L v J

Reinstatement after a permanent exclusion means that the pupil is no longer excluded. It does not require exact restoration of the pre-exclusion arrangements or immediate full reintegration into ordinary classes.

Those responsible for running the school may take account of threatened industrial action when deciding how to provide education, and may balance the reinstated pupil’s interests against those of other pupils. They must act proportionately and adopt the least derogation from full reintegration necessary to protect the wider school community. They must not use the arrangements to undermine the binding decision of an appeal panel or to re-impose the exclusion.

Two judicial review matters concerned pupils who had been permanently excluded from maintained schools and subsequently ordered to be reinstated by independent appeal panels under the School Standards and Framework Act 1998.

In W’s case, Richards J dismissed the challenge to arrangements made after reinstatement: [2001] ELR 285. In L’s case, Henriques J adopted that reasoning and dismissed the challenge to arrangements involving separate teaching and supervision after staff indicated that they would not teach or supervise L.

W’s appeal became academic after her successful reintegration. The common issues were the meaning of reinstatement and the lawfulness of taking account of threatened industrial action when determining the conditions of a pupil’s return.

1. Appeals dismissed. The Court of Appeal dismissed both appeals, with costs.
2. Per Laws LJ, reinstatement under sections 66 and 67 of the School Standards and Framework Act 1998 means that the pupil is no longer excluded. It does not require precise or approximate restoration of the conditions existing before exclusion. Once reinstated, the exclusion is cancelled and the pupil is to be treated as any other pupil, although particular educational measures may be required by the circumstances.
3. The relevant discretion was the general discretion of the head teacher, supported by the governing body under section 38, concerning the running of the school. Threatened industrial action was not merely relevant; in practical circumstances it was a mandatory consideration because the school owed duties to all its pupils.
4. The decision-maker had to balance the reinstated pupil’s interests against those of the other pupils. Judicial review did not involve substituting the court’s view on the merits. The head teacher and governors had to act proportionately and consider the least derogation from full reintegration necessary to protect the other pupils’ interests.
5. The school remained bound by the appeal panel’s decision under section 67(3). It could not act on a view that the panel’s decision was wrong so as to defeat or reverse reinstatement. Clarke LJ expressed a qualification: the binding obligation concerned the panel’s decision, and the school could take all relevant circumstances into account when implementing it.
6. On the facts, the head teacher and governors had attempted to reintegrate L while addressing the staff’s position and the interests of pupils preparing for examinations. They had not acted for the improper purpose of defeating the appeal panel’s decision.
7. The further arguments concerning transport, association, consultation, relevancy and legitimate expectation failed for the reasons given below. Laws LJ made no concluded determination on whether a trade union might itself be amenable to judicial review if it acted to frustrate a lawful decision of an appeal panel.

• Administrative Court: Richards J dismissed W’s judicial review application on 2 November 2000; the decision is reported at [2001] ELR 285. Henriques J dismissed L’s judicial review application on 26 April 2001.
• Court of Appeal (Civil Division): permission to appeal was granted in L’s case and the appeals were heard together. Both appeals were dismissed with costs.