SAG, R (on the application of) v The Governing Body of Winchmore School [2025] EWCA Civ 1335

[2025] EWCA Civ 1335Case No CA-2025-002133
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Mr. Neil Cameron KC sitting as a Deputy High Court Judge
Venue AC-2025-LON-002221 Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/10/2025
Before
LORD JUSTICE ARNOLDLADY JUSTICE ELISABETH LAINGLORD JUSTICE EDIS
Between
THE KING (on the application of SAG by her litigation friend ERG)AppellantTHE GOVERNING BODY OF WINCHMORE SCHOOLRespondent
Ollie Persey (instructed by Bindmans LLP) for AppellantPaul Greatorex (instructed by Enfield Legal Services) for RespondentHearing Hearing dates : 18 September 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 21 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]By this appeal the appellant, “SAG”, seeks to challenge the dismissal of her claim for judicial review of a decision by the Governors’ Disciplinary Committee (“the GDC”) of the Winchmore School (“the School”) to uphold on reconsideration its earlier decision to refuse to reinstate her following a decision by the Headteacher of the School to exclude her permanently for misconduct. That earlier decision had been quashed by an Independent Review Panel (“IRP”). Mr. Neil Cameron KC, sitting as a Deputy High Court Judge, gave leave to bring the claim, but dismissed it. His reasoned judgment, [2025] EWHC 2117 (Admin), was handed down with commendable expedition within a week of the hearing. The appeal has also been expedited in order that SAG’s education can continue in the best way possible in the light of its outcome. Anonymity has been granted to SAG and to her litigation friend, ERG, who is her mother.[2]The School made a submission to the judge that judicial review should be refused in respect of the reconsideration decision because there was an alternative remedy, namely a further reference to an IRP. The judge rejected this challenge on grounds of statutory construction. There is no appeal against that decision and it is not necessary to say anything more about it.

