HVF, R (on the application of) v Lift Schools

A governors’ disciplinary panel deciding whether to reinstate a permanently excluded pupil must make its own decision under regulation 24(3)(a). It must consider the pupil’s circumstances and the interests of others, apply the permanent-exclusion threshold in the statutory guidance, and assess whether exclusion is a proportionate last resort for protection rather than punishment.

Its contemporaneous reasons must show genuine analysis of the nature and likelihood of serious harm, the impact on the pupil, including relevant SEND, and lesser measures that could permit a return. Bare assertions of serious harm or proportionality are inadequate. Judicial review applies ordinary public-law standards with heightened scrutiny, not a structured Convention proportionality exercise.

Henry, a ten-year-old pupil with complex special educational needs and disabilities, was permanently excluded from an Academy school after handing another pupil a replica butterfly knife during an incident. The principal made the exclusion decision, and the governors’ disciplinary panel refused to reinstate him. An Independent Review Panel upheld that decision by a majority of two to one, although it identified weaknesses in the panel’s recorded deliberations and noted that not all possible sanctions had been considered.

By the substantive hearing Henry had moved to another school and no longer sought reinstatement, but continued the judicial review seeking to remove the historical exclusion. The central issues were whether the governors’ panel had to make its own proportionality assessment, whether its reasons were adequate, and what approach should be taken to CCTV evidence and Independent Review Panel review.

1. Disposition. The judicial review claim succeeded. The Defendant’s permanent exclusion decision was quashed because neither the principal’s letter nor the governors’ disciplinary panel’s decision letter demonstrated a lawful and adequately reasoned assessment of proportionality.
2. The statutory scheme in section 51A of the Education Act 2002, as modified by the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012, treats the principal’s decision and the panel’s reinstatement decision as stages of one school decision-making process. The panel is not an appellate tribunal and the principal bears no burden of proving that exclusion was justified. The panel must make its own decision on the evidence before it, although it may give substantial weight to the principal’s views. This accorded with R v Governing Body of Dunraven School, ex p B ([2000] LGR 494) and R (RWU) v Governing Body of A Academy ([2024] EWHC 2828 (Admin)).
3. Regulation 24(3)(a) requires consideration of the excluded pupil’s interests and circumstances, together with the interests of other pupils and persons working at the Academy. Permanent exclusion is a protective last resort, not punishment. The Guidance requires both a serious or persistent breach and serious harm to education or welfare if the pupil remains. A panel must be satisfied that a lesser measure capable of enabling a return would not suffice and that permanent non-return is proportionate.
4. The required assessment is not a structured Convention proportionality review in which the court substitutes its own view. The court applies ordinary public-law standards, with scrutiny appropriate to the decision’s momentous consequences. Reasons must identify the nature and likelihood of the contemplated harm, the likely impact on the pupil, including relevant SEND, and possible measures such as further suspension or off-site direction. The panel also needed to assess the object’s intrinsic danger, Henry’s understanding of its potential consequences and any intention to cause significant harm. Self-regulation and accountability did not replace that risk assessment.
5. The decision letters mainly asserted that serious harm would result and that exclusion was proportionate. They did not explain why. The undisclosed deliberation note could not be used as the principal source of missing reasoning. The court rejected the argument that the panel had to consider arrangements keeping Henry out of the school, such as placement at another school through his EHCP.
6. Obiter guidance was given on fairness and Independent Review Panels. Fairness will generally require parents and all panel members to have access to key CCTV footage, subject to proportionate blurring. An Independent Review Panel should generally quash an inadequately reasoned panel decision unless the issue is academic or the outcome would highly likely have been the same under section 31(2A) of the Senior Courts Act 1981. It should assess quashing on the material before the panel, but may consider later or previously unavailable material when deciding whether to recommend reconsideration.

Not stated in the judgment.