Court of Appeal rejects appeal over permanent exclusion, warns undue focus on public sector equality duty may risk “over-legalising” decision-making process

The Court of Appeal has dismissed an appeal brought on behalf of a 15-year-old boy, rejecting the submission that the decision to permanently exclude him from school was unlawful because the headteacher “failed to comply with the public sector equality duty (PSED)”.

In Tza, R (On the Application Of) v A Secondary School (Rev1) [2025], Lord Justice Underhill noted that there had been some discussion in the course of the hearing about how much scope there really was for the PSED to affect individual (permanent) exclusion decisions. 

He said: “It is one thing to say that, in the light of the disproportionate exclusion rates for high-risk pupils, [the PSED] requires schools to consider early intervention and other policies for such pupils which may reduce the risk of them behaving in a way which may lead to exclusion.

“But the situation is different where such behaviour has in fact occurred, and the school is having to decide whether a pupil should be permanently excluded. That will, as the Guidance makes clear, only be being considered as a last resort, and where allowing [the pupil] to remain in the school would cause serious harm.”

Lord Justice Underhill said he saw some force in that point. “There will certainly be cases where the seriousness of the pupil's conduct and/or the harm to the school of allowing them to remain will be such that it can make no difference that they belong to a high-risk group or that they may have received inadequate support in the past. It may be, if schools truly treat permanent exclusion as a last resort, that those cases will be the great majority.

“However, it would be wrong to treat the two-fold test as entirely definitive or entirely hard-edged. For one thing, it sets a minimum threshold for permanent exclusion: it does not say that in every case where it is met the pupil must be excluded. For another, "serious" is an imprecise term requiring a judgment by the decision-maker which can properly involve considerations of proportionality and extenuating circumstances. For a third, we are concerned with guidance rather than legislation.

“There is therefore room in principle for schools to take into account the fact (if established) that a pupil has received inadequate support in the past, though the extent to which it can make a difference will depend on the circumstances of the case.”

The Court of Appeal judge added that, although the PSED may in that way be engaged in the taking of individual exclusion decisions, he was not sure how much it added as a matter of substance to the considerations which a school would have to take into account in any event.

“The high-risk groups identified in para. 21 of the Guidance do not consist only of pupils with protected characteristics within the meaning of the [Equality Act 2010]; and if in breach of para. 22 such a pupil has received inadequate support in the past that would in principle be a relevant factor in an exclusion decision irrespective of the PSED. I say this not in order to downplay the importance of the PSED generally but because I am concerned that an undue focus on it may risk over-complicating, and over-legalising, the decision-making process in exclusion cases.”

The case concerned a 15-year-old boy, “TZB”, who is of black Caribbean heritage and has special educational needs (SEN).

The claim was brought by his mother, “TZA”, who challenged the Disciplinary Committee of the Governors of the School (GDC)’s reconsideration decision.

Underhill LJ summarised the formal steps in TZB's exclusion as follows:

(1) The exclusion decision. By letter in May 2021 ("the exclusion letter") the headteacher of the school notified the Claimant of her decision to exclude TZB permanently with immediate effect as a result of his involvement in two separate assaults on fellow students.

(2) The first GDC decision. The effect of regulations 23-24 is that in the case of a permanent exclusion the governors are required to consider whether the pupil should be reinstated. At a meeting in June 2021 the Disciplinary Committee of the Governors of the School ("the GDC") decided that TZB should not be reinstated.

(3) The independent review. Regulation 25 provides for the establishment of an independent review panel established by the local authority ("an IRP"), which may either uphold a decision by the governors not to reinstate a permanently excluded pupil or recommend that they reconsider it or quash it and direct a reconsideration. The Claimant applied for the GDC's decision to be reviewed, and an IRP held a hearing over two days in January and March 2022. By a decision in late March, it declined to quash the GDC's decision but identified some concerns about its reasoning and recommended a reconsideration.

(4) The GDC's reconsideration. The GDC reconvened in July 2022 in order to reconsider TZB's exclusion in accordance with the IRP's recommendation. It decided to confirm its original decision.

The mother challenged the lawfulness of the reconsideration decision in the High Court on two grounds:

(A) Breach of the Public Sector Equality Duty. She contended that the original exclusion decision was unlawful because the headteacher had failed to comply with the public sector equality duty prescribed by section 149 (1) of the Equality Act 2010; and that the GDC's reconsideration decision was wrong in failing to find such a failure and to reinstate the Claimant accordingly.