Introduction

[3]The statutory provisions governing the power of a headteacher to exclude a pupil permanently from a school and the duty of the school’s governing body to consider reinstatement have been recently and authoritatively examined by this court in R (oao TZA) v a Secondary School [2025] EWCA Civ 200 (“TZA”). This case does not require any revision or development of that analysis.[4]The legislative provisions governing school exclusions are to be found in section 51A of the Education Act 2002 (“the 2002 Act”) and in the School Discipline (Pupil Exclusions) (England) Regulations 2012 (“the 2012 Regulations”), which are made under powers conferred by three different statutes. Those powers include sections 51A(3), (5), (6), (7), (8), (9), (10), and (12) the 2002 Act. Section 51A(8)(b) of the 2002 Act enables regulations to require a person or body exercising functions under section 51A(1) or (2) “to have regard to any guidance given from time to time by the Secretary of State”. Regulation 9 of the 2012 Regulations requires the head teacher and the governing body (among others) to have regard, when exercising their functions under section 51A(1) of the 2002 Act or under the 2012 Regulations, to “any guidance given from time to time by the Secretary of State”. The guidance in force at the time of SAG’s exclusion was called “Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement. Guidance for maintained schools, academies, and pupil referral units in England”, published August 2024("the Guidance").[5]Section 88 of the Education and Inspections Act 2006 (“the 2006 Act”) is headed “Responsibility of governing body for discipline”. Section 88(1) requires the governing body to “ensure that policies designed to promote good behaviour and discipline on the part of pupils are pursued at the school”. Section 88(2)(a) requires the governing body “in particular” to make, and from time to time to review, a written statement of general principles to which the head teacher is to have regard in determining any “measures under section 89(1)”. The governing body must consult those listed in section 88(3) before making any statement required by section 88(2)(a). That list includes the head teacher. Section 88(2)(b) requires the governing body “where they consider it desirable that any particular measure should be so determined by the head teacher or that he should have regard to any particular matters” to notify him of those matters, and enables the governing body to give him guidance about those matters. In exercising their functions under section 88(2), the governing body must have regard to any guidance given from time to time by the Secretary of State (section 88(4)).[6]Section 89 of the 2006 Act is headed “Determination by the head teacher of behaviour policy”. Section 89(1) requires the head teacher to “determine measures to be taken with a view” to promoting the behavioural objectives listed in section 89(1). In determining such measures, section 89(2) of the 2006 Act requires the head teacher to “act in accordance with” (and not merely to “have regard to”) the “current statement made by the governing body under section 88(2)(a), and “to have regard to” any notification or guidance given to him under section 88(2)(b).[7]The formal steps in SAG's exclusion can be summarised as follows:(1) The exclusion decision. By letter dated 5 February 2025 ("the exclusion letter") the Headteacher of the School notified the Claimant of his decision to exclude SAG permanently with immediate effect. The reasons were given as:- “[SAG] has been excluded in response to a serious breach of the school's behaviour policy: In possession of a mobile phone with a sim card on a school trip. Being found in a teachers room without permission, trying to retrieve a phone.” Being found in a teachers room without permission, trying to retrieve a phone.”(2) The first GDC decision. The effect of regulations 5-6 is that in the case of a permanent exclusion the governors are required to consider whether the pupil should be reinstated. This occurred at a meeting on 3 March 2025 and resulted in a letter to SAG’s mother dated the 6 March 2025 which said:- “The panel agreed with the school's case that the incident on the skiing trip on 23'ª January 2025, involving entering a teacher's room without permission in an attempt to retrieve her confiscated phone, represented such a serious breach of trust that to allow her to return to school would not be possible”.(3) The independent review. Regulation 7 provides for the establishment of an independent review panel established by the local authority ("an IRP"), which may uphold a decision by the governors not to reinstate a permanently excluded pupil or recommend that they reconsider it or quash it and direct a reconsideration. SAG applied for the GDC's decision to be reviewed, and an IRP held a hearing on 26 March 2025. By a decision dated 31 March it quashed the GDC's decision and directed the GDC to reconsider reinstatement.(4) The GDC's reconsideration. The GDC reconvened on 8 April 2025 in order to reconsider SAG's exclusion in accordance with the IRP's direction. It decided to confirm its original decision by letter of 23 April. The challenge in these proceedings is only to the GDC's reconsideration decision, but the earlier stages in the process are material. It will be necessary to say a little more about them.

The Guidance and the School Policy

[8]Selected parts of the Guidance are in these terms:- Permanent exclusion 11. A permanent exclusion is when a pupil is no longer allowed to attend a school (unless the pupil is reinstated). The decision to exclude a pupil permanently should only be taken:• in response to a serious breach or persistent breaches of the school's behaviour policy; and• where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school. [This is referred to in the papers in this case as “the second limb” and I will also use that term]. …….. Reasons and recording exclusions 16. The government trusts headteachers to use their professional judgement based on the individual circumstances of the case when considering whether to exclude a pupil. The reasons below are examples of the types of circumstances that may warrant a suspension or permanent exclusion.• Physical assault against a pupil• Physical assault against an adult• Verbal abuse or threatening behaviour against a pupil• Verbal abuse or threatening behaviour against an adult• Use, or threat of use, of an offensive weapon or prohibited item that has been prohibited by a school’s behaviour policy• Bullying• Racist abuse• Abuse against sexual orientation or gender reassignment• Abuse relating to disability 17. This list is not exhaustive and is intended to offer examples rather than be complete or definitive. …… Guidance on considering the reinstatement of a suspended or permanently excluded pupil 123. The governing board should ask all parties to withdraw from the meeting before making a decision. Where present, a clerk should stay to help the governing board by reference to their notes of the meeting and with the wording of the decision letter. 124. In reaching a decision on whether a pupil should be reinstated, the governing board should consider whether the decision to suspend or permanently exclude the pupil was lawful, reasonable, and procedurally fair. This should consider the welfare and safeguarding of the pupil and their peers, the headteacher’s legal duties, and any evidence that was presented to the governing board in relation to the decision to exclude. Part twelve: The governing board’s duty to reconsider reinstatement following a review When an IRP directs or recommends a pupil’s reinstatement, the governing board has the opportunity to look at the pupil’s reinstatement afresh. This section offers guidance on how this reconsideration should be undertaken and the necessary next steps. Guidance on the governing board’s duty to reconsider reinstatement following a review 254. Where the panel directs or recommends that the governing board reconsider whether a pupil should be reinstated, the governing board must reconvene to do so within ten school days of being given notice of the panel’s decision. Notice is deemed to have been given on the day of delivery if it is delivered directly or on the second working day after posting if it is sent by first class mail. 255. It is important that the governing board conscientiously reconsiders whether the pupil should be reinstated, whether the panel has directed or merely recommended it to do so. Whilst the governing board may still reach the same conclusion as it first did, it may face challenge in the courts if it refuses to reinstate the pupil, without strong justification. 260. The reconsideration provides an opportunity for the governing board to look afresh at the question of reinstating the pupil, in light of the findings of the IRP. There is no requirement to seek further representations from other parties or to invite them to the reconsideration meeting. The governing board is not prevented from taking into account other matters that it considers relevant. It should take care to ensure that any additional information does not make the decision unlawful. This could be the case, for example, where new evidence is presented, or information is considered that is irrelevant to the decision at hand. Permanent exclusion …….. Guidance on considering the reinstatement of a suspended or permanently excluded pupil Part twelve: The governing board’s duty to reconsider reinstatement following a review Guidance on the governing board’s duty to reconsider

