Aquilina, R (On the Application Of) v Secretary of State for Education

Factual and Procedural Background

This claim concerns the interpretation of section 141B(1) of the Education Act 2002 ("EA 2002") and regulation 7(5) of the Teachers' Disciplinary (England) Regulations 2012 ("the Regulations"). The Plaintiff, an experienced Headteacher, was found by a professional conduct panel ("PCP") appointed by the Teaching Regulation Agency ("TRA") to have shared confidential pupil information with her husband, who was not a school employee but had a pastoral role connected to the school. This included sensitive information such as involvement with social services and a Family Court order marked confidential.

The misconduct was uncovered following data subject access requests in 2020, leading to the Plaintiff's suspension, disciplinary hearing, dismissal, and appeal. The PCP found multiple allegations of sharing confidential information proven, concluding the Plaintiff's conduct amounted to misconduct but not of a serious nature. However, the PCP found the conduct may bring the teaching profession into disrepute due to the breach of confidentiality and the Plaintiff's senior role. The PCP recommended no prohibition order. The Secretary of State accepted this recommendation but upheld the publication of findings.

The Plaintiff seeks judicial review challenging the PCP's findings and the content of the TRA's guidance ("the Advice") issued paragraphs 21 to 31, arguing misinterpretation of the statutory provisions and irrationality in the PCP's conclusions.

Permission for judicial review was granted by a High Court judge on 23 February 2024.

Legal Issues Presented

1. Whether section 141B(1) of the Education Act 2002 should be interpreted as having two mutually exclusive limbs: (a) "unacceptable professional conduct" limited to professional conduct, and (b) "conduct that may bring the teaching profession into disrepute" limited to non-professional conduct.
2. Whether the second limb of section 141B(1) implicitly requires the conduct to be "serious" to qualify as conduct bringing the profession into disrepute.
3. Whether it is rational for conduct not amounting to "unacceptable professional conduct" to nevertheless be found as conduct that may bring the teaching profession into disrepute.
4. Whether the TRA's Advice is unlawful for failing to correctly reflect the proper interpretation of section 141B(1), particularly regarding the seriousness and professional nature of conduct under each limb.

Arguments of the Parties

Plaintiff's Arguments

• The PCP misconstrued section 141B(1) by failing to treat its two limbs as mutually exclusive categories, with the first limb limited to professional conduct and the second to non-professional conduct.
• The second limb implicitly requires the conduct to be "serious," and the PCP erred by finding conduct under this limb despite concluding it was not serious under the first limb.
• The PCP's conclusion that conduct not amounting to unacceptable professional conduct could still bring the profession into disrepute was irrational.
• The TRA's Advice is unlawful as it does not properly explain that unacceptable professional conduct concerns professional conduct only, nor that conduct bringing the profession into disrepute must be serious and non-professional.
• Consequently, the Secretary of State's decision should be quashed, and reliance on the Advice ceased.

Defendant's Arguments

• The Plaintiff's interpretation imposes a rigid and unsupported partition not found in the statutory language; the two limbs are broadly defined and may overlap.
• Unacceptable professional conduct requires seriousness ("falling significantly short of the standard expected"), but conduct bringing the profession into disrepute does not have an equivalent threshold, only that it may potentially damage public perception.
• The PCP's decision was rational in finding conduct not seriously unacceptable but still potentially damaging to public perception.
• The challenge to the Advice depends on the Plaintiff's interpretation being correct, which it is not.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory interpretation of section 141B(1) of the Education Act 2002, focusing on whether the two limbs—"unacceptable professional conduct" and "conduct that may bring the teaching profession into disrepute"—are mutually exclusive and whether both require a seriousness threshold.

The court found no express or compelling necessary implication in the statutory language for a rigid partition between professional and non-professional conduct as contended by the Plaintiff. The broad wording is purposeful, allowing a specialist panel to apply its expertise in determining whether conduct falls under one or both limbs.

The court rejected the Plaintiff's reliance on the Remedy UK case, distinguishing the statutory framework there from the present case, noting that the Education Act explicitly includes conduct that may bring the profession into disrepute as a separate limb.

Regarding seriousness, the court accepted that "unacceptable professional conduct" requires misconduct of a serious nature but found no statutory requirement that conduct under the second limb must also meet a similar seriousness threshold. The second limb requires only that conduct may potentially damage public perception.

The court emphasized the high level of deference due to the PCP, composed of experts, in applying its judgment to the facts. The PCP's finding that the conduct was not seriously unacceptable but could still bring the profession into disrepute was held to be rational and within its margin of appreciation.

The court also considered the TRA's Advice and found it consistent with the correct interpretation, though noting that if the Plaintiff's interpretation were correct, revision would be necessary.

The court rejected the argument that the PCP's approach was irrational, recognizing that lesser culpability may still cause reputational harm, justifying the second limb's application.

Finally, the court noted the practical and procedural difficulties and adverse consequences that would arise from imposing a rigid, mutually exclusive partition, supporting the broader, flexible interpretation.

Holding and Implications

The court DISMISSED the Plaintiff's claim for judicial review.

The holding confirms that under section 141B(1) of the Education Act 2002, the two limbs—unacceptable professional conduct and conduct that may bring the teaching profession into disrepute—are not mutually exclusive and do not require identical seriousness thresholds. Misconduct not sufficiently serious to be deemed unacceptable professional conduct may still amount to conduct bringing the profession into disrepute.

The PCP's findings and the Secretary of State's acceptance of the PCP's recommendation were rational and lawful. The TRA's Advice is consistent with the correct interpretation, and no revision is required unless the Plaintiff's rejected interpretation were to be accepted.

There are no new precedents set, and the decision primarily affects the parties by upholding the existing regulatory framework and the PCP's determinations in this case.