B, R (on the application of) v Independent Appeal Panel of London Borough of Brent

Permanent exclusion from school is exceptional, particularly where a pupil receives special educational support, but exceptional cases may justify it. Fairness requires the pupil, or a representative, to have a meaningful opportunity to answer the allegations before exclusion. The allegations must be stated with sufficient particularity for that purpose. An Independent Appeal Panel hearing an exclusion appeal de novo may cure defects in the earlier process, unless those defects contaminate the appeal decision itself. Judicial review does not determine the truth of disputed evidence. The question is whether material existed on which the Panel could rationally reach its conclusion. The High Court will generally defer to an Independent Appeal Panel’s educational judgment, and successful judicial review will be exceptional.

The claimant, a primary-school pupil supported at School Action Plus, was permanently excluded after allegations that he had repeated a threat to another child. The head teacher’s decision was upheld by the governing body and then by an Independent Appeal Panel.

The claimant sought judicial review of the Panel’s decision. He relied on procedural defects in the school’s handling of the allegations, uncertainty about the date of the alleged incident, deficiencies in the evidence, and the failure to take further steps to support him at school. The central issues were whether the earlier defects infected the de novo appeal, whether the hearing was unfair, and whether the Panel’s conclusion was irrational.

1. Application dismissed. The claimant’s application for judicial review was refused.
2. It was elementary fairness that the pupil, or in his absence his parents or representative, must have an opportunity to respond to the allegations before a decision is made. The allegations must be communicated with sufficient particularity to enable a meaningful response. The school’s failures concerning dates, statements, records and the opportunity to answer the second allegations were serious and were rightly criticised.
3. The uncertainty about the date of the alleged repeated threat did not make the hearing unfair. The essential allegation was that the pupil had returned from suspension and repeated the threat. His answer was an outright denial, rather than a date-specific alibi. The three-and-a-half-month interval between the two hearing days also afforded an opportunity to clarify the date, but no adjournment was sought.
4. The Panel had sufficient material to reach its conclusion, including the complainant’s statement, evidence from an assistant head teacher, oral evidence from school staff, and the pupil’s own evidence and demeanour. Judicial review was concerned with whether there was evidence capable of supporting the decision, not with deciding whether the pupil or complainant was telling the truth. The threshold for showing that only one rational conclusion was open was very high.
5. Although a defect in an earlier decision may sometimes infect an appellate decision, the Independent Appeal Panel heard the exclusion case fully and de novo. In accordance with the approach summarised in A [2002] EWCA Civ 1822, the Panel’s decision should not be quashed unless the earlier defect contaminated the appeal decision in a real sense. No such contamination was established.
6. Independent Appeal Panels must comply with fairness, but they are knowledgeable in educational matters. The court will defer to their judgment, and cases in which judicial review of such a decision is granted will be exceptional.

The court ordered anonymity under section 39 of the Children and Young Persons Act 1933 and ordered the claimant to pay the defendant’s costs, subject to detailed assessment.

First-instance judicial review. The judgment does not state any further appellate history.