Two bites of the apple- limitation in professional negligence cases
Zebaida v Secretary of State for Education  EWHC 1181 (Admin)
The Appellant is a concert pianist who worked as a freelance music examiner between 1998 and 2013. In 2000 he also held a brief role as a part-time music teacher for one term.
In 2013 the Appellant was convicted of Sexual Assault under Section 3 of the Sexual Offences Act 2003, after being found to have intentionally touched a 15 year old female in a sexual manner in November 2012. He was sentenced to a conditional discharge order of 2 years, issued with a sex offenders’ notice for 2 years and ordered to pay a victim surcharge.
The matter was referred by the Disclosure and Barring Service to the National College for Teaching and Leadership (NCTL), which undertakes the statutory function of investigating allegations against teachers in England on behalf of the Secretary of State for Education.
In April 2015 a professional conduct panel of the NCTL (the Panel) convened to consider the allegation that the Appellant was guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute as a result of his conviction in 2013. Initially jurisdiction of the NCTL to hear the case was not challenged but a challenge was subsequently made and the hearing was adjourned until January 2016. The Appellant argued that the Panel had no authority to hear allegations relating to a teacher not currently teaching. The Panel concluded however that they did have jurisdiction as the Appellant was ‘a teacher’. They went on to find the allegation against the Appellant proven and recommended that the Secretary of State impose a prohibition order which should be reviewable after a 2 year period.
The Secretary of State for Education agreed with the recommendation to impose a prohibition order under their powers in Section 141B of the Education Act 2002, save that they did not consider a review period was appropriate given the serious nature of the conviction and the likely public concern if the Appellant was allowed to apply for review.
The Appellant appealed against the Secretary of State’s decision. The appeal centred on the following issues:
1. Whether the Secretary of State for Education had jurisdiction to make the prohibition order.
2. The finding that the behaviour constituted unacceptable professional conduct or conduct that may bring the teaching profession into disrepute.
3. The appropriateness and proportionality of the sanction.
Looking at the first issue, the Appellant argued that on the reading of Section 141A of the Education Act 2002, the person who ‘is employed’ has to be employed either at the time of the conduct complained of or at the time when the allegation is referred to the Secretary of State.
Section 141A of the Education Act 2002 provides that:
‘Sections 141B to 141E apply to a person who is employed or engaged to carry out teaching work at -
(a) a school in England,
(b) a sixth form college in England,
(ba) a 16 to 19 Academy,
(c) relevant youth accommodation in England, or
(d) a children's home in England.’
The Secretary of State argued that the literal interpretation of this section ignored the mischief that the regulatory process is designed to address and would be inconsistent with the legislative purpose to protect the public. They also referred to subsequent sections of the Act which provided for circumstances in which a referral could be made, even though the teacher was no longer a teacher.
Both parties referred to the case of Re M (a Minor) (Care Orders)  2 AC 424 in which the House of Lords considered the use of present tense in section 31 of the Children Act 1989. This section allowed the court to make a care order if the child ‘is suffering or is likely to suffer significant harm’. By the time of the hearing the child in this case was safe. The House of Lords held that notwithstanding the use of the word ‘is’, the Act did not require evidence of significant harm at the time of the court’s decision, the section was really concerned with whether there had been significant harm or a likelihood of this at the time proceeding were commenced.
Both parties also referred to White v White 1983 WL 215608 in which the wording of the Domestic Violence and Matrimonial Proceedings Act was considered. In this case a former wife sought a restraining injunction under the Act in circumstances where a decree absolute had already been granted and her former husband had left the matrimonial home. The literal construction of the Act provided that it only applied to a man and woman who were parties to a marriage or who were at the moment of the application or hearing actually living with each other. It was held however that a literal interpretation did not give effect to the intention of Parliament. The Secretary of State argued that the same analogy must be applied in this case otherwise the purpose of the legislation, being to protect children, would be undermined. The Appellant argued that the decision in White was specific to the facts of the case.
The appeal was allowed. It was found that the Education Act 2002 allows for referral to the Secretary of State a person:
1. who is employed or engaged in teaching (whenever the conduct giving rise to the concern takes place); or
2. who was so employed or engaged at the time the conduct complained of takes place or comes to light.
Her Honour Judge Molyneux stated in paragraph 38 of her Judgment:
“The legislation, as worded, does not allow for the referral of a person who is not employed as a teacher either at the time of the conduct or at the time of the referral. If Parliament has intended s141A to a person who “is or has been employed” then it could easily have drafted the section to say so.”
Given Her Honour Judge Molyneux found in favour of the Appellant in respect of the first issue of the appeal there was no need to consider parts two and three.
The effect of this case is to limit the remit of the NCTL to consider only those matters where a person is engaged in teaching or who was so engaged at the time of the conduct. The facts of this particular case may be considered unusual and in practice most cases referred to the NCTL are likely to fall into either of the two categories identified.
Melinka Berridge and Louise Murphy
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