(B) Inadequate reasons. The Claimant contended that the reconsideration decision was inadequately reasoned in that it did not properly address the matters of concern raised by the IRP.

Upper Tribunal Judge Church, sitting as a High Court judge, dismissed both grounds.

Underhill LJ said: “The asserted significance of the PSED in the present case starts from the fact that there is, as appears from para. 21 of the Guidance, clear evidence that exclusion rates are disproportionately high for pupils of Caribbean ethnicity or who have SEN. The statement in the Guidance was reinforced by evidence adduced by the Claimant in the present case. The Judge said at para. 62 of his judgment:

"The Claimant presented substantial and compelling statistical evidence relating to the over-representation, both nationally and locally, of those with protected characteristics such as TZB's among those who are permanently excluded from school. [Counsel for the claimant] emphasised that issues of intersectionality, or layering of disadvantage, meant that the impact on those who, like TZB, had multiple protected characteristics, was further amplified.”

“[…] The central plank of the Claimant's case is that the exclusion letter does not include any express reference to the PSED.”

Turning to the first GDC Decision, Underhill LJ noted that the role of the governors in considering whether to reinstate a pupil who has been permanently excluded is governed by regulation 24. He said: “The effect of paragraphs (1) and (2) is that where the headteacher has permanently excluded a pupil, the governors must decide whether or not the pupil should be reinstated.”

Section 6 of the Guidance covers the decision whether to reinstate. Para 71 reads:

"In reaching a decision on whether or not a pupil should be reinstated, the governing body should consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking account of the head teacher's legal duties and any evidence that was presented to the governing body in relation to the decision to exclude."

The meeting of the GDC to consider whether to reinstate TZB took place in June 2021.

A friend, "KM", who acted as TZB and his mother’s representative, emphasised that "it was important for the Governors to consider the Equality Act in their deliberations": TZB had protected characteristics and "how these characteristics had been protected was not demonstrated in the decision letter".

Governors discussed the support provided by the school. It was agreed that the school had “followed the DfE guidelines and offered every support that it could reasonably be expected to provide”.

It was agreed that the school's policy on exclusions had been “followed in full”. It was further agreed that the requirements of the Equality Act had been considered and TZB had not been treated any less favourably because of his SEN needs.

It was agreed, by a majority decision, that TZB met the criteria for exclusion and that the headteacher's decision was “legal, reasonable and procedurally fair” and that the exclusion was justified and agreed to decline to reinstate TZB to the School.

The IRP hearing took place on in January and March 2022. As regards to the PSED, it noted that "the school's failure to document that it had taken everything including PSED into consideration" was at the heart of the Claimant's case.

It concluded that "this specific PSED statement is not a statutory requirement"; but there were still other reasons for it to recommend that the GDC reconsider its decision.

Reconsidering the decision, the GDC’s review panel reconfirmed its original decision to decline to reinstate TZB.

Turning to the present appeal, Underhill LJ said: “There are three grounds of appeal as regards the Judge's decision on the PSED ground. […] The headline grounds are as follows:

(1) "The Judge erred in treating the Governing Body's reliance on the existence of 'written evidence' as immaterial."

(2) "The Judge erred in law in finding that the Public Sector Equality Duty had been properly applied."

(3) "Impermissible reliance on evidence not before the Governors."”

The school filed a respondent's notice seeking to uphold the judge's decision on the PSED ground on two alternative bases:

(1) "It was sufficient to dispose of Ground 1 [the PSED ground of challenge] that the GDC itself discharged the PSED, and it did so."

(2) "Even if, when making the Reconsideration Decision, the GDC had been required to find that the headteacher had breached the PSED when making the Exclusion Decision, relief fell to be refused under section 31 (2A) of the Senior Courts Act 1981".

Underhill LJ said: “The first of the alternative bases relied on starts from the point that the foundation of this part of the Claimant's case is that the headteacher erred in law by failing to have regard to the PSED when taking the original exclusion decision: the challenge to the GDC's decision is based on (and only on) its failure to find such an error and to reinstate TZB accordingly. Mr Cross [for the school] submits, however, that even if the Headteacher had made such an error it does not follow that the GDC was obliged to reinstate TZB.”

He accepted Mr Cross's submission on ground 1 under the respondent's notice.

