The High Court on school exclusions

On 2 September 2024, the High Court handed down judgment in The King (on the application of LM, AM) -v- An Academy Trust following an application for judicial review of a governing body’s decision (constituted locally within an academy trust) upholding a previous decision to maintain the permanent exclusion of a pupil. This followed an independent review panel decision to quash the original governor’s decision. 

This case is interesting, as we do not regularly get judgments covering the exclusions process. There are some key notable points which will support governance professionals, governors and senior leaders to reflect upon as we move forward in the new academic year. 

Facts

The case arises out of the decision of a Headteacher to issue a permanent exclusion dated 2 November 2022. It had been determined that the pupil, TM, had committed “acts of sexual violence and harassment towards other students on and off the school premises.” The allegations included touching another male pupil’s genitals and engaging in misconduct by touching a female student inappropriately, making threats toward the female if she did not hug him and also making sexually explicit remarks regarding other female pupils. The Headteacher decided that there was evidence of “significant and persistent breaches of the school’s rules.” It was for this reason that the Headteacher was satisfied a permanent exclusion was warranted. It was also noted that a managed move had been considered but ultimately ruled out as a possibility.

As the matter was one of a permanent exclusion, the governors were required to engage in a mandatory review of the Headteacher’s decision. The parents exercised their right to be represented by a barrister at the governors’ review meeting. During that meeting, the parents’ barrister cross examined the Headteacher regarding the decision taken and the process leading to it. Upon the conclusion of the review, the governors were satisfied that there had been persistent breaches and a serious breach of the school’s behaviour policy. There were satisfied that sexual abuse and harassment had been proven. The decision of the governors had been reached on the balance of probabilities (the civil standard of proof), having considered a range of evidence including witness statements and CCTV evidence. TM was present with his parents and the barrister at the meeting. It was recorded that TM was in “complete denial of his actions” and had taken the view that the actions which he was accused of undertaking were acts of banter.  

Following the governors’ determination that the Headteacher’s decision should be upheld, the parents exercised their right to have the governors’ decision taken forward to an independent review panel (“IRP”). Following a hearing before the IRP on 24 January 2023, with a further remote hearing being held on 11 May 2023, the IRP determined, by a majority vote, to quash the decision of the governors and to direct the governing body to consider TM’s reinstatement. In the outcome letter issued by the IRP, there were several criticisms of the governors’ decision. Without repeating those verbatim from the judgment, some of the key criticisms were as follows:

• the governors had failed to provide sufficient detail when giving their reasons to all the parties to enable them to understand its conclusions;
   
• there was a lack of exploration as to why alternative provision was not an option;
   
• the governors had acted unreasonably in failing to record, in their minutes or decision, why the panel had been satisfied/tested the qualifications and capacity of the Headteacher to investigate this complex case single-handedly or the school’s effectiveness in meeting the standards as set out in the statutory guidance ‘keeping children safe in education’;
   
• there was concern raised about the absence of a risk assessment process being underway following earlier allegations made against TM;
   
• concern was raised over a number of roles undertaken by the Headteacher in investigating and being the decision-maker for TM’s exclusion, in addition to the role undertaken in preparing the witness statements taken from pupils with the absence of any exploration by the governors about the authenticity of each statement;
   
• it was not good practice to have the majority of parent Governors sitting on the reviewing panel due to the potential for there to be a conflict of interest arising; and
   
• the parents have been denied access to relevant CCTV footage before the governors met, with the school taking an over cautious approach to the release of information which had the potential to deny justice. 

As is required, following the direction issued by the IRP, the governing body arranged for a reconstituted disciplinary committee of the governing body (“the RGDC”). The RGDC consisted of three different governors who undertook the reconsideration. During that process, the RGDC had access to the relevant papers from the original governors’ review, further submissions made by the parents, and the findings of the IRP.  

The RGDC concluded that the Headteacher had been entitled to find, on the balance of probabilities, that the incidents had occurred as alleged, and that the behaviour was serious and persistent in breaching the school’s behaviour policy. Furthermore, the RGDC accepted that the Headteacher had sought to arrange a managed move, but this was unsuccessful and was not likely to be feasible in the circumstances. The RGDC conceded that the collection of evidence in some areas could have been better, however they did not conclude that these issues detracted from the evidence to the extent that it was unreasonable to rely upon it. The RGDC also accepted that there had been some shortcomings in dealing with support and protective actions for TM, along with other pupils, by way of a formal risk assessment but that this did not alter the support actually offered to TM nor the seriousness of the incidents which had arisen. 

The parents issued an application for judicial review on 2 October 2023, seeking permission to review the reconsideration decision of the governors. Whilst the application was initially rejected on a paper consideration, after a request for an oral permission hearing held on 19 March 2024, the Court granted permission for the case to proceed. Six grounds were advanced by the parents for their claim which were:

1. the governors’ findings of fact were irrational and unclear;
    
2. the governors acted irrationally and contrary to the statutory guidance in deciding that it could decide to upheld the Headteacher’s decision without obtaining a risk assessment;
    
3. the governors acted unreasonably by not seeking further evidence in relation to the authenticity of the pupils’ statement and how independently they had been obtained;
    
4. the governors acted irrationally in concluding that permanent exclusion was a last resort in the absence of evidence that alternatives had been properly explored;
    
5. the governors acted procedurally improperly by not allowing the parents (nor TM) to make oral representations before the reconsideration panel; and
    
6. taken together the foregoing establishes that it was not possible for the governors, on a paper-based review of the materials, to uphold the Headteacher’s decision to permanently exclude TM.

