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

The claimants brought judicial review challenges to a series of school disciplinary decisions (principally the imposition of periods of isolation and some suspensions) made by John Smeaton Academy under the Gorse Academies Trust. The central legal question was whether the imposition of isolation penalties was lawful under section 91 of the Education and Inspections Act 2006 and/or contrary to the Department for Education non-statutory Guidance 'Behaviour in Schools' or Article 8 ECHR.

The court held that section 91 imposes an outcome-focused statutory constraint that a disciplinary penalty must be "reasonable in all the circumstances" and requires consideration of proportionality and any special circumstances (age, SEND, disability, religious requirements), but does not itself create a distinct contemporaneous procedural duty on individual staff to conduct a separate, judicially-enforceable procedural assessment each time a sanction is imposed. Repetitive use of isolation is not intrinsically unlawful; repetitiveness may be a relevant circumstance but must be shown on the facts to render a particular decision disproportionate or unreasonable.

The court found that the Trust and School had senior strategic oversight (tier system and pastoral board), considered SEND and other relevant factors, and had lawful policy-based reasons for the impugned sanctions. The non-statutory Guidance did not impose a separate legal procedural duty capable of vitiating the decisions. Article 8 was not, on the facts, engaged in a way that would make the sanctioning disproportionate. The claims were dismissed.

Background and nature of the application:

• This is a first-instance judicial review of school disciplinary decisions imposed on three anonymised secondary pupils at John Smeaton Academy (run by the Gorse Academies Trust). The claimants challenged multiple decisions to impose removal from class ("isolation") and some suspensions as unlawful. Specific remedies sought are not stated in the judgment other than the judicial review challenges to lawfulness of the decisions.

Parties and factual context: The School had moved from an Ofsted rating of "inadequate" (2019) to "good" (2024) after adoption of a detailed "Positive Discipline" policy that uses a graduated system of warnings, removal, isolation and suspension. The three claimants had substantial histories of sanctioning and, in aggregate, had spent a substantial amount of time away from whole-class teaching.

Issues framed:

1. Whether the School breached a statutory duty under section 91 Education and Inspections Act 2006 by failing to consider proportionality, cumulative impact and alternatives when imposing repeated isolation (Grounds 1 and 3).
2. Whether the School failed to follow the non-statutory Department for Education guidance "Behaviour in Schools" (Ground 2).
3. Whether the School applied the discipline policy inflexibly in relation to one pupil (Ground 5).
4. Whether the sanctioning engaged and breached Article 8 ECHR (Ground 4).

Court’s reasoning and conclusions:

• Section 91: the court interpreted s.91 as setting an outcome test (the penalty must be "reasonable in all the circumstances"), with mandatory consideration of proportionality and any special circumstances known to the decision-maker (including age and SEND). The text does not impose an independent, granular procedural duty on individual members of staff to carry out a judicially-enforceable contemporaneous procedural assessment each time a penalty is imposed. Repetitive isolation can be relevant but is not automatically disproportionate. On the evidence, the claimants failed to show that the impugned isolation decisions were disproportionate or unreasonable under s.91.
• Guidance: the non-statutory Guidance was held to be permissive and advisory; it does not create the procedural duty contended for. The Guidance does, however, expect strategic oversight and monitoring of repeated removals; the School demonstrably operated a tiered monitoring system and a pastoral board and thus met that expectation.
• Flexibility: the court examined whether the Policy was applied rigidly. It found no unlawful fettering; the School had considered individual circumstances (including SEND) and had tailored responses where appropriate. The complaint of inflexibility in relation to one pupil did not succeed on the evidence.
• Article 8: the court concluded that the facts did not disclose an interference with Article 8 in a way that was arguably disproportionate. The operation of a chosen school disciplinary policy, applied with professional judgment and with available alternatives, is not readily assimilable to the kind of State-imposed solitary/separatory measures that attract Article 8 in Strasbourg jurisprudence.
• Procedural/time issues: one claimant (Elise) had not had a disciplinary decision within the CPR 3-month time limit and that claim was time-barred; no extension was sought.

Outcome: The judicial review claims were dismissed.

The claims are dismissed. The court held that section 91 EIA 2006 imposes an outcome-focused test that a disciplinary penalty must be "reasonable in all the circumstances" (including proportionality and any special circumstances such as age and SEND) but does not create a separate, judicially-enforceable procedural duty on individual staff to conduct contemporaneous procedural assessments for each sanction. Repetitive isolation is not intrinsically unlawful; on the evidence the School had lawful policy-based reasons, senior strategic oversight, and had paid attention to SEND and other relevant factors. The non-statutory Guidance did not create the contended procedural obligation. Article 8 was not engaged in a manner rendering the sanctions disproportionate. One claimant’s challenge was time-barred. Accordingly the judicial review claims fail.