LB, R (On the Application Of) v Independent Appeal Panel of Newport City Council

Permanent exclusion for a first or one-off offence requires a clear finding that the conduct involved serious actual or threatened violence. It is the violence, rather than merely the general gravity of the incident, which must meet that threshold. An appeal panel must give reasons if it relies on surrounding circumstances to treat relatively minor violence as serious violence. A managed move must be arranged with the full knowledge and co-operation of the parents and must not be used by pressuring them to remove the child under threat of permanent exclusion. Failure to comply with that guidance may materially affect the lawfulness and proportionality of the exclusion.

The claimant, a pupil with ADHD, challenged the decision of an independent appeal panel upholding her permanent exclusion from a comprehensive school after an incident involving a teacher and another pupil. The panel found that the incident occurred as described, considered permanent exclusion justified and proportionate, and relied partly on the family’s rejection of a proposed managed move. The claimant argued that the panel had failed to determine whether the incident involved serious actual violence, had inadequately addressed proportionality, and had failed to follow the guidance governing managed moves. The central issues were whether the panel had properly applied the Welsh exclusion guidance and whether its treatment of the proposed managed move was lawful.

1. Guidance threshold. The Welsh exclusion guidance contemplated permanent exclusion for a first or one-off offence only in exceptional circumstances, including serious actual or threatened violence. The relevant focus was the seriousness of the actual or threatened violence, not merely whether the incident as a whole was serious.
2. The panel had referred to the gravity and serious nature of the incident, but had not clearly found that the claimant had used or threatened serious violence. If the panel considered that relatively minor violence could satisfy the threshold because of surrounding features such as insolence or premeditation, it had to say so and give reasons. The panel’s failure to make the necessary finding justified judicial review.
3. The court considered Regina (G) v IAP of London Borough of Bexley [2008] EWHC 3051 (Admin). It was not persuaded that specific intent to target the victim was necessary, and regarded that part of the earlier reasoning as potentially obiter. The decision was nevertheless relevant to the assessment of proportionality and the effect of the incident on the wider school community.
4. Proportionality. The panel could have explained its balancing exercise more fully, including the risks to others and the claimant’s interests. However, it had adequately addressed the relevant principles and this ground alone would probably not have succeeded.
5. Managed move. The guidance required a managed move to be arranged with the full knowledge and co-operation of the parents and other relevant parties. Parents must not be pressured into removing their child from school under threat of permanent exclusion. The evidence supported the claimant’s submission that the managed move had not been properly explained and that the panel had wrongly treated its rejection as showing that alternative solutions had been considered. Relief was therefore granted, requiring the case to be reconsidered by the panel.

Permission to apply for judicial review was granted on the papers by a single High Court judge. The Administrative Court granted the claim and directed reconsideration by the independent appeal panel.