Phillips v Brown: QBD 20 Jun 1980

DONALDSON LJ: Mr. Phillips appeals by case stated against his conviction and a fine of andpound;5 imposed by Mr Loy, the Leeds Stipendiary Magistrates, in September 1978 for failure to comply with a School Attendance Order. It is not the conviction or the fine which irks Mr. Phillips. His irritation, and perhaps even anger, is based upon his belief that the local education authority has exceeded its powers under the Education Act 1944.

The facts can be stated relatively briefly, but it is necessary to refer to the correspondence which is exhibited to the case.

Mr. Phillips and Mrs. Reah, who was also charged and convicted, are the parents of Oak, who was born on or about 24th June 1971. At the relevant time Oak was thus of compulsory school age.

In October 1976 the local education authority (to whom I shall hereafter refer to as the ‘L.E.A.’), became aware that Oak was not attending any school. They wrote to the parents who replied by letter dated 11th October 1976 as follows: ‘Oak Reah receives efficient, full time education (from Mrs. R.H. Reah and Mr. J.D. Phillips) which is suitable to his age, aptitude, and ability: he receives this education otherwise than by regular attendance at school: he has already received this education since (and inclusive of) his 5th birthday: such education falls in accordance with current Educational Law.’

The authority then served a School Attendance Notice on the parents, which they ignored. However, when the matter came before the Leeds Magistrates Court on 6th April 1977, no evidence was offered and the complaint was dismissed.

This was the end of the first round in the contest. The second round, with which we are primarily concerned, opened less than two months later. Oak was still not attending any school and on 14th June 1977 the L.E.A. wrote to the parents as follows:
‘As your son, Oak, is now of compulsory school age, the Education Authority is required to satisfy itself that he is being educated in accordance with his age, ability and aptitude.

‘I must therefore request that you submit to the Education Authority details of the educational programme which Oak is now following, together with any relevant information which may assist the Authority in satisfying itself that the education being provided is appropriate in the circumstances.’
A copy of this letter has been forwarded to your Solicitor . . ‘ Somewhat surprisingly the reply came from solicitors, Victor D. Zermansky and Co., and was in the following terms: ‘We can do no more than reiterate what we have said previously. Your powers under the Education Act 1944 only come into operation if ‘it appears . . that the parents of any child . . are failing to perform their duty.’

‘In this case there has been nothing to give any such appearance. Our clients are conscious of their duty expressed in Section 36 of the Education Act 1944 to educate their child in accordance with that Section and confirm that they are so educating him.’
There followed a lull in hostilities and then on 24th January 1978 the L.E.A. wrote to the parents: ‘It would appear that you, being the parents of the above-named child have failed to cause your child to receive full-time education, suitable to his age, ability and aptitude, either by regular attendance at school or otherwise.

‘I therefore serve this notice upon you that you are required under section 37 of the 1944 Education Act to satisfy my authority by the 8th February 1978, that your child, Oak Reah, is receiving efficient full-time education suitable to his age, ability and aptitude either by regular attendance at school or otherwise.’

Reply came there none and on 22nd February 1978 the L.E.A. again wrote to the parents and said that the authority noted their failure to satisfy the authority about the child’s education and continued: ‘The Authority therefore propose to serve upon you, under the provisions of section 37(2) of the Education Act, 1944, a School Attendance Order which will require you to cause the child to become a registered pupil at a particular school to be named in the Order. If you fail to comply with the Order, you will be guilty of an offence, and it will be the duty of the Authority to take proceedings against you.’
They later went on to deal with the rights of the parents to express view about the school concerned.

The School Attendance Order itself was dated 3rd April 1978 and required the parents to cause Oak to forthwith become a registered pupil of a named school in the Leeds area. The parents did not comply with this order.