The High Court rejected all grounds and dismissed the case. Some of the key takeaways from the judgment in relation to the arguments advanced are as follows:

• The statutory guidance for suspensions and permanent exclusions sets out that for there to be a permanent exclusion (under paragraph 11) there needs to be either a serious breach or persistent breaches [of the school’s behaviour policy] to justify permanent exclusion. The judge noted, in this case, it had been found that both serious and persistent breaches were present and that the governors were entitled to agree with the Headteacher that, taken together, these allegations against TM sufficiently justified permanent exclusion. Many readers will know that permanent exclusion cases are more likely to be subject to scrutiny by an IRP rather than judicial review. What is interesting in this case is that the Court accepted that there could be an argument that both serious and persistent breaches could be taken forward at the same time. Historically, the position at the decision-making stage is that there must be one route identified by the Headteacher, given the language used in the statutory guidance.  This judgment appears to suggest that, even in light of that language, it is still permissible to conclude that permanent exclusion is necessary where there are serious and persistent breaches. Our view is that caution should still be taken at the outset to ensure that the right evidence is collated, and relevant information placed before governors before taking matters forward. It is always open to a Headteacher to set out on a persistent breaches that there have been breaches which amount to serious breaches of the school’s behaviour policy. Remember, is not mandatory that a serious breach must result in a permanent exclusion. A persistent breaches case can included moderate and serious breaches. The guidance is designed to allow for a singular breach which is of sufficiently seriousness to warrant permanent exclusion on its own facts. 
   
• The judge rejected the argument that the governors had acted irrationally because they had not obtained a risk assessment before upholding the Headteacher’s decision. The judge took the view that the governors were entitled to accept the Headteacher’s submission that had been made at previous stages regarding the approach taken to risk assessments. This included a dynamic assessment of matters, rather than a formal written assessment of the risks. Furthermore, it was noted that keeping children safe in education did provide guidance around the approach to take when a pupil had engaged in sexualised behaviours, but the statutory guidance on suspensions and permanent exclusions did not require, as a prerequisite, that a formal risk assessment be in place before a decision to exclude could be taken. Headteachers should be mindful of their obligations across the various statutory guidance that apply to the operation of their school when managing behaviours. Whilst the Judge’s finding is useful, there should still be due consideration of risk assessments and refreshing them as part of the overall behaviour management when dealing with issues that are persistent or increasing in severity. By doing so, the Headteacher can demonstrate that there has been a considered and rational approach taken over a period of time. However, some issues are time critical and therefore it should be noted that the Court was not of the view that governors needed to assure themselves that a formal risk assessment was in place before any decision to permanently exclude could be taken.
   
• The Court noted that the governance role on reconsideration was to assess the evidence up to the point of the reconsideration. Whilst the RGDC was entitled to entertain additional evidence, if it was desirable, there was no obligation to invite further submissions from any other parties or the excluded pupil. It was noted that throughout the process the parents had been legally represented and there had been a fair opportunity for TM to put forward his voice. On exploring alternative provision, the Court accepted that the governors’ view that the Headteacher had considered alternative provision through making enquiries as to whether a managed move could be arranged. However, in the circumstances, as a managed move requires the consent of all the parties, it is a logical step to gauge whether a receiving school would be forthcoming when considering the facts of the case and the pupil. The evidence put before the governors by the Headteacher was that consent from a receiving school would not be secured. 
   
• The Court also noted that, whilst the IRP’s findings were binding on the parties upon reconsideration, the RGDC did not have to accept the IRP’s findings in their entirety. What was binding was that the previous governors’ decision had been quashed and there was a direction to consider reinstatement. That had to be accepted and complied with in accordance with the statutory guidance. The RGDC’s role was to undertake a fresh reconsideration in light of the matters that had taken place up to that point. This included the evidence put before the original governors’ panel, the IRP proceedings and its outcome and, to the extent it has accepted any further evidence, any evidence that was before them at the time of the meeting to undertake the conscientious reconsideration. This issue arose because the outcome of the RGDC’s reconsideration did not accept the criticisms levelled in all aspects and the governors, through their response, justified why they had taken that position. It is therefore important to note that governors do have the freedom at reconsideration to depart from findings reached by the IRP. The IRP is not entitled to substitute the decision or direct that a particular decision be taken by governors on reconsideration. If governors pay due attention to all issues raised and conscientiously address those with reference to the evidence base before them, they will have undertaken and discharged their obligations under the statutory regulations.

Schools and their governing boards should use the findings in this case to give confidence to the approach they take. Over the past academic year, there have been several adverse decisions reached by IRPs which in some areas have adopted approaches which do not reflect the legal framework that applies to the decisions they take. This case highlights that, even if such adverse decisions are taken by the IRP, it is still within the gift of the governors to determine how the case will go forward following reconsideration. Reinstatement ultimately sits with governors within the exclusion process. Further, governors will be entitled to reach the findings that they believe are justifiable on the evidence put before them.  

It is also a useful judgment in the context of training for panels at governor or IRP level to enable those that are making decisions (and those that advise them) to apply themselves to the applicable concepts in public law which must be addressed as part of the outcome. The issues of irrationality (unreasonableness) and procedural fairness are often addressed in an incorrect manner, devoid of reference to the actual legal test which applies. It is certainly not impossible for either a Headteacher or a panel of governors to act irrationally or adopt an unfair procedure. However, caution must be applied when making such a finding given the high threshold for irrationality. Furthermore, their needs to be something substantial which undermines the quality of the decision-making process before reaching a conclusion that there has been an unfair procedure followed which would warrant an adverse finding. 

Joe Orme-Paul is a partner at Hill Dickinson.