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

The Court of Appeal dismissed the claimant’s challenge to the governors’ reconsideration of a permanent school exclusion. The principal legal issues were (i) whether the headteacher and/or governors had complied with the public sector equality duty in section 149(1) of the Equality Act 2010 when taking or reviewing the exclusion decision and (ii) whether the governors gave adequate reasons when they reconsidered the independent review panel’s recommendation. The court held there is no legal requirement to create a contemporaneous document or equality impact assessment to show compliance with the PSED; what is required is that the decision‑maker actually gave "due regard" to the specified considerations in section 149(1). The governors were entitled to form their own view and to decide afresh whether reinstatement was appropriate; in this case the governors had, on the material before them, properly considered the PSED and their reasons for reconfirming the exclusion were adequate in law.

This appeal arises from judicial review proceedings challenging the governors’ reconsideration of a permanent exclusion of a 15‑year‑old pupil of Black Caribbean heritage with special educational needs. The exclusion letter was dated 13 May 2021; the governors’ initial disciplinary committee meeting was 8 June 2021 and they declined to reinstate. The claimant applied for an independent review panel which heard the matter in January and March 2022 and on 23 March 2022 recommended reconsideration. The governors reconvened on 11 July 2022 and confirmed their earlier decision; the claimant pursued judicial review in the High Court which dismissed the claim ([2023] EWHC 1722 (Admin)). The claimant appealed to this Court.

The relief sought was, in substance, quashing of the exclusion decision (the claimant did not seek reinstatement). The grounds before the court were (i) breach of the public sector equality duty (section 149(1) Equality Act 2010) and (ii) that the governors’ reconsideration gave inadequate reasons in response to the independent review panel’s concerns.

The Court of Appeal summarised the statutory and guidance framework (Education Act 2002 s.51A; School Discipline (Pupil Exclusions) (England) Regulations 2012; the Department for Education Guidance on exclusions) and analysed the scope of the PSED in individual exclusion cases. The court emphasised that the PSED requires decision‑makers to have "due regard" to the specified considerations but that what due regard requires is context dependent and there is no statutory duty to record that regard in a particular contemporaneous form. The court accepted the High Court judge’s findings that the governors were entitled to conclude, on the evidence they had and on the headteacher’s statement recorded in the original minutes, that the headteacher had had due regard to the PSED; alternatively the governors themselves had sufficient knowledge and material before them to discharge the duty in the course of their decision‑making. On reasons, the court held that the governors were not required as a matter of law to address every criticism by the IRP point‑by‑point; they had to give reasons sufficient to show why the substance of the IRP’s criticisms had not led them to change their decision. Applying that test the Court of Appeal concluded the governors’ minutes and accompanying material, read together with the earlier minutes and letter, gave adequate reasons.

The court also observed, as part of its reasoning, that an excessive legalistic focus on the PSED in individual exclusion decisions risks complicating decision‑making that should be driven by assessment of the pupil’s conduct, risk to others and any material mitigating or contextual factors.

The appeal is dismissed. The Court of Appeal agreed with the High Court that (1) there is no legal requirement for a contemporaneous written record or equality impact assessment to prove compliance with the public sector equality duty; decision‑makers must in fact have "due regard" to the considerations in section 149(1) but that due regard can be established from the evidence and context, (2) governors can and must form their own decision on reinstatement and, where appropriate, may themselves discharge PSED obligations in reaching that decision, and (3) the governors’ reconsideration contained adequate reasons when read with the original minutes and letter; the independent review panel’s criticisms did not require a point‑by‑point rebuttal in the reconsideration minutes.

Appeal from the High Court of Justice, King’s Bench Division, Administrative Court (Upper Tribunal Judge Church sitting as a High Court Judge) [2023] EWHC 1722 (Admin). Earlier administrative steps included the headteacher's exclusion letter dated 13 May 2021, the governors’ disciplinary committee meeting of 8 June 2021 (declining to reinstate), an independent review panel decision dated 23 March 2022 (which recommended reconsideration), and the governors’ reconvened meeting of 11 July 2022 (reconfirming the exclusion).