At the hearing before Mr. Loy, the Senior Education Welfare Officer of the L.E.A. gave evidence that Oak was not a registered pupil at a Leeds school and that no information had been forthcoming from the parents regarding the child’s curriculum, timetable, subjects to be studied and whether these were appropriate to his age, ability and aptitude. She said that, from these facts, it appeared to the L.E.A. that the parents were failing to perform their duty under section 36 of the Education Act, 1944, and that accordingly, a section 37(1) notice had been served upon them. This was the letter dated 24th January 1978. The parents gave no evidence concerning Oak’s education, but took the point that before an L.E.A. could issue a notice under section 37(1) of the Act, something positive must have come to its notice as a result of which it could and did appear to the L.E.A. that there was a failure by the parents in their duty under section 36 of the Act. The parents contended that there was no evidence of any such matter. It followed that it could not appear to the L.E.A. that the parents were failings in their duty, the section 37(1) notice was invalid and so was the School Attendance Order based upon that notice.

The learned Magistrate’s conclusions were set out in paragraph 6 of the case as follows: ‘I was of the opinion: (a) That at the time the letter dated 14th June, 1977 was written the child was not attending school and the Local Authority had no information regarding his teaching. (b) That the letter written by the Local Education Authority dated 14th June 1977 was a perfectly proper request for information and one that they were entitled to make. (c) That the words ‘if it appears to a Local Education Authority’ in Section 37(1) of the Education Act 1944 make the respondents the judges on the question of whether or not there has been a failure on the part of the parents to perform their duties under the Education Act, and that the court cannot enquire into its judgment. (d) That in any event the failure to send the child to any school and to give any, or any satisfactory, information about the child’s schooling when asked by the respondents was sufficient evidence of ‘failure’ to make it their duty to serve notice under Section 37(1) of the Education Act 1944 asking for details of the child’s education. (e) Being satisfied that the respondents had carried out the statutory procedure and requirements of Section 37 of the Act, that the School Attendance Order had been served properly upon the appellants, that the appellants had failed to comply with the requirements of such order and no evidence being adduced before me by, or on behalf of either appellant to prove that the child was receiving efficient full-time education at school or otherwise, I found the summons proved against both defendants and fined them each the sum of andpound;5.00.’

Two questions are referred to this Court, namely the interpretation of the words ‘if it appears’ in section 37(1) of the Education Act 1944, and whether the respondent’s judgment was a matter about which the Court could enquire and if so whether there was sufficient evidence before the Court, or any evidence upon which it could be established that it did appear to the Local Education Authority.

Mr. Phillips has argued this case with conspicuous skill. In general terms he has two complaints. The first is that an L.E.A. exceeds its powers if it asks parents to prove that they are discharging their duty to ensure that their children are properly educated, unless it has some reason to doubt that this is the case. The second is that the learned Magistrate has held that the L.E.A. is the sole judge of whether it appears to it that parents have failed to discharge this duty, whereas Mr. Phillips contends that the Courts have at least a supervisory jurisdiction.

The starting point for Mr. Phillips’s argument is that the Education Act 1944 has placed the duty of securing that children are properly educated fairly and squarely upon the parents. This I accept. The duty is imposed by and expressed in section 36 of the Act, which provides that: ‘It shall be the duty of the parent of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability, and aptitude, either by regular attendance at school or otherwise.’

