S & Anor, R (on the application of) v Independent Appeal Panel of Birmingham City Council

An independent appeal panel dealing with exclusions arising from one incident must itself consider whether the appeals should be combined or heard by the same panel where the participants and relevant circumstances are materially similar. An administrative listing department cannot exercise that statutory power without lawful delegation. Separate hearings are not necessarily unlawful, but the authority must justify the risk of inconsistent outcomes and take practical steps to allow similarities and differences to be considered. A panel required to have regard to statutory guidance need not give cogent reasons for departing from it in the manner required by more prescriptive regimes. It must, however, give intelligible reasons which grapple with material guidance, including the principle that permanent exclusion is normally a last resort and exceptional for a one-off offence.

The claimants challenged decisions of the defendant’s Independent Appeal Panels dismissing their appeals against permanent exclusion from a maintained school. The exclusions followed a single incident involving five pupils who believed they were experimenting with cannabis. The appeals were heard by differently constituted panels, and one other pupil involved in the same incident was later reinstated by a separate panel.

The claimants alleged unlawful delegation, procedural unfairness, irrationality, inconsistent treatment, and failure to apply or properly explain departures from the Secretary of State’s exclusion guidance. The central issues were whether the appeals should have been combined or heard by the same panel, and whether the decision letters adequately addressed the relationship between the school’s zero-tolerance policy and the statutory guidance.

1. Listing and consolidation. In the circumstances of a single incident involving joint participants with no material factual differences, the defendant was required to consider whether the appeals should be combined or arranged before the same panel. Although there was no general requirement to combine appeals, the power under paragraph 12 of the Schedule to the regulations belonged to the appeal panel. The Committee Services Department’s purported listing decision was therefore ultra vires.
2. The reliance on Lewisham Metropolitan Borough Council v Roberts [1949] 2 KB 608 failed. The Carltona principle was confined to central government departments and did not authorise local government bodies or other statutory authorities to exercise a function expressly entrusted to an appeal panel.
3. Consistency. A disparate result does not automatically make a decision unlawful. However, where separate hearings create a real risk of disparity, the authority must closely scrutinise and justify that course and take practical steps enabling the different panels to account for relevant similarities and differences. The principle that like cases should be treated alike is an important principle of public administration and administrative law.
4. Statutory guidance. The panels had regard to the exclusion guidance. The requirements considered in Rixon [1997] ELR 66 and R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 arose in materially more prescriptive or important contexts and did not establish a general duty to give cogent reasons whenever a panel gives primacy to local policy.
5. Reasons. The panels nevertheless failed to explain why the school’s zero-tolerance policy outweighed the guidance’s provisions that permanent exclusion should normally be a last resort and should be used for a one-off offence only in exceptional circumstances. Where the relationship between local policy and national guidance is an important issue, the decision must briefly address that tension and explain the preference adopted.
6. The decisions were quashed and the matters were remitted to a differently constituted tribunal. The defendant accepted liability for the claimants’ costs.

First-instance judicial review. The judgment does not state any prior appellate decision.