A PARENT (R on the application of) v GOVERNING BODY OF XYZ SCHOOL

Permanent exclusion is lawful only where there has been a serious or persistent breach of the school’s behaviour policy and allowing the pupil to remain would seriously harm education or welfare. Statutory guidance should ordinarily be followed, but it is not a set of rules and may be departed from for good reason. A written safeguarding risk assessment is not an express precondition to permanent exclusion. Its absence does not itself invalidate the decision where risk was assessed and the assessment was reasonably held. Reconsideration after an independent review panel recommendation requires a conscientious review of the original material in light of the panel’s findings, not a complete rehearing. A governing body may uphold its earlier decision after such reconsideration. Prior involvement, defending the original decision, or preliminary internal communications do not establish bias or predetermination without evidence of a closed mind.

The claimant sought judicial review of the governing body’s decision to maintain the permanent exclusion of her son from a maintained school. The headteacher had excluded him after information was received concerning indecent sexual images and an ongoing police investigation. The governing body upheld the exclusion. An independent review panel later recommended reconsideration under section 51A(4)(b) of the Education Act 2002, principally because no further written safeguarding risk assessment had been completed and the pupil had not initially been given an opportunity to address the allegations in detail. On reconsideration, the governing body again upheld the exclusion, although the pupil was by then too old to return to the school. The claim alleged irrationality, procedural unfairness, actual or apparent bias, and predetermination. The central issues were the legal effect of the recommendation, the meaning of reconsideration, and whether the exclusion was unlawful without a further written risk assessment.

Claim dismissed. The governing body’s reconsideration decision was lawful, rational and procedurally fair.

1. Guidance and exclusion criteria. Public bodies should ordinarily follow statutory guidance unless there is a good reason not to. Guidance is not a set of binding rules. Permanent exclusion required both a serious breach or persistent breaches of the behaviour policy and serious harm to education or welfare if the pupil remained. The R v Islington LBC, ex parte Rixon (1996) 1 CCLR 19 and R (S) v Brent London Borough Council [2002] EWCA Civ 693 principles applied.
2. Risk assessment. The safeguarding guidance required an immediate risk assessment following a report of sexual violence, but the School Exclusion Guidance did not make a written risk assessment a precondition to permanent exclusion. The headteacher had assessed the risks in practice, had been unable to obtain a further assessment from the local authorities, and had reasonably concluded that the pupils should be kept apart. The absence of a further written assessment therefore did not render the exclusion unlawful.
3. IRP recommendation and reconsideration. A recommendation to reconsider under section 51A(4)(b) of the Education Act 2002 was a lesser power than quashing the decision under section 51A(4)(c). It did not nullify the governing body’s decision. The governing body had to address the matters identified by the IRP, but could reach its own conclusion. Reconsideration meant reviewing the original material with an open mind in light of the IRP’s findings. It did not require a complete rehearing or further representations. Relevant new information could be considered, but the panel could not be criticised for failing to consider evidence unavailable when the earlier decisions were made.
4. Rationality and fairness. The irrationality challenge failed. The test covered both whether the decision was outside the range of reasonable decisions and whether the reasoning contained a serious flaw, such as reliance on irrelevant considerations, lack of evidence for an important step, or a serious logical or methodological error. The panel’s conclusions were supported by evidence and were rationally open to it. The combined headteacher and governing body process was a single process, and the pupil had an opportunity to give his account at the governing body hearing.
5. Bias and predetermination. Applying the principles in Re Medicaments (No. 2) [2001] 1 WLR 700, Porter v Magill [2002] 2 AC 357 and R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin), neither actual nor apparent bias or predetermination was established. The same panel was not disqualified from reconsidering its decision. Its defence of the decision before the IRP and informal preliminary emails did not show that it had closed its mind.