RWU, R (on the application of) v A Governing Body of A Academy

Permanent exclusion is a supervisory decision engaging the pupil’s welfare, safeguarding and educational interests, alongside those of other pupils and staff. The governing body must reconsider afresh whether the principal’s decision was lawful, reasonable and procedurally fair after an independent review panel has quashed an earlier non-reinstatement decision. It need not conduct a complete rehearing or use a newly constituted panel. Judicial review ordinarily assesses legality without hindsight, although later evidence may be relevant where its relevance follows from the legal issue. The significance of exclusion justifies close scrutiny of reasons, reduced benevolence in reading them and caution concerning retrospective explanations, but not a technical or nit-picking approach. Article 4 ECHR may be relevant where its protective duty is triggered, but the duty is assessed by reference to what the school knew or ought to have known at the time.

The claimant was permanently excluded from an academy following five earlier suspensions and a further incident involving cannabis, other prohibited items and cash. The governing body declined reinstatement. An independent review panel found the decision not to reinstate irrational because relevant information about interventions, evidence, the claimant’s voice and vulnerability to child criminal exploitation had not been adequately considered. It quashed that decision and directed reconsideration.

The governing body reconsidered the matter and again declined reinstatement. The claimant sought judicial review on four grounds: an Article 4 positive-obligation ground; material mistake of fact concerning the effect of the quashing; failure to address the serious-harm limb of the permanent-exclusion test; and failure to comply with the statutory guidance’s requirement for conscientious reconsideration.

1. Claim dismissed. All four judicial review grounds failed. Permission to appeal was refused.
2. The proper starting point in judicial review is the information which was, or should have been, available when the impugned decision was taken. Post-decision events and evidence may be admitted where they illuminate a mistake of fact, procedural unfairness, non-materiality, academicity, remedy or another issue whose legal nature makes them relevant. They cannot ordinarily be used to conduct a rolling, hindsight-based review.
3. The impact of permanent exclusion, safeguarding concerns, vulnerability and the protective role of education justify relatively exacting review. The court should scrutinise the decision and reasons closely, read them with reduced benevolence and approach retrospective explanatory evidence cautiously. It must still adopt a straightforward rather than technical or nit-picking approach.
4. After an independent review panel quashes a governing body’s non-reinstatement decision under section 51A(4)(c) of the Education Act 2002, the governing body must reconsider afresh whether the principal’s exclusion decision was lawful, reasonable and procedurally fair. A complete rehearing and a newly constituted panel are unnecessary. The governing body may reach the same outcome if it addresses the deficiencies identified by the review panel.
5. The governing body did not materially misunderstand the quashing. Although its letter referred inaccurately to a recommendation and to upholding the original decision, the letter and contemporaneous deliberations, read fairly and as a whole, showed that it understood the direction and reconsidered the principal’s decision afresh.
6. The governing body addressed both limbs of the permanent-exclusion test. Its reasons, read in context with the material before it and the principal’s submissions, sufficiently engaged the serious risk to the education and welfare of other pupils and the principal’s professional judgment.
7. The statutory guidance’s reference to conscientious reconsideration did not impose an automatic requirement to reinstate or a freestanding requirement for a separately articulated “strong justification”. Compliance with ordinary public law standards supplied the necessary justification in this case.
8. Article 4 ECHR did not require the exclusion decision to be quashed. The school had recognised and acted on CCE concerns, including through safeguarding referrals and liaison with the social worker and police. On the information available at the relevant times, there was no credible suspicion of a real and immediate risk sufficient to trigger the positive protection duty. Reaching the contrary conclusion depended on impermissible hindsight from later events.
9. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment and the statutory costs provisions applicable to legally aided parties.

This was a first-instance judicial review in the Administrative Court. The court dismissed the claim and refused permission to appeal.