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

This judicial review concerned the lawfulness of a governing body’s reconsideration upholding a pupil’s permanent exclusion. The key legal principles were the Public Sector Equality Duty (section 149 Equality Act 2010) and the statutory exclusions framework under the Education Act 2002 and the School Discipline (Pupil Exclusions) (England) Regulations 2012. The court held that there is no freestanding legal requirement that a Headteacher must produce contemporaneous written documentary evidence to show that the PSED was considered; rather the question is factual – whether due regard was in fact paid. The governing body was entitled to rely on the Headteacher’s evidence given at the original governors’ hearing and to find that the PSED had been considered before the exclusion. The court also found that the governing body’s reasons for upholding the exclusion were adequate in the circumstances.

This is a first-instance judicial review brought by the mother of a 15-year-old pupil (anonymised) challenging the governing body’s decision to uphold a permanent school exclusion following an Independent Review Panel recommendation to reconsider. The claimant sought declarations that the Headteacher and the Governing Disciplinary Committee had failed to apply the Public Sector Equality Duty (PSED) in breach of section 149 of the Equality Act 2010, that the governing body’s reasons were inadequate, and an order quashing the Exclusion Decision.

Procedural posture: Judicial review of the governing body’s Reconsideration Decision (following an IRP recommendation). The Exclusion Decision and the initial governors’ decision not to reinstate were earlier steps addressed by the IRP and the governing body, all of which were considered as relevant background.

Issues identified by the court:

• whether the law requires contemporaneous or prior written documentary evidence that the Headteacher gave due regard to the PSED before reaching a decision to exclude permanently;
• whether, on the evidence, the governing body was entitled to find that the Headteacher had considered the PSED prior to the exclusion;
• whether the PSED required further inquiry into the likely impact of exclusion on a Black Caribbean pupil with special educational needs;
• whether the governing body misunderstood the scope of the PSED; and
• whether the governors gave adequate reasons when they reconfirmed the decision not to reinstate.

Court’s reasoning (concise): The court concluded there is no statutory or decisional rule requiring a specific form of contemporaneous documentation proving consideration of the PSED; the duty is one of substance and process and is assessed by reference to the evidence as a whole. The governing body was entitled to rely on the Headteacher’s oral and written evidence given to the original governors’ disciplinary committee and to conclude that she had given due regard to the PSED before concluding the exclusion. Given the context – an individual exclusion where the Headteacher knew the pupil’s protected characteristics and the school setting and support – it was not irrational for the Headteacher or governors not to conduct wider research or further inquiry. The court found that the governing body did not misunderstand the PSED and that its minutes and reasons, read together with the earlier decision and correspondence, were adequate for the purposes of public law review. The claim was dismissed.

The claim is dismissed. The court held that there is no legal requirement that a Headteacher must produce contemporaneous written documentation demonstrating prior consideration of the PSED; the question is factual and depends on whether due regard was in fact paid. On the evidence the Governing Disciplinary Committee was entitled to find that the Headteacher had considered the PSED before concluding the Exclusion Decision, that no further inquiry was irrationally required in the circumstances, that the governing body did not misunderstand the PSED and that its reasons for upholding the exclusion were adequate. The court therefore refused relief.