Isolate to Educate? – High Court Rejects Legal Challenge Over School’s Disciplinary Measures

Judicial review challenges to a school’s internal disciplinary decision – as opposed to permanent exclusion – are fairly unusual. However, amidst a widespread consensus regarding an upward trend in disruptive and violent student behaviour since the Covid pandemic, such challenges may be more common as schools struggle to tackle the most challenging cases.

In the case of R. (on the application of EBB) v Gorse Academies Trust [2025] EWHC 1983 (Admin) (29 July 2025) the Administrative Court considered, and ultimately rejected, challenges brought on behalf of students who had been sanctioned through the repeated use of isolation. The key issue before the Court was whether the repeated imposition of the same sanction was of itself evidence of its ineffectiveness, and in turn the unreasonableness and unlawfulness of those sanction decisions.

Background

The case concerned three struggling students attending the John Smeaton Academy in Leeds (the ‘School’) – a secondary school operated by The Gorse Academy Trust (the ‘Defendant’). In 2019, prior to the Defendant assuming leadership, the School had been rated ‘Inadequate’ by Ofsted, notably on account of poor behaviours and attitudes to learning which were leading to the chronic underachievement of its students. The Department for Education intervened and appointed the Defendant, following which the School’s rating had risen to ‘Good’ in all areas by 2024, with Ofsted observing a “startling transformation”.

As part of that restructuring, a new Principal was appointed. To turn the School’s fortunes around, a new, highly detailed ‘Positive Discipline Policy’ (the ‘Policy’) was implemented which made provision for a range of encouragements/rewards and disincentives/punishments. One of the Policy’s sanctions – the most serious of its in-school sanctions – was that of isolation, which could be imposed for repeated lower-level poor behaviour. Students in isolation would spend the school day away from the classroom under close supervision, completing work in silence and with no opportunity to socialise. However, the Policy provided that isolation should be a positive experience for students, affording them an opportunity to receive “intensive support and guidance” to avoid a repeat of poor behaviour. As such, it served as a support mechanism as well as a penalty, acting also as a buffer stage to the more serious sanction of suspension.

All three of the claimants had frequently and seriously breached the School’s conduct rules, there being a number of instances of bullying, assault and substance abuse. Each had been extensively sanctioned in accordance with the Policy, with the School making frequent use of isolation to the extent that the claimants spent a very substantial proportion of the academic year away from the classroom either in isolation (together accruing around 1,000 hours) or on suspension. Sanctioning the students in this way was claimed to be unlawful and the parents brought judicial proceedings challenging the School’s approach.

The Claims

The proceedings did not challenge the lawfulness of the Policy itself, nor was it asserted that the Policy was not followed in each of the sanctioning decisions complained of. Instead, the focus was a challenge to the cumulation of sanctions where the claimants were isolated against a background of repeated, similar sanctioning. The claimants’ case was that, for them, isolation simply wasn’t working and was in fact contributing to their misconduct, leaving them “trapped in a destructive loop”.     

The challenge in the main concerned the interpretation and application of section 91 of the Education and Inspections Act 2006 (the ‘Act’). This section provides that the imposition of a disciplinary penalty by a school on a pupil short of permanent exclusion will be lawful where it satisfies three conditions. The specific condition in issue was that provided by s.91(3)(b) that the penalty be “reasonable in all the circumstances.”

S.91(6) further provides that reasonableness must be determined taking account of: (a) the proportionality of the penalty in the circumstances of the case, and; (b) any special circumstances relevant to its imposition on particular pupil, including in particular the pupil’s age, any special educational needs or any disability and any religious requirements affecting them.

The claimants challenged the lawfulness of the sanctioning on five grounds:

• Ground 1 – The decisions involved the breach of a statutory duty under s.91 due to a failure to consider whether repeatedly imposing isolation constituted a proportionate and otherwise reasonable punishment (what the Court referred to as the procedural duty);
• Ground 2 – The decisions were made without following the non-statutory guidance issued by the Department for Education in 2024, namely its ‘Behaviour in Schools: advice for headteachers and school staff’ (the ‘Guidance’);
• Ground 3 – The decisions involved the breach of the statutory duty under s.91 by imposing disproportionate and otherwise unreasonable disciplinary penalties under the Act (what the Court referred to as a substantive duty or duty of outcome);
• Ground 4 – The decisions involved the breach of the claimants’ right to private life under Article 8 ECHR and section 6(1) of the Human Rights Act 1998; and
• Ground 5 – The decisions in respect of one of the claimants involved an inflexible application of the Policy, particularly in relation to the child with SEND

The case came before the Administrative Court on a ‘rolled up’ basis, with the Court left to determine both the question of permission and the merits on the same occasion.

