51 Interim Prohibition Orders (IPOs) were imposed by the Teaching Regulation Agency in 2018 -19. The process is both swift and punitive but also (we think) unfair and probably unlawful. The TRA allow only 10 days to gather your evidence and submit your response. The IPO usually has the effect of stopping a teacher’s career in its tracks. The teacher cannot carry out any teaching work except under close supervision (and there is only one instance we know of for that ever happening). Being unable to teach may amount to a frustration of the teacher’s employment contract and risks a school dismissing a teacher for that reason alone.
The teacher cannot appeal this interim decision to a court. They must wait many months, often in reality years, before they can finally appear before the TRA’s professional conduct panel and try to establish either their innocence or mitigation for the misconduct. In the meantime their reputation and livelihood is trashed, possibly deterring supportive witnesses and referees from assisting.
An IPO is therefore a judgement without a trial. As such, in our view the summary, paper-only process by which it is made by the TRA is not compliant with Article 6 of the ECHR, and it has yet to be tested in the courts. In cases where there is high risk, such as admitted serious misconduct, or there is clear corroboration or a finding of guilt by another competent part of the justice system, such draconian action may be justifiable to protect children, but particularly where a teacher maintains their innocence it can be unnecessarily and disproportionately catastrophic.
We have a good track record of making successful representations against such orders. However in a recent case these were rejected and we had to take the matter further. This clarified the rights to review which exist within the TRA.
Our client was teaching in a new position. A number of historic allegations had been referred 14 months previously, one of which (a short inappropriate relationship with a former pupil when at a low point 15 years previously) was admitted. No IPO was considered necessary by the TRA on receipt of these allegations or his admissions. DBS had also looked at the case and decided to take no action. Then (as often happens) the case became delayed whilst the TRA’s lawyers searched for evidence to support the disputed allegations.
When we complained of the excessive delay, out of the blue the TRA issued a letter that they now intended to make an IPO. Their procedures allow them to do this at any time, even though no fresh evidence was disclosed. Those procedures also gave only 7 days to respond with representations and evidence refuting the need for that (it is now 10 days). We did this in a robust and detailed letter which showed why the guidance criteria for an IPO – contained in The Advice – were not made out. Then, in an extraordinarily poor decision, the TRA said they thought that because one inappropriate relationship had happened many years ago there was absolutely no reason why it wouldn’t happen again. Their decision maker also said there would be a loss of public confidence if there was no IPO now but a prohibition order at the end of the case. We considered both reasons manifestly illogical and unlawful; such factors do not even appear in the TRA’s own Advice.
As expected, the IPO quickly had the effect of a notice of termination from our client’s head teacher. A further concern was that page 19 of the above Advice guidance implies that an internal review only becomes available 6 months after the original IPO decision. If so, the only recourse at this point would be an expensive (and slow) judicial review in the High Court. However, we considered the TRA’s guidance was wrong on this point, and there is in fact a right to an immediate review internally, as was clear both from the wording of the decision letter and Regulation 14(3)(a) of the Teacher’s Disciplinary (England) Regulations 2012
We promptly wrote a letter before action under the Judicial Review Pre-Action Protocol challenging the merits of the IPO decision and also seeking confirmation that there was an immediate right of review. In response the Government Legal Department did admit there had been regrettable delays, that the case had not merited an IPO on first assessment and that in fact an external inquiry’s request for evidence had prompted the later decision. It conceded the TRA would conduct an immediate review by a different decision maker looking at any further evidence and therefore JR was unnecessary. This is an important concession to note as it is not clearly set out anywhere in the Advice or new Procedural Guidance.
Fortunately, we had advised our client for some time to be totally open with his current employers about the difficulties he found himself in, and to also tell others he had worked for and obtain testimonials from them, so this further evidence was already available. We submitted these along with a repeat of much of the earlier representations, and also including a current supportive reference from our client’s headteacher who was keen to have him back at work, confident that she had already risk-assessed him for his admitted misconduct and mitigated that risk appropriately.
The TRA then reconsidered their decision and lifted the IPO. Our client was able to resume work and is now awaiting progress of the case which is still, some 18 months after his initial referral, yet to complete the case-to-answer vetting stage.