CHF & Anor, R (on the application of v The Headteacher and Governors of Newick CE Primary School & Anor

A school may use its general management powers to prevent a pupil attending school premises for safeguarding reasons, provided the power is exercised reasonably, fairly and for a proper safeguarding purpose. Where that creates a gap in educational provision, the local authority may act under section 19 of the Education Act 1996 to arrange suitable education otherwise than at the registered school, including mandatory off-site schooling. This safeguarding power is distinct from disciplinary exclusion under section 51A and behaviour-improvement provision under section 29A of the Education Act 2002. It cannot be used to circumvent the safeguards governing those powers or for an extraneous purpose. Case-specific historic issues may properly be left undetermined where a later exclusion decision gives rise to an alternative review remedy, but a discrete vires issue may be determined in the wider public interest.

The claim concerned the schooling of a six-year-old pupil after allegations of harmful sexual behaviour involving other pupils. The school initially arranged on-site separation, then off-site education, and purported to rely on section 29A of the Education Act 2002. The local authority later issued a notice under section 19 of the Education Act 1996. Limited permission for judicial review was granted in relation to the section 29A power, the section 19 power and whether the pupil had been excluded in substance.

After permission was granted, the headteacher permanently excluded the pupil under section 51A of the Education Act 2002, subject to the statutory independent review process. The court therefore declined to determine case-specific historic questions, but considered the wider question whether safeguarding separation could lawfully involve mandatory off-site schooling under section 19.

1. Scope and disposition. The court held that section 29A of the Education Act 2002 was not applicable because the action was not taken for the purpose of improving behaviour. No case-specific ruling was made on whether the historic arrangements were lawful or whether the pupil had been excluded in substance.
2. Safeguarding separation. Section 175 of the Education Act 2002 requires local authorities and governing bodies to arrange for their education and school-conduct functions to be exercised with a view to safeguarding and promoting pupils’ welfare, having regard to statutory guidance. Those duties operate alongside the school’s general management powers. Such powers may, in an appropriate case, justify refusing admission to protect the welfare of the pupil or others.
3. Section 19 power. Where the exercise of general management powers prevents attendance and creates a gap in suitable education, section 19(1) of the Education Act 1996 permits and requires the local authority to arrange suitable education at school or otherwise than at school. The word “otherwise” is sufficiently broad to include safeguarding separation, and the resulting provision may amount to mandatory off-site schooling.
4. Limits and safeguards. The school and local authority must act collaboratively and in accordance with public law standards. The arrangements must be reasonable, procedurally fair, proportionate and directed to safeguarding. They must not be used to circumvent the statutory safeguards for disciplinary exclusion or behaviour-improvement provision, to pressure parents into changing schools, or to improve school performance statistics.
5. Historic issues and alternative remedy. The later section 51A exclusion decision created a live statutory independent-review mechanism. It was therefore inappropriate to determine historic, case-specific issues or to influence the independent review. The discrete vires issue was nevertheless determined because it was a pure question of statutory power of wider public importance. No order was made on the claim, which was finally determined. The claimants were ordered to pay £3,000 towards the defendants’ costs.

First-instance judicial review decision. Limited permission had previously been granted by Linden J. Attempts to widen permission were refused by Deputy High Court Judge Tim Smith and Warby LJ. The Court of Appeal extended the anonymity order in [2021] EWCA Civ 613, but the substantive scope of the judicial review remained limited.