TZA, R (on the application of) v A Secondary School

The Public Sector Equality Duty does not require a decision-maker to create contemporaneous documentary evidence or expressly mention the duty in the decision letter. The question is whether due regard was in fact paid before the decision, assessed on all the evidence.

What amounts to due regard is context-specific. An individual exclusion decision may require no further inquiry where the decision-maker already understands the pupil’s protected characteristics and relevant disadvantage. The duty is one of process, not outcome.

A governing body reconsidering a permanent exclusion must consider the equality duty as part of its own decision-making. Its reasons are assessed contextually. They need address the principal controversial issues, but need not explain every point or the precise weight given to each factor.

The claimant challenged a governing body’s decision to uphold the permanent exclusion of her son, a Black Caribbean pupil with special educational needs, after an Independent Review Panel recommended reconsideration.

The challenge concerned whether the headteacher’s exclusion decision was unlawful because there was no prior or contemporaneous written evidence of compliance with the Public Sector Equality Duty under section 149 of the Equality Act 2010; whether the governing body was required to reinstate the pupil; whether further equality-related inquiries were required; and whether the reconsideration decision gave adequate reasons.

1. Claim dismissed. The claim concerned the reconsideration decision, although the earlier exclusion and non-reinstatement decisions were relevant to its lawfulness.
2. The Equality Act 2010, the Education Act 2002, the Regulations and the cited authorities imposed no specific requirement for prior or contemporaneous documentary evidence of compliance with the Public Sector Equality Duty, nor any requirement expressly to refer to that duty in the exclusion reasons. The legal question was factual: whether due regard had been paid before the decision was concluded. Later-created evidence could be considered, although post-decision evidence required caution. [44]-[47], [54]
3. The governing body was entitled to accept the headteacher’s evidence that she had considered the relevant matters before excluding the pupil. Minutes were not to be parsed as though they were legislation or a verbatim transcript. The governing body could use its experience of the headteacher when assessing the credibility and reliability of her evidence. [48]-[57]
4. Due regard was context-dependent and could involve a duty of inquiry. In this individual exclusion decision, the practical impact was obvious and the headteacher already knew the pupil’s race, special educational needs and relevant disadvantage. It was neither irrational nor Wednesbury unreasonable not to obtain further research about disproportionate exclusion and long-term consequences. [58]-[67]
5. The governing body had to make its own equality assessment when deciding whether to reinstate, both initially and on reconsideration. On reconsideration it had to review the earlier material and decide whether its previous findings and decision should be upheld or changed. It did so and did not misunderstand the breadth of the Public Sector Equality Duty. [69]-[78]
6. Reasons were context-specific. The governing body’s reasons could be read with the reasons for the earlier decision. It was unnecessary to repeat all earlier reasoning or address every submission. The reasons adequately addressed the principal issues and the Independent Review Panel’s concerns, enabling the claimant to understand why reinstatement was refused and identify any arguable error. [79]-[97]
7. The Public Sector Equality Duty was a duty of process, not outcome. The governing body had to understand the equality implications and recognise the desirability of advancing equality, but it was for it to decide the weight to give those matters against the serious violence, risk to others and proportionality considerations. The court could not substitute its own balancing exercise. [98]-[103]