Mr. Phillips says that no similar general duty is imposed upon L.E.A.S. This also I accept. However, it is not correct to conclude, and Mr. Phillips did not suggest, that L.E.A.s were not concerned with whether parents discharge this duty. In the circumstance prescribed by section 37(1) of the Education Act 1944, it is their duty ‘to serve upon the parent a notice requiring him, within such time as may be specified in the notice not being less than fourteen days from the service thereof, to satisfy the authority that the child is receiving efficient full-time education suitable to his age, ability, and aptitude either by regular attendance at school or otherwise’. The prescribed circumstance is that ‘it appears to a local education authority that the parent of any child of compulsory school age in their area is failing to perform the duty imposed on him by the last foregoing section’.
Mr. Phillips submits that unless and until something comes to the notice of a local authority which causes it to conclude that prima facie particular parents are in breach of their duty under section 36 of the Education Act 1944 it is neither bound nor entitled to make inquiries of those parents. He claims than an L.E.A. is in the same position as a policeman and says that policeman do not go from house to house inquiring whether a burglary has been committed. Similarly L.E.A.s should not oppress parents by inquiring whether there has been a breach of section 36. In Mr. Phillips’s submission the L.E.A. in this case is seeking to invert section 37(1) and to treat it as if it authorised and required the making of inquiries of parents before and in order that the L.E.A. may consider whether it appears that there has been a breach of section 36.

Whilst I acknowledge the force of this argument, it seems to me that where an authority has a duty to take action in particular circumstances, it also has a duty to be alert in order to detect the possibility that those circumstances exist.

It needs to know what children of school age live in its area in order that it may perform its statutory duty to provide sufficient schools (section 8 of the Education Act 1944) and to ascertain what children require special educational treatment (section 34). It knows which of these children attend its own schools. It follows that an L.E.A. will or should know that certain children in its area are in a different category — namely being educated at other schools, being educated otherwise than by attendance at school or not being educated properly or even at all. Unless the L.E.A. knows into which sub-category a particular child falls, it is put on inquiry.

What should it do? I do not accept that it should do nothing. This would rightly be criticised as an attempt to because like an ostrich — to put its head in the sand in order that it should not learn of anything which might place upon it the burden of discharging its duty to consider making and, in appropriate cases, to make School Attendance Orders. The most obvious step to take is to ask the parents for information. Of course such a request is not the same as a notice under section 37(1) of the Education Act 1944 and the parents will be under no duty to comply. However it would be sensible for them to do so. If parents give no information or adopt the course adopted by Mr. Phillips of merely stating that they are discharging their duty without giving any details of how they are doing so, the L.E.A. will have to consider and decide whether it ‘appears’ to it that the parents are in breach of section 36. In this context there is no reason why it should necessarily accept the parents’ view — opinions differ on what has to be done in discharge of the duty — and if the parents refuse to answer, it could very easily conclude that prima facie the parents were in breath of their duty.

If the L.E.A., having considered the matter, is in a state of mind which can be described by saying that it appears to them that the parents are in breach of their obligation under section 36 of the Education Act 1944 it has no alternative but to serve notice on the parents under section 37(1) requiring the parents to satisfy them within a specified period, not being less than fourteen days, that the child is receiving efficient full-time education suitable to his age, ability and aptitude either by regular attendance at school or otherwise.

What happens next is set out very clearly in section 37(2) in these terms: ‘If, after such a notice has been served upon a parent by a local education authority, the parent fails to satisfy the authority in accordance with the requirements of the notice that the child to whom the notice relates is receiving efficient full-time education suitable to his age, ability, and aptitude, then, if in the opinion of the authority it is expedient that he should attend school, the authority shall serve upon the parent an order in the prescribed form (hereinafter referred to as a ‘school attendance order’) requiring him to cause the child to become a registered pupil at a school named in the order’. ‘Expedient’ in this context means ‘advantageous, fit, proper or suitable to the circumstances of the case’ (see the Shorter Oxford English Dictionary).

If the parents fail to comply with the School Attendance Order, they commit an offence unless they prove that they are causing the child to receive efficient full-time education suitable to his age, ability and aptitude otherwise than at school. This is a matter which falls to be proved to the satisfaction of the magistrates to whom complaint is made that an offence has been committed.

