Curing an imperfect exclusion procedure: High Court guidance

Key takeaways

• 16-19 Academies are not required to comply with the DfE’s statutory guidance on exclusion: However, procedures still need to be fair, rational and transparent.
• An effective de novo appeal process can cure procedural irregularities at the decision-making stage: Appeals must allow adequate opportunity for the parties to engage and decision makers to consider the issues raised.
• The Administrative Court continues to set a high threshold for irrationality: The College in this case was entitled to take a holistic view of the pupil’s behaviour.

Our Education team is pleased to have secured a significant ruling for its client, BePart Educational Trust (the Trust), in a judicial review claim brought against it by a former pupil. In the judgment, the High Court considered a permanent exclusion from a 16-19 academy and a subsequent attempt by the Trust to cure procedural imperfections within the original exclusion process.

In this article we consider some of the arguments raised in the case and highlight some of the key takeaways for academy trusts, particularly in relation to the treatment of the permanent exclusion process for further educational provisions and the ability to ‘cure’ a flawed procedure.

Legal framework

The Trust operates a 16-19 academy (the College). The College operates outside the statutory exclusions regime (the Department for Education’s ‘Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’). The College instead maintains its own Student Disciplinary Policy (SDP). The policy distinguishes between ‘misconduct’ (any breach of a Core College Requirement) and ‘gross misconduct’ (which includes persistent breaches of the Core College Requirements).

Though the DfE guidance was not applicable, it was common ground that the College was required to act fairly towards the Claimant (NBT) and to have regard to the principles of natural justice.

Background

The background to this matter involves behaviour incidents and exclusion processes spanning between October 2025 and March 2026. NBT was first suspended in October 2025 for disruptive and intimidatory behaviour. Following a further incident in November 2025, NBT was again suspended for hostile and intimidating behaviour. The College considered these incidents to form part of a wider pattern of persistent breaches of the SDP. NBT was permanently excluded on 2 December 2025 (the December Decision) by the Assistant Principal, a decision which NBT appealed.

The appeal was heard by the College Principal. Although the Principal did not formally uphold the appeal, he offered NBT an opportunity to return to College on a conditional basis, subject to improved behaviour and a structured reintegration plan. The Principal made clear that if NBT did not comply with these conditions then he would reinstate his exclusion and would not consider an appeal.

NBT returned in January 2026, but behaviour breaches persisted. Ultimately, the Principal reinstated the permanent exclusion on 27 January 2026 without further appeal (the January Decision). Judicial Review proceedings were commenced shortly thereafter with minimal time afforded to deal with the matter under the applicable pre-action protocol.

Following the issue of judicial proceedings, the College offered an appeal to the January Decision, which would be heard by a panel of College governors. On 5 March 2026, the panel met to consider the appeal. The meeting was treated as a ‘de novo’ appeal, meaning that the panel considered NBT’s conduct as a whole, alongside submissions from him and his family regarding his EHCP, reasonable adjustments, and the proportionality of exclusion (the March Panel). In essence, it was a full merits hearing as opposed to a review of the January Decision alone. The governors ultimately upheld the permanent exclusion, finding a sustained pattern of breaches of the SDP despite extensive intervention, insufficient evidence of likely improvement and a need to protect the wider College community. They concluded that permanent exclusion was justified under the SDP.

The Claimant remained dissatisfied with the outcome and process so proceeded with the claim.

Grounds 1 and 4: an alleged breach of procedural fairness/natural justice and ultra vires/misuse of power

NBT asserted that the January Decision was a fresh decision, procedurally unfair and contrary to the College’s SDP. It was asserted that the Principal had no power to depart from the SDP in this way and that NBT’s submissions had not been properly considered as part of the decision-making process.

The College argued that NBT had received a fair procedure and the Principal’s decision to allow NBT to return in January went above and beyond the process outlined in the SDP. This was done to achieve a legitimate and lawful pedagogical goal, to make one last attempt to allow NBT to continue at the College. It was, therefore, entitled to reinstate the permanent exclusion without a further appeal.

The Court here agreed that the effect of the December Decision was to reverse the permanent exclusion, regardless of how this was framed by the Principal. The conditions attached to the Claimant’s return to the College curtailed his rights under the SDP. The Principal had no power to attach them, and this was found to be ultra vires.

The reintegration terms were a denial of natural justice. What was expected of the Claimant was too vague for him to know whether he was meeting the condition and the terms did not give him an opportunity to make any representations about whether or not he had done so.

Finally, the January Decision was therefore a fresh one. It did not follow the SDP and was unfair, in particular because, before that decision was made, the Claimant had no opportunity to be heard.

Curing the defects

It was advanced by the Trust that, even if the judge found fault with the January Decision, any defect was cured by the March Panel appeal process. It was a thorough a de novo appeal which considered the rights and wrongs of the exclusion.

NBT argued that the March Panel did not cure the deficiencies with the original decision because NBT still did not have adequate information about the case against him to adequately address it. In addition, it was argued that a de novo appeal was not the correct approach, and the governors should have confined their consideration to the January Decision.

The Court held that the March Panel, in essence, cured the defects in the December and January Decisions. It was entitled to look at the whole history which led to the permanent exclusion. In addition, the governors fully engaged with NBT’s mother’s written and oral submissions and that this constituted a fair hearing.

Ground 3: irrationality

NBT asserted that the Principal’s decision both in relation to the December Decision and the January Decision was irrational and disproportionate. It was argued that the behavioural incidents in January were minor in nature and that NBT’s anxiety and his special educational needs were not adequately considered.

The College disputed the characterisation of the matters which occurred in January 2026 as minor. The College was entitled to see these issues in the context of what had gone before and it was not irrational of them to take a more serious view. The College asserted that NBT’s special educational needs and his medication were issues considered as part of the decision making process.

The Court reiterated that the bar for intervening in the College’s decision on the grounds of irrationality is a high one. It felt the SDP was clear both in its expectations of students and in the sanctions available if those expectations are not met. The College was entitled to view the incidents in January as part of NBT’s history and as evidence that things which had led NBT to the brink of exclusion were not going to change. The decision was found to be rationale and proportionate.

Outcome

Despite the procedural issues surrounding the December and January Decisions, NBT’s claim was dismissed. The March Panel effectively cured the defects from the previous decisions and the Court did not accept NBT’s decision to make a standalone declaration that these processes were unlawful. The procedure of permanent exclusion and review needed to be viewed holistically, as one process, and any unfairness was addressed at the appeal stage.

What impact does the judgment have?

The judgment provides further clarification about the exclusion process, particularly in 16-19 academies. Of particular note to academies and governance professionals will be the following:

1. 16-19 Academies are not required to comply with the requirements of the DfE’s statutory guidance on exclusion. However, the procedures still need to be fair, rational and transparent for an exclusion to be lawful.
2. an effective de novo appeal process can cure procedural irregularities at the decision making stage. Appeals must allow adequate opportunity for the parties to engage and for the decision makers to diligently and robustly consider the issues raised.
3. the Court continues to set a high threshold when determining whether a decision to permanently exclude a pupil is irrational.

While this case covered an exclusion outside of the statutory exclusion guidance, there is scope for a similar approach to be taken in mainstream schools and pupil referral units. The path is more well tread and defined under the statutory guidance, so careful consideration of the issues on a case-by-case basis will be called for.

Joe Orme-Paul is a Partner, Liam Ellwood is a Senior Associate and India Hall is a Trainee Solicitor at Hill Dickinson.