviours by the boy against himself, other students, and teaching staff.
The committee agreed with the Board of Management that expulsion was reasonable having regard to the school’s duty to other students and staff.
The boy, through his mother, brought judicial review proceedings against the Department of Education and Minister for Justice and requested that the case be sent back for review by a different committee.
Judgment of High Court
Mr Justice Senan Allen decided that the committee of the Department of Education considered irrelevant matters in arriving at its decision and the correct test for the committee to apply was whether, in its view, expulsion was warranted. The appeal of the decision to expel must now be heard by a newly constituted committee in accordance with section 29 of the Education Act 1998.
There is a difficult balancing of rights in all these types of cases.
On the one hand is the constitutional right of any child to an education; on the other hand is the rights of the other students to an education, and the rights of staff to work in a safe workplace. The Board of Management is saddled with the onerous responsibility of striking the correct balance and discharging its duty of care to all pupils and its employees.
Resource-Section 29 Education Act 1998
Appeals to Secretary General.
29.— (1) Where a board or a person acting on behalf of the board—
( a) permanently excludes a student from a school, or
( b) suspends a student from attendance at a school for a period to be prescribed for the purpose of this paragraph, or
( c) refuses to enroll a student in a school, or
( d) makes a decision of a class which the Minister, following consultation with patrons, national associations of parents, recognised school management organisations, recognised trade unions and staff associations representing teachers, may from time to time determine may be appealed in accordance with this section,
the parent of the student, or in the case of a student who has reached the age of 18 years, the student, may, within a reasonable time from the date that the parent or student was informed of the decision and following the conclusion of any appeal procedures provided by the school or the patron, in accordance with section 28 , appeal that decision to the Secretary General of the Department of Education and Science and that appeal shall be heard by a committee appointed under subsection (2).
(2) For the purposes of the hearing and determination of an appeal under this section, the Minister shall appoint one or more than one committee (in this section referred to as an “ appeals committee”) each of which shall include in its membership an Inspector and such other persons as the Minister considers appropriate.
(3) Where a committee is appointed under subsection (2) the Minister shall appoint one of its number to be the chairperson of that committee and who, in the case of an equal division of votes, shall have a second or casting vote.
(4) In hearing and determining an appeal under this section an appeals committee shall act in accordance with such procedures as may be determined from time to time by the Minister following consultation with patrons, national associations of parents, recognised school management organisations and recognised trade unions and staff associations representing teachers and such procedures shall ensure that—
( a) the parties to the appeal are assisted to reach agreement on the matters the subject of the appeal where the appeals committee is of the opinion that reaching such agreement is practicable in the circumstances,
( b) hearings are conducted with the minimum of formality consistent with giving all parties a fair hearing, and
( c) appeals are dealt with within a period of 30 days from the date of the receipt of the appeal by the Secretary General, except where, on the application in writing of the appeals committee stating the reasons for a delay in determining the appeal, the Secretary General consents in writing to extend the period by not more than 14 days.
F41 [ (4A) The National Educational Welfare Board may, at the hearing of an appeal brought by a parent or student against a decision to which paragraph ( a ) or ( c ) of subsection (1) applies, make such submissions (whether in writing or orally) to the appeals committee, as it considers appropriate. ]
(5) On the determination of an appeal made under this section, the appeals committee shall send notice in writing of its determination of the appeal and the reasons for that determination to the Secretary General.
( a) an appeals committee upholds a complaint in whole or in part, and
( b) it appears to the appeals committee that any matter which was the subject of the complaint (so far as upheld) should be remedied,
the appeals committee shall make recommendations to the Secretary General as to the action to be taken.
(7) As soon as practicable after the receipt by the Secretary General of the notice referred to in subsection (5), the Secretary General—
( a) shall, by notice in writing, inform the person who made the appeal and the board of the determination of the appeals committee and the reasons therefor, and
( b) in a case to which subsection (6) applies, may in such notice give such directions to the board as appear to the Secretary General (having regard to any recommendations made by the appeals committee) to be expedient for the purpose of remedying the matter which was the subject of the appeal and the board shall act in accordance with such directions.
(8) The Minister, in consultation with patrons of schools, national associations of parents, recognised school management organisations and recognised trade unions and staff associations representing teachers, shall from time to time review the operation of this section and section 28 and the first such review shall take place not more than two years from the commencement of this section.
(9) In the case of a school which is established or maintained by F42 [ an education and training board ] an appeal against a decision of the board of such school shall lie, in the first instance, to F42 [ the education and training board ] and thereafter to the Secretary General in accordance with subsection (1).
(10) The Minister shall, from time to time, following consultation with F42 [ education and training boards ], national associations of parents and recognised trade unions and staff associations representing teachers, prescribe—
( a) the procedures for appeals under this section to F42 [ education and training boards ], and
( b) which appeals shall inquire into whether the procedure adopted by a board in reaching a decision or conducting an appeal was fair and reasonable and which appeals shall be by way of a full re-hearing.
(11) The Secretary General may, in accordance with sections 4 (1) ( i) and 9 of the Public Service Management Act, 1997, assign the responsibility for the performance of the functions for which the Secretary General is responsible under this section to another officer of the Department of Education and Science.
(12) For the purposes of subsection (1)(c), “ student” means a person who applies for enrolment at a school and that person or his or her parents may appeal against a refusal to enroll him or her in the same manner as a student or his or her parents may appeal a decision under this section.