K, R (on the application of) v Tamworth Manor High School

Guidance on school exclusions must be treated as a material consideration, but its suggested period for a typical exclusion is not a mandatory maximum. The appropriate period depends on the circumstances, including the seriousness of the misconduct, its effect on the school’s reputation, the pupil’s disciplinary history and the pupil’s response to the incident. A reviewing court must respect the decision-maker’s evaluative judgment. An exclusion will stand where it falls within the range of responses reasonably open to the governors. The court did not need to decide whether proportionality provided a distinct or more intensive test than unreasonableness.

The claimant sought judicial review of the Governors’ Discipline Committee’s decision to uphold his exclusion from school for 16 days. The exclusion followed an incident in which he left a mathematics lesson, ran across a football pitch during an inter-school match and exposed his buttocks. Permission was granted on challenges based on an unreasonable or excessively unreasonable penalty. The claimant argued that the Secretary of State’s exclusion guidance indicated that an exclusion of one to three days was appropriate and that the governors had failed properly to consider it. The central issue was whether the 16-day exclusion was unreasonable or disproportionate.

1. The application was dismissed. The court found that the governors had had regard to the Secretary of State’s guidance. The guidance was to be taken into consideration, rather than treated as a series of mandatory requirements. Its statement that one to three days was often sufficient did not prescribe the appropriate period in every case.
2. The guidance itself recognised that longer exclusions might be necessary. The incident was unusual but serious. The head teacher and governors were entitled to regard the conduct as offensive and as bringing the school into disrepute, particularly because it occurred in front of pupils and staff from another school.
3. The claimant’s disciplinary record was a material consideration. Against a history of repeated sanctions, including a five-day exclusion shortly before the incident, and his persistent failure to recognise the irresponsibility of his conduct, an exclusion of one to three days would have been inadequate. A period exceeding five days was reasonably open to the decision-makers.
4. The court was satisfied that 16 days was neither unreasonable nor disproportionate. Judicial review required respect for the governors’ evaluative judgment, and the penalty was within the range of responses reasonably available. The court did not decide whether the correct legal test was Wednesbury unreasonableness or proportionality, because the decision survived either formulation.
5. The head teacher had not imposed the period in order to trigger the governors’ review procedure. In any event, once the matter came before the governors, the procedural consequence of a 15-day exclusion was irrelevant to their substantive decision.
6. An order under section 39 of the Children and Young Persons Act 1933 was extended to protect the claimant’s identity. The court declined to prohibit identification of the school.