D v Independent Education Appeal Panel of Bromley London Borough & Anor

Where an education appeal panel rejects the justification for a pupil’s exclusion, reinstatement should ordinarily follow. Under the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, refusal is permitted only where exceptional circumstances or other reasons make reinstatement impractical. Natural justice requires the school to identify those reasons and the parents to have a fair opportunity to address them. The issues of whether exclusion was justified and whether reinstatement is practical may be considered at one hearing, but they remain distinct. Reasons already rejected as grounds for exclusion will usually require a further cogent basis before they can justify non-reinstatement.

D was permanently excluded from a school after two incidents involving threats to a teacher’s property and physical contact with a member of support staff. The exclusion was upheld by the governors. On appeal, the Independent Education Appeal Panel decided that neither incident justified exclusion, but declined to direct reinstatement.

D’s parents sought judicial review on five grounds, including jurisdictional error, illegality, breach of natural justice, inadequate reasons and Wednesbury unreasonableness. The Administrative Court, before Mr James Goudie QC sitting as a deputy judge, rejected all five grounds. The central issue on appeal was whether the panel could refuse reinstatement without inviting the school to provide specific reasons why reinstatement would be impractical and giving the parents an opportunity to address them.

Disposition

Permission to appeal was granted and the appeal was allowed. Lord Justice Longmore delivered the principal reasoning. Lord Justice Maurice Kay agreed, and Lord Justice Thorpe concurred.

1. Regulation 6(6) of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 creates distinct questions. The panel must first determine whether exclusion should be upheld. If it is not upheld, reinstatement should ordinarily follow unless exceptional circumstances or other reasons make it impractical.
2. The issues of justification for exclusion and practicality of reinstatement may be addressed at a single hearing. There is no requirement for two separate hearings. However, they must be separately addressed. The panel should specifically invite the school to identify any reasons for opposing reinstatement and allow the parents to respond. This is required by natural justice because a party must know the case it has to meet.
3. Reasons relied on to justify exclusion which the panel has rejected will ordinarily provide no cogent basis for refusing reinstatement. Potentially relevant reasons might include the unavailability of a particular course or a breakdown in relations between staff and pupil, but such matters require evidence or submissions. A breakdown could not simply be assumed.
4. The panel had not invited or received specific submissions on the practicality of reinstatement. Its decision was therefore procedurally unfair and flawed. The refusal to order reinstatement was quashed, and the matter was remitted for reconsideration by the same or a differently constituted panel, after further submissions on that issue.

• Court of Appeal (Civil Division) — Permission granted; appeal allowed; refusal to order reinstatement quashed and matter remitted for reconsideration: [2007] EWCA Civ 1010.
• High Court, Queen’s Bench Division, Administrative Court — Mr James Goudie QC, sitting as a deputy judge, rejected the five grounds of judicial review.