EBB & Ors, R (on the application of) v The Gorse Academies Trust

Section 91 of the Education and Inspections Act 2006 establishes an objective statutory test for the lawfulness of school disciplinary penalties. A penalty must be reasonable in all the circumstances, including proportionate to the misconduct and appropriate to any known special circumstances of the pupil. The provision does not impose a separate statutory procedure requiring the decision-maker to conduct a particular contemporaneous proportionality assessment.

Repeated isolation is not inherently disproportionate or unreasonable. Its relevance depends on the particular circumstances, including its impact, effectiveness, available alternatives and the pupil’s disciplinary history. Schools must have regard to substantial accumulated removal from classroom teaching, apply policies with an open mind and consider flexibility where circumstances warrant it. Professional educational judgment remains material.

Three secondary-school pupils sought judicial review of disciplinary decisions imposing isolation and suspension. They challenged the sanctions under section 91 of the Education and Inspections Act 2006, non-statutory Department for Education guidance, ordinary public law principles and Article 8 of the Convention.

The claim concerned repeated removal from ordinary classroom teaching, including the cumulative effect of isolation and suspension. One claimant’s claim was held to be time-barred because no relevant disciplinary decision had been made within the applicable period. The central issues were whether repeated isolation was unreasonable or disproportionate, whether section 91 imposed procedural duties, whether the guidance had been followed, whether the school had unlawfully applied its policy inflexibly, and whether Article 8 was engaged.

1. Outcome. Permission was granted on Grounds 2, 3 and 5, but refused on Ground 1 and, in substance, Ground 4. The claims were dismissed.
2. Section 91. Section 91 imposes three conditions for the lawfulness of a disciplinary penalty. The relevant substantive condition is that the penalty is reasonable in all the circumstances. Section 91(6) requires consideration of whether it is a proportionate punishment and of relevant special circumstances, including age, SEND, disability and religious requirements. The test is objective and non-exhaustive.
3. The section limits the disciplinary powers of school staff. It does not create a freestanding statutory procedural duty requiring an individual decision-maker to consider every factor, assess effectiveness, investigate alternatives or record a contemporaneous proportionality analysis. Ordinary public law review remains available where the exercise of discretion is otherwise defective.
4. Disciplinary history may be relevant to the assessment of reasonableness in an appropriate case, particularly where repeated isolation substantially removes a pupil from classroom teaching. Repetition is not inherently disproportionate. The court must assess the particular circumstances, including impact, effectiveness and alternatives, while recognising that effectiveness is a longitudinal and multifactorial matter involving professional educational judgment.
5. The non-statutory Behaviour in Schools guidance does not create legal obligations or establish the rejected statutory procedural duty. It does, however, support an expectation that schools will monitor pupils who accumulate substantial periods of removal, provide strategic oversight and support, and keep an open mind about underlying factors and possible adjustments. It does not require an automatic cessation or reduction of sanctions.
6. The school’s evidence established senior monitoring, individual review and targeted support. The policy had not been applied unlawfully rigidly. A decision-maker must remain willing to depart from or modify a policy where the circumstances warrant it, but persistent misconduct without a determinative special factor did not require departure here.
7. Article 8 was not even arguably engaged by the ordinary application of the school’s disciplinary policy. The authorities concerning abusive treatment at school or radical loss of autonomy in detention did not establish a general course-of-conduct principle applicable to repeated school sanctions. If Article 8 had been engaged, the sanctions would in any event have been proportionate, applying the four-stage approach in Bank Mellat.