SA v London Borough of Camden & Ors

An independent appeal panel considering a permanent school exclusion must exercise its own judgment, but an agreement between the parties remains a material consideration. If the panel intends not to give effect to an agreement proposing that exclusion be overturned without reinstatement, it must give adequate reasons addressing the agreement’s terms, purpose and stated best interests of the child. Where its proposed course departs from the agreed outcome, procedural fairness ordinarily requires an adjournment and an opportunity for the parties to make representations. Guidance must inform the panel’s decision but must not be treated as binding rules or used to fetter its discretion.

The claimant, a pupil diagnosed with ADHD, challenged an Independent Appeal Panel’s decision upholding his permanent exclusion from H School. The exclusion had been imposed after behavioural incidents and concerns that the school could not meet his needs. The claimant and the school later agreed that the exclusion should be overturned, but that reinstatement was impracticable because alternative provision was more appropriate.

The Panel considered the appeal on written material, decided that it was not bound by the agreement, and upheld the exclusion. The claimant sought judicial review on the grounds that the Panel failed to give reasons for departing from the agreement and acted unfairly by proceeding without giving the parties an opportunity to address that course.

1. The claim succeeded. The Panel’s decision was quashed and the matter was remitted for a hearing before a new Panel.

2. Under regulation 6(6)(c) of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, only an Independent Appeal Panel could decide that reinstatement was impracticable although exclusion would otherwise have been inappropriate. The parties were therefore entitled to place their proposed resolution before the Panel.

3. The Panel was not automatically bound by the agreement. However, it was required to address it lawfully. The agreement had been signed by the claimant, the school and the governing body, was supported by independent legal advice, and was presented as reflecting the claimant’s best interests and the reasoning behind the exclusion. The Panel merely noted the agreement and failed to explain why it rejected it. That was an unlawful failure to give reasons.

4. The direction that the Panel had to reach its own decision, rather than give effect to the agreement unless there was good reason not to do so, was a misdirection. If the Panel doubted the proposed course, the prudent and fair course was to adjourn and invite representations from the parties, obtaining qualified legal advice if necessary.

5. Ground 2 was also established. The clerk had indicated that the appeal would be determined on written submissions, but oral representations were made by the local authority representative. Further, once the Panel decided not to follow the agreement, the parties should have been given an opportunity to address that proposed outcome.

6. The approach in ST and P v London Borough of Brent and others 2002 EWCA Civ 693 confirmed that exclusion guidance must be taken into account, while panels must retain independent judgment and must not treat guidance as binding rules. The 2008 Guidance did not specifically address the unusual situation before the Panel.

• Independent Appeal Panel: upheld the permanent exclusion on 12 March 2012.
• High Court (Administrative Court): quashed the Panel’s decision and remitted the matter to a new Panel.