Exclusion Decisions – schools must show their working (The King v Lift Schools)

The decision is of particular note, being an uncommon instance of the Administrative Court giving a substantive judgment reviewing a school’s decision to permanently exclude a pupil. It provides important clarity on the correct approach to be adopted and should therefore be of significant interest to those involved in making such decisions.

This Judicial Review concerned a 10-year-old boy who had complex SEND. The pupil was permanently excluded from the respondent Academy school after bringing a blunt, replica “training” butterfly knife into school (which the court found to be used to practise dynamic manipulation tricks). During an altercation, the pupil handed another pupil the knife, who then used it to mimic stabbing a third child, although without injury.

The principal permanently excluded the pupil for a “one-off serious breach” of the school’s behaviour policy and stated, without further explanation, that his return would “seriously harm the education or welfare” of the Pupil or others. The Governors’ Disciplinary Panel (‘GDP’) upheld the decision as “proportionate, rational, reasonable and fair”, albeit without providing its reasoning. The pupil’s mother sought review by an Independent Review Panel (‘IRP’) which subsequently upheld the GDP’s decision by a two-to-one majority, despite expressing concerns about the lack of recorded minutes to demonstrate that the GDP had carried out the required “anxious scrutiny” of the case. The mother then pursued a judicial review of the GDP’s decision.

The Legal Framework Surrounding the Decision

The statutory scheme for permanent exclusion from an Academy involves up to four stages under section 51A of the Education Act 2002 and the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (‘Regulations’). First, the principal decides whether to exclude the pupil. Secondly, the GDP considers whether the pupil should be reinstated, and may reinstate if considered appropriate. Thirdly, if requested, an IRP will review the GDP’s decision by applying judicial review principles and may uphold the decision, recommend reconsideration, or quash it and direct the GDP to reconsider the matter. Fourthly, the GDP must reconsider its decision afresh.

Statutory guidance ‘Suspension and Permanent Exclusion from Maintained Schools, Academies and Pupil Referral Units in England’ (‘Guidance’) provides that permanent exclusion is only justified where two conditions are met:

1. There has been either a serious or persistent breach of the school’s behaviour policy, and

2. Allowing the pupil to remain at the school would seriously harm the education or welfare of the pupil or others (such as staff or pupils).

When reviewing a decision of the GDP, the court observed that it must closely scrutinise the GDP’s contemporaneous reasoning with regard to the above matters, whilst avoiding taking an overly legalistic or technical approach as to how that reasoning has been expressed.

Proportionality of the decision to exclude

The decision to exclude was first challenged on the ground that the GDP was required to consider the proportionality of the decision to exclude with regard to the ‘serious harm’ condition. The court found that the wording of the Regulations appeared to envisage a proportionality assessment in requiring the interests of the pupil affected to be weighed with those of others in the school community in making the decision. Moreover, it observed that the Guidance expressly provides that the headteacher’s decision must be proportionate.

In particular, the Guidance provides that permanent exclusion must be the last resort where no measure short of that would suffice to protect against the risks of serious harm identified. Therefore, permanent exclusion would be unwarranted unless the school was satisfied that both pre-conditions had been met (serious or persistent breach of the behaviour policy and risk of serious harm), where no lesser measure could afford necessary protection and where the interests of the pupil in being able to return are outweighed by the countervailing interests of that pupil or the school community in being excluded; otherwise the GDP must direct reinstatement. In its analysis the court observed that exclusion was therefore legitimately only a protective rather than a punitive measure.

Applying those principles, the court found that neither the decision letter of the principal nor the GDP contained any meaningful reasoning, merely asserting that the threshold conditions for exclusion had been met. It provided helpful guidance as to the questions a principal/GDP should ask and, importantly, provided a reasoned assessment of:

1. The nature of any contemplated serious harm were the pupil in question reinstated.
2. The degree of likelihood of such harm occurring.
3. The degree of harm likely to be caused to the pupil if permanently excluded, and taking account of their particular circumstances (including SEND and their potential impact on successfully transitioning to another school).
4. Whether alternative measures (such as a fixed-term exclusion) would sufficiently mitigate the risk of serious harm identified.

The court concluded that the GDP had reached no clear conclusion on these critical issues. It had not examined whether the blunted, replica knife was in fact intrinsically dangerous at all, and so reference to a “potential stabbing” appeared an unjustifiably dramatic description. Nor had the GDP considered the extent of the pupil’s intent or understanding in bringing it to school (he might have viewed as nothing other than a toy). The court was also critical of the GDP’s apparent reliance on the fact that the pupil did not appear to be experiencing dysregulation at the time of the incident. First, it noted that dysregulation may still have affected the pupil’s decision to bring the knife to school in the first place, and his understanding of the consequences of that. Moreover, the issue of a pupil’s accountability for their actions could be of only limited relevance where the legitimate purpose of exclusion was to protect rather than punish.

The court therefore concluded that it had no grounds to assume, had the GDP properly considered all relevant matters, that it would have reached the same conclusion that permanent exclusion was appropriate. The decision to exclude was therefore quashed.

Inadequate Reasons

The further ground of challenge concerned the giving of inadequate reasons in the decision, although the court found that consideration of the proportionality ground highlighted that the reasoning was plainly inadequate.

The court nevertheless stressed the independent importance of giving adequate reasons; not only to enable affected individuals to understand and, where appropriate, challenge a decision, but also to reassure them that their case has been considered fairly and conscientiously. This latter consideration was of particular significance in the context of pupils from minority backgrounds or who have previously faced discrimination, where a lack of clarity may imbue a lack of confidence in fair treatment.

Implications for schools

This decision helpfully clarifies what issues schools must address and confirms that contemporaneous records and clear written reasons are essential when considering permanent exclusion. Importantly, the decision must demonstrate that any contemplated serious harm is real and not illusory, and that the application of all lesser measures has received proper consideration before imposing permanent exclusion as the last resort. An inadequately reasoned decision cannot be remedied before an IRP. Particular consideration should be given to SEND factors.

Schools must embed a structured, evidence-based proportionality assessment throughout the exclusion process, from the headteacher’s initial decision to the GDP’s deliberations and decision letter. Properly reasoned decisions are central not only to the legal defensibility of exclusion decisions but, as the court observed, they are critical to instilling confidence in the process. School decisions which evidence rigour and fairness are far less likely to incite challenge in the first place.

If you have any questions regarding the information discussed in this article, please contact Martin Jensen and James Stretton.