Life would have been much easier for all concerned, including Mr. Phillips, if he had seen fit to place evidence before the Magistrate designed to prove this point, but he did not do so. Instead he sought to argue that the School Attendance Order itself should not have been made because it did not in fact appear to the L.E.A. that he and Mrs. Reah were it breach of their section 36 duty and accordingly the L.E.A. had not been entitled to issue the order. Alternatively, he would like to have contended that the L.E.A. could not have formed the opinion that it was expedient that Oak should attend school. The learned Magistrate held that it was not open to him to consider such an argument. Here I think that he erred.

In The Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q B 455, [1972] 2 All ER 949 the Court of Appeal was concerned with a statute which authorised the making of an application to the Court ‘if it appears to the Secretary of State . .’ The Court held that this did not put the Minister’s decision beyond challenge. It was open to a respondent to the application to seek to show that the Minister had not acted bona fide or that he must have misdirected himself in law. Similarly, in the case of proceedings brought for non-compliance with a School Attendance Order, in my judgment it is open to the defendant parent to place evidence before the Court designed to show that it could not have appeared to a reasonable L.E.A., correctly directing itself as to what matters were relevant, that the parent was in breach of his section 36 duty or, as the case may be, that it was expedient that the child should attend school and that the making of the School Attendance Order was therefore unauthorised and a nullity. But Courts should not readily accede to such an argument in the absence of evidence that in fact the parents are discharging their section 36 duty and, if this is once proved, the defendant would in any event be entitled to be acquitted and the Court may make an order under section 37(6) of the Education Act 1944 that the School Attendance Order shall cease to be in force. In the circumstances parents would be well advised to concentrate upon the defence which is available to them under section 37(5) rather than to take on the very much heavier burden of seeking to attack the School Attendance Order in limine.

On the facts of this case the learned Magistrate should have applied his mind to the question of whether it could properly have appeared to the L.E.A. that the parents were in breach of their section 36 duty and whether it could properly have been of opinion that it was expedient that Oak should attend school and I answer the questions set out in the case stated accordingly. The conviction will be set aside and the matter remitted to the learned Magistrate for further consideration should the L.E.A. wish him to do so. However, if we were correctly informed by Mr. Phillips that Oak is no longer in his care and custody, it may be that the L.E.A. will think that no further action is called for in relation to this particular School Attendance Order.

Mr. Phillips also contended that he was in effect entitled to plead autrefois acquit on the basis of his acquittal of the complaint based upon the earlier School Attendance Order. Here he is wrong. The offence alleged in the second proceedings was a different offence, namely non-compliance with the second order. All that can be said is that if, which may or may not have been the case, no evidence was offered in support of the first complaint because the L.E.A. was satisfied that the parents were discharging their section 36 duty at that time, the Magistrate, in the absence of some explanation, might wonder why the positions was different at the time of the issue of the second School Attendance Order.

Finally, I should mention that Mr. Phillips expressed concern lest, if the Magistrate’s view of the law was right, it would be open to an L.E.A. to persecute a parent by issuing a series of School Attendance Orders at short intervals, making complaints that the orders were not complied with and on each occasion requiring the parent to prove that he was discharging his section 36 duty. There is no evidence whatsoever that this has happened in this case or in any other case. But Mr. Phillips need have no fear. Apart altogether from the power of the Magistrates Court to order that a particular School Attendance Order shall cease to be in force pursuant to section 37(6), the Divisional Court, in an appropriate case, has the necessary power and would have no hesitation in restraining such conduct by an L.E.A. by means of judicial review.
WOOLF J: I agree.
:
Conviction set aside, case remitted to the Magistrates.
References: Unreported, 20 June 1980, 424/78
Judges: Donaldson LJ, Woolf J
Statutes: Education Act 1944 36 37(2)
This case cites:

  • Cited – Secretary of State for Employment v ASLEF (No 2) CA 1972
    Railway employees had been instructed by their unions to ‘work to rule’ and more specifically to ban overtime, Sunday and rest day working. ‘Working to rule’ meant giving an unreasonably literal construction to certain requirements of the railway . .
    ([1972] ICR 19, [1972] 2 QB 455)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.452396