LM & Anor, R (on the application of) v An Academy Trust

A governing body reconsidering permanent exclusion after an independent review panel has quashed its earlier decision must conscientiously reconsider whether reinstatement is appropriate. It may review the existing material and is not required to obtain fresh evidence, a formal risk assessment or oral representations unless fairness makes that necessary. It may start from the headteacher’s findings, but must establish the primary facts to its own satisfaction and fairly assess the evidence. An independent review panel’s findings must be addressed conscientiously, but the governing body need not accept every finding as binding. Permanent exclusion may be justified by a serious breach, persistent breaches, or both, where the statutory and guidance criteria are met. A paper-based reconsideration can lawfully uphold the exclusion where the governing body has addressed the identified shortcomings and reached a rational conclusion.

The claimants sought judicial review of a reconstituted governing body disciplinary committee’s decision of 3 July 2023 to uphold the permanent exclusion of their child, TM, from an academy. The original governing body decision had been quashed by an independent review panel, which identified failures to consider relevant matters and procedural flaws, including shortcomings in evidence-gathering, risk assessment, consideration of alternative provision and reasons.

The reconstituted committee reconsidered the exclusion on the papers, considered the earlier material, the review panel’s decision, statutory guidance and fresh written representations, and unanimously decided that the exclusion was lawful, rational and fair. The claimants challenged that decision on grounds including irrational fact-finding, failure to obtain a risk assessment or further evidence, inadequate exploration of alternatives and procedural unfairness in not permitting oral representations.

1. Claim dismissed. The reconstituted governing body had conscientiously reconsidered the exclusion and was entitled to uphold it.
2. The governing body’s function was to ensure that the exclusion, including the facts on which it was founded, was fairly reconsidered and to establish the primary facts to its own satisfaction. It was entitled to start from the headteacher’s findings and did not have to begin with a blank sheet of paper. Its approach accorded with R v Governors of Dunraven School, ex parte B and the Exclusions Guidance.
3. The dictum in Re K (Children) concerning the risks of reducing detailed findings to headline labels was directed to a CAFCASS case analysis, not a public law decision-maker. It did not establish an independent public law requirement applicable to the governing body’s decision.
4. A formal written risk assessment was not a precondition to permanent exclusion. The headteacher had carried out a dynamic assessment of the risk to other pupils and explained why risk-control measures would not suffice. The governing body was entitled to conclude that a formal document would add nothing material. It was not legally obliged to commission a fresh risk assessment during reconsideration.
5. The governing body was required to give conscientious consideration to the independent review panel’s findings, but was not bound to accept every finding. It rationally examined the criticisms concerning witness statements and concluded that they did not undermine the evidence sufficiently to make reliance on it unreasonable.
6. The governing body was entitled to accept the headteacher’s account that a managed move had been explored and was not feasible. Documentary evidence of the approaches to other schools was not essential where the account was credible, reliable and inherently plausible.
7. Fairness did not require oral representations before the reconsideration. The claimants and TM had previously had opportunities to make representations, including attendance with legal representation and the opportunity for TM to give evidence. No particular unresolved issue requiring oral evidence was identified.
8. The serious assault allegation and persistent sexual harassment findings together satisfied the applicable exclusion threshold. Since the individual grounds failed, the composite irrationality challenge also failed.

First-instance judicial review claim. The judgment records that permission was initially refused on the papers and was later granted following an oral permission hearing. No earlier court judgment in the same litigation is identified.