Defending legal challenges to school exclusions

The High Court recently dismissed a judicial review challenge to a school exclusion decision. Alex Line looks at the lessons to be learned from the ruling.

The case of A Parent v Governing Body of XYZ School concerned A Pupil, who had been permanently excluded from a maintained school for sending obscene images of a sexual nature to a younger female pupil from his mobile phone. This was against a background whereby the female pupil had made disclosures alleging serious sexual misconduct towards her by a number of pupils, including A Pupil, which had been referred to the police for investigation. The Head Teacher’s decision to exclude had initially been upheld by the school’s governing body. A Pupil’s parent then exercised her right of appeal to an Independent Review Panel (‘IRP’). The result of the appeal was that the IRP recommended that the governing body review its decision – but did not exercise its stronger power to quash the decision, applying judicial review principles, and direct a reconsideration. The matter then went back to the governing body, who performed a reconsideration, the result of which was to confirm its original decision to uphold the permanent exclusion. A Pupil’s parent then judicially reviewed that decision.

The case was understood by the parties to be the first detailed consideration of the school exclusion regime applicable to mainstream schools, academies, and PRUs, in England since the case of R(CR) v Independent Review Panel of the London Borough of Lambeth [2014] EWHC 2461 (Admin) (in which I acted for the Claimant). Furthermore, to the knowledge of the parties, it is the first reported decision concerning a judicial review of a governing body’s decision following a recommendation or direction from an IRP for a reconsideration to occur. Aside from the fact that it is a recent judicial consideration of the legal regime relating to school exclusions, the case is of importance to school governors, IRP panel members, local authorities, clerks advising IRPs, and lawyers advising in the area of school exclusions because:

1. It considers the interaction between the DfE’s school exclusion guidance, and the DfE’s Keeping Children Safe in Education Guidance, in particular relating to the extent to which it is necessary for a school to undertake safeguarding risk assessments – which is likely to be relevant in exclusion cases concerning complex allegations giving rise to child safeguarding concerns. It also considers the extent to which a school is able to depart from statutory guidance, in this case in relation to the requirement to undertake a risk assessment.
2. It provides guidance as to the nature of the functions that a governing body must perform when undertaking a reconsideration following a recommendation or direction to do so from an IRP. It also shows that the difference between the IRP's powers to quash and direct a reconsideration, and to recommend a reconsideration, is a material one in law.
3. It addresses the law relating to bias and predetermination, and demonstrates the high threshold that a claimant will need to pass in order to show that a governing body’s decision should be vitiated on these grounds.
4. It also demonstrates the high threshold that a claimant will need to pass in order to persuade a court to interfere with a governing body’s decision on irrationality grounds.

The case also gave rise to interesting arguments concerning the nature of a governing body’s powers when performing a reconsideration because, by the time of the reconsideration in this case, A Pupil was too old to be attend the school, making reinstatement impracticable. However, because the claim was dismissed, the Court did not consider it necessary to reach a conclusion in relation to the same.

Alex Line is a barrister at Outer Temple Chambers specialing in the areas of employment and education law. He represented the successful defendant in this case.