The Court’s Decision

The Court dismissed the claims on all grounds.

First, the Court considered Ground 1, this being the claimants’ contention that s.91 may render unreasonable, and therefore unlawful, the decision to impose an otherwise potentially lawful sanction where the particular decision has been made without individual, contemporaneous consideration of its proportionality to all the individual circumstances of the student in question; namely consideration of its likely impact and effectiveness and of any alternatives, and in this case on the cumulative effect of isolation.

The Court noted the absence of any explicit reference in s.91 to it imposing any specific duty on schools, observing that it was a provision concerned with placing limits on a school’s disciplinary powers rather than on imposing duties, and that there was no basis for inferring procedural duties under that section as to how disciplinary decisions are to be taken. Disciplinary decisions could therefore only be vitiated on a substantive rather than a procedural basis. In particular, the Court had regard to the fact that s.91 applies to all sanctions short of exclusion and that, to make sense of its provisions, “It has to map across to the everyday business in real life of dealing in the moment with the immediate facts of an infraction in the available context.”  In short, there was no suggestion that the section intended to impose a duty on a school that, in the case of considering the application of any sanction – however minor – there must be a wholesale consideration of the history of sanctioning the individual pupil in question in order to evaluate the reasonableness of the sanction proposed (and the Guidance was not evidence for there being such a duty). The Court therefore held that the challenge under Ground 1 did not even cross the threshold of arguability and declined permission on that basis.

As to the substantive challenge to the lawfulness of the sanctions pursuant to s.91 (Ground 3), the Court determined that it could consider this ground. Here, it was argued on behalf of the claimants that one of the ‘special circumstances’ required to be taken into account under s.91(6)(b) – in particular in assessing the proportionality of the further sanction proposed – was their individual disciplinary history. The contention was that the school’s history of disciplining the claimants, and the consequences of that, had to feed in to the overall assessment of what a reasonable, and hence lawful, sanction should be.

Whilst the Court found that the history of sanctioning may be a relevant circumstance to be taken into account in assessing the reasonableness of any particular decision, it did not accept that repetitive sanctioning had an inherent quality of potential unreasonableness. In fact, as per the Policy, persistent misconduct could be expected to be met with repeated and escalating sanctions. Accordingly, the Court determined to investigate the potential relevance of the repetitive nature of the sanctions applied by reference to the criteria of their impact and effectiveness, and to any suitable alternative measures.

On the issue of effectiveness, the claimants’ case was that repeated isolation was simply not working, as evidenced by its repeated imposition, the claimants’ repeated failure to adhere to the school’s behaviour requirements during periods of isolation, and to their persisting misconduct records. However, the Court found that the effectiveness of isolation in relation to any individual student has to be judged by “its contribution to a wider plan for developing their self-discipline and the social and learning skills on which their academic achievement is said to depend”, the effectiveness or success of which “will manifest itself over time in a gradual shift from sanction to reward, from misconduct to achievement.” The School provided evidence that two of the three claimants were already ‘turning a corner’ in a positive direction both academically and behaviourally.

Whilst a counter-argument was raised on behalf of the claimants that a reduction in sanctioning by the School was merely the consequence of the bringing of these proceedings against it, the Court found that the effectiveness of any particular sanction was ultimately a matter of professional educational judgment, it being but part of a “complex and multifactorial assessment of a student’s progress and the influences operating on it one way or another.” It went on to find that the question of whether any particular, repeated sanction is or is not effective, or working, for an individual student is “ultimately not severable from the question of whether any whole scheme of sanctions, or any wider behaviour and discipline policy, or any general educational ethos, or any school, is or is not working for them.” Whilst it doubted this was a justiciable question at all, the Court found no evidence that the claimants were not progressing because of the historical imposition of isolation.

As to the question of the impact of repeated isolation, the Court found there to be no factors indicating that the decision to isolate was having a special impact on the claimants personally which were capable of being weighed significantly in the balance against the otherwise reasonable application of the Policy. Whilst each gave evidence that they experienced isolation as “unproductive, unpleasant, stressful and distressing”, that simply reflected the penal nature of isolation.

