Teacher’s regulator acted outside its power in unlawful prosecutions

Teachers accused of unacceptable professional conduct are usually investigated by the regulator, the National College for Teaching and Leadership (‘NCTL’), and, if necessary, barred from teaching.

Allegations are referred to the NCTL, the teachers regulator, who investigate and where appropriate, send the case to an independent panel to hear the evidence and to decide whether the allegations are proven and whether a Prohibition Order should be made. The process is designed to protect the public and help safeguard children in the education system.

For some time the NCTL has taken a wide approach to its remit by prosecuting persons who have been involved in teaching work in schools at any time, whether before or after the alleged misconduct. On this basis, it has investigated and prosecuted lecturers and examiners as well as persons who dip in and out of teaching at schools. However, two recent High Court decisions that have refined the class of persons that can be prosecuted by the NCTL and called into question the NCTL’s assumptions about the scope of its own powers.

The key issue has been whether the NCTL’s jurisdiction includes persons who fall outside the definition of a “teacher” in in section 141A of the Education Act 2002 (‘EA 2002’).

First came Zebeida v Secretary of State for Education [2016] EWHC 1181 (Admin), where although the High Court emphasized that the protection of children “must be at the heart of the education system” and this called for robust regulation, it nevertheless held that:

• If a person is not a “teacher” at the time of the misconduct and the time of the referral, then the NCTL has no jurisdiction to investigate, convene a panel hearing and bar the person from teaching.
• The law allows for referral to the regulator where a person is employed or engaged as a teacher (whenever the misconduct occurs) or who was employed or engaged as a teacher at the time of the misconduct or when it comes to light (§ 37).

Then came the case of Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin), where Mr Justice Andrews gave judgment.

• Mr Alsaifi was a lecturer with a further education college. An allegation was made that he had sent inappropriate emails to a 17-year old learner in his class, made inappropriate physical contact with her and tried, unsuccessfully, to enter a relationship with her. The matter was investigated internally. Mr Alsaifi resigned. He denied any inappropriate conduct and/or touching and denied knowing that the learner was 17-years old.
• Section 141A and 141B of EA 2002 only apply to certain types of “teacher”. Lecturers in Further Education colleges do not fall within section 141A.
• Mr Alsaifi was not a “teacher”, either at the time of the alleged misconduct or the referral to the NCTL. Further, under section 3 of the 2002 Act, the complainant was not a “pupil” as she was doing part-time education in an FE setting.The learners in Mr Alsaifi’s class were not “pupils”.
• The Judge rejected the rather outlandish argument by the Secretary of State that it was not open to the Appellant to take the jurisdiction point if he had failed to raise the argument at the panel hearing [§ 52].
• The High Court criticised the manner in which Mr Alsaifi was prosecuted:

The panel and the case presenter should have been aware of the ambit of the NCTL’s jurisdiction but it appears that no-one, not even the panel’s legal advisor, was alive to the fact that there was a serious issue about the legitimacy of the proceedings. What the appellant said was enough to have put them on notice of the issue. (§ 53)

• The Judge doubted whether the law allows for persons who are currently teachers to be investigated by the regulator for unprofessional conduct that occurred in the past when the person was not engaged as a “teacher” under section 141A. However, there are arguments both ways and the point did not need to be decided (§64 – 67).
• Regulatory proceedings started when there was no power to do so cannot become legitimate by chance because at the time of the hearing the person met the criteria (§ 77).

So who regulates lecturers in further education colleges who may be in contact with children as young as 16? No-one at the Court hearing seemed to know:

There may be some different regulator responsible for the conduct of those engaged as lecturers by further education establishments such as Newcastle College, or by Universities; however, at the hearing, neither counsel nor the appellant was able to identify any such body, if indeed it exists. It is possible that such conduct is solely a matter for internal regulation by the individual establishment that engages the teacher. (§ 48)

Mind the gap

These case highlight a significant protection gap that has been left wide open by Parliament and which the Court was unable or unwilling to fill.

Alleged misconduct in educational settings involving children should attract investigation and sanction. Whether it takes place in an FE college or a sixth form college should not make a decisive difference to the regulatory consequences.

I would not be surprised if the new Secretary of State seeks to close this gap by adding tutors and lecturers at FE institutions (and other types of tutors such as examiners) to the list of those defined as “teachers”.

For now, the gap remains open and there may be good grounds to review all historic cases where persons have been found guilty of unprofessional conduct and barred from the profession if it can be argued that the person was not a “teacher” as defined by section 141A of the 2002 Act, read with the Regulations, at the time of the misconduct (or when it comes to light) and at the time of the referral to the NCTL.

Persons who have been wrongfully prosecuted may well have claims for damages where the effect of the proceedings has been detrimental to their health.

Who benefits?

In summary, in cases concerning unacceptable professional misconduct by teachers the effect of the recent High Court cases is as follows:

• If a person does not meets the “teacher” criteria in section 141A of the 2002 Act either at the time of the misconduct (or possibly when it comes to light) or the date of the referral to the NCTL, the NCTL has no jurisdiction to investigate and prosecute them.
• If a person only meets the “teacher” criteria at the time the referral to the NCTL is made, the NCTL has jurisdiction, but this is subject to arguments about whether or not the NCTL should investigate misconduct committed when the person was not a “teacher” (see §§ 64 to 67 and 76 in Alsaifi). (This scenario is quite uncertain as the Court did not give any guidance on when it would be appropriate to prosecute in these cases. The answer is probably fact-specific).
• If the “teacher” criteria are only met at a later date (after the misconduct and after the referral) then the NCTL has no jurisdiction.