Rejecting grounds 1, 2 and 3 of the Public Sector Equality Duty ground, Underhill LJ said Upper Tribunal Judge Church was right to reject the PSED challenge.

The Court of Appeal judge said: “I wish to add that the nature of the arguments on this ground illustrates the point which I have made earlier that a focus on the requirements of the PSED in the context of an individual exclusion decision is liable to be distracting and unhelpful.

“The proper focus for the decision-takers in this case, and thus also the focus of any challenge to their decision, was on an assessment of the individual circumstances of TZB's case – what he had done, the risk of harm to others (and to him) if he remained at the School, and any other particular features of his case (which might in principle include the fact that he came from a group which was at disproportionate risk of exclusion and/or any failures in his past support). Packaging the necessary assessment as a compliance with the requirements of the PSED adds nothing of substance.”

On ground B – the inadequate reasons ground – it was the claimant’s case that the GDP did not address the particular concerns identified by the IRP which caused it to recommend a reconsideration, and therefore failed to meet regulation 26 (2) which required the GDC to notify the claimant of its decision on the reconsideration "and the reasons for it".

Underhill LJ noted: “The IRP gives its reasons for recommending reconsideration at para. 9.5 of its Decision, where it says:

"In considering this protracted Appeal the Panel could not find any reason that was so compelling or of such magnitude that would merit quashing the permanent exclusion. However, there are sufficient reasons for the Governing Body to consider the reinstatement of [TZB] (see para 8)."

He continued: “Although the IRP there says that its reasons for recommending reconsideration are to be found in "para 8" of its Decision, that section runs over two pages, comprising numerous paragraphs. It contains various criticisms of the approach taken by the Headteacher and/or the GDC, but there is no definitive list. That needs to be borne in mind in considering exactly what points the GDC should have been expected explicitly to address in its reconsideration.

“But the Judge produced a helpful summary in para. 88 of his judgment, on which both counsel before us based their submissions. This reads:

"(i) the GDC failed to test whether the permanent exclusion was for a 'serious' breach or for 'persistent' breaches of the School's behaviour policy;

(ii) the GDC did not test what [TZB's] status was in the school prior to exclusion, contrary to paragraph [14] of the Department for Education's guidance;

(iii) the GDC did not ascertain why the Headteacher had not given the family an opportunity to present their case before the decision to permanently exclude was made, contrary to paragraph [17] of the Department for Education's guidance;

(iv) in relation to the second incident relied upon by the School, that the GDC had not noticed the reference in the family's submission to the criminal case in respect of it having been dropped, and had not scrutinised it at the hearing or recorded it in the minutes was 'unreasonable';

(v) it was 'unreasonable' for the GDC to fail to test whether a review was undertaken (in accordance with paragraph 19 of the Department for Education's guidance) after each fixed term exclusion nor a formal assessment of TZB's social, emotional and mental health, and whether more could be done'; and

(vi) the GDC failed to consider the fact that TZB was due to sit his GCSEs shortly after his permanent exclusion, which was relevant to the issue of proportionality, and which may have made a long fixed term exclusion more appropriate.”

Underhill LJ did not accept the submission that the GDC was required as a matter of law to address every specific point made by the IRP.

He said: “If the concerns raised by the IRC were irrelevant, or of only marginal significance, to the decision whether TZB should be reinstated, a failure to address them specifically cannot invalidate the decision itself. It is relevant in this connection that, as I have already noted, the IRP itself produced no definitive list of the concerns which it believed the GDC should address. Section 8 includes a variety of critical observations about the previous process of varying degrees of significance, some of which are indeed too trivial to have been included in the agreed summary at all.

“The GDC was obliged to give only such reasons as showed why the substance of the criticisms raised by the IRP had not caused it to alter its decision.”

He added: “The question as regards concerns (i)-(iv) is thus whether all or any of them were in fact of real significance. Ms Harrison [for the mother] contended that they all were and that the Judge was accordingly wrong to say that they did not need to be individually addressed.”

After considering concerns (i)-(iv), Underhill LJ acknowledged that although it would have been “better” if the GDC had said in terms that the particular kinds of support identified by the IRP would not have been significant in the context of the support that TZB was already receiving, the failure to do so did not amount to an error of law.

He said: “The duty to give reasons, important as it is, should not impose an unrealistic burden on governors undertaking a reconsideration.”

The claimant’s appeal was accordingly dismissed.

King LJ and Warby LJ agreed.

Lottie Winson