What the case ultimately came down to was, in the Court’s view, the question of what possible alternative course was open to the School in dealing with these students? The only alternative offered in submissions on behalf of the claimants was ‘less isolation’. However, the Court found that such an approach had the potential to introduce inequity in the application of the Policy, to undermine the positive impact isolation was intended to have on the individual (including reducing the risk of repetitive failure in the classroom context), and to require classrooms to endure greater disruption. Moreover, regard had to be had to the fact that isolation was itself already an alternative sanction to that of suspension, offering an important alternative to removal from the school altogether. The Court observed that the cumulation of time spent in isolation has to be considered “not only through the negative lens of time out of the classroom, but through the positive lens of time in the School.” Isolation was a means of keeping struggling students such as the claimants in school education for as much time as possible so as to transition them back successfully to the classroom and avoid them progressing in the wrong direction. It protected them from more frequent periods of suspension and their “propulsive effect towards exclusion”.

The Court then considered Ground 2 (the application of the Guidance), noting that whilst it does not impose legal obligations, schools are expected to have regard to it. On the issue of isolation, the Guidance does provide that, when dealing with removing students from the classroom, headteachers should, on a case-by-case basis, consider “whether any assessment of underlying factors of disruptive behaviour is needed.” Moreover, it provides that students should not be removed from classrooms for prolonged periods of time without “explicit agreement from the headteacher” and that students should be given “extensive support to continue their education including targeted pastoral support aimed to improve their behaviour so they can be reintegrated and succeed within the mainstream school community.” This provision, the Court observed, in fact appeared to contemplate that good practice would at times involve students being isolated for significant periods of time, as had happened here. Whilst the Court readily accepted that the Guidance was a source of expectation that, in cases such as this with a significant cumulation of isolation, schools would consider their position strategically, it went on to find that the School had done precisely that in the case of the claimants; there were weekly meetings of its senior leadership team to review the cases of students in the higher tiers (those who had been suspended on one or more occasions, with monitoring being more intensive the higher the tier in which the student was placed) and to consider the impact of sanctions and any potential adjustments. Consideration would be given in particular to students who appeared to be ‘stuck’ in the upper tiers. Furthermore, the headteacher personally approved each period of isolation imposed, including each of periods imposed on the claimants which were challenged. Accordingly, the Court found that there was no basis upon which the School’s decision-making could be vitiated on account of any failure to comply with the Guidance.

The Court then dismissed Ground 4 out of hand – the claimants’ contention that Article 8 of the ECHR (respect for private life) had been engaged – concluding that there was “nothing in the Strasbourg or UK caselaw to which I was taken that supports the engagement of Art.8 with a school’s distinctively offered, accepted and applied disciplinary policy and practice in circumstances such as the present.” However, it observed that even if it had been engaged, the School’s intervention would plainly have been proportionate in order to maintain order and protect the equivalent rights and freedoms of other students and staff at the School.

Finally, Ground 5 was only pursued by one of the three claimants and the Court dismissed the suggestion that the School had applied the Policy in an “entirely mechanistic way”. Some students will struggle for longer than others, the Court observed, but absent a particular reason to do otherwise, the School could reasonably be expected to address persistent misconduct with the continued, consistent application of its Policy.

Commentary

This judgment is a welcome outcome for schools. It rejects out of hand the assertion that schools are under a procedural duty in deciding to impose any sanction on any occasion to conduct a contemporaneous, wholesale review of the history of sanctioning the student in question for that decision to be lawful. It reaffirms schools’ broad decision-making powers in managing student behaviour and, in rejecting the “unrealistically reductivist” approach adopted on behalf of the claimants as to the effectiveness of the sanctions imposed, respects the relative professional expertise of those making such decisions in what is a complex and multifactorial assessment of a student’s progress and what is working for them.

Nevertheless, the case does emphasise the importance for schools of being able to demonstrate careful adherence to the Guidance where students are removed from the classroom, particularly where they are subjected to extensive periods of isolation. Isolation is a sanction to be resorted to only in exceptional cases. Where schools do so they must be able to show that there has been senior and strategic overview on each occasion, and that they have collected data in order to monitor the effectiveness of the strategy. Moreover, prolonged isolation must allow for the continuation of education and be accompanied by extensive, targeted support to help student’s behaviour and reintegration to the classroom. Schools will therefore need to ensure that they can confidently demonstrate that their decisions in difficult cases have been made with proper regard to the Guidance in the event of challenge.

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