reinstatement following a review

[9]This is repeated in the Winchmore School Exclusion and Suspension Policy dated March 2024. Its nature is apparent from the Policy Statement with which it begins, in which I have emphasised some passages:- “Policy Statement The overwhelming majority of students at Winchmore School will never receive a fixed term suspension or a permanent exclusion. However, fixed term suspensions and permanent exclusions will only be used in the case of a serious incident in order to maintain a safe and secure learning environment, enjoyed by all members of the school and local community. When any fixed term suspension or permanent exclusion is considered, all circumstances will be taken into consideration, ensuring a balance between the needs of the individual student(s) who may receive a fixed term suspension or need to be permanently excluded, against the needs and safety of the students and adults in the school community. Winchmore School operates a fair, equitable and consistent system for fixed term suspensions and permanent exclusion from school, applicable to all members of the Schoolcommunity. Fixed term suspensions and permanent exclusions are only used when it is themost appropriate way of supporting the school's Behaviour Policy, Minimum Expectationsand the safety and wellbeing of the wider community. Fixed term suspensions and permanent exclusions are one of many options used to address unacceptable behaviour. Fixed term suspensions are used primarily as a strategy for supporting a student in understanding the impact of their behaviour, providing time out to reflect and consider the effects of their actions on others and the wider community. Winchmore School is an inclusive school and is committed to ensuring a safe and secure learning environment allowing students to engage in learning activities, alongside their peers, in order to fulfil their full potential. However, Winchmore School will not tolerate behaviour that prevents teaching and learning taking place or behaviour that puts the health, safety or well being of another person at risk. Our Behaviour Policy aims to reduce the need to use exclusions and suspensions as a sanction but where necessary, it is applied fairly and consistently at all times. Both our Behaviour Policy and Exclusions & Suspensions Policy are monitored and updated regularly with reference to the Local Authority Framework and DfE Guidance, and are available on the school website.”[10]The Exclusions and Suspensions Policy does not contain any further guidance about the criteria for imposing a permanent exclusion as opposed to the lesser sanction of a fixed term suspension. SAG had been suspended for 5 days following her return from the skiing trip and the Headteacher’s exclusion decision was taken following a “Re-Integration Meeting” held at the conclusion of the 5-day period. No-one suggests that this 5-day suspension was not warranted, so the question for decision was whether the additional sanction of a permanent exclusion was appropriate. On that question the Exclusions and Suspensions Policy is silent, except that it(1) makes it clear that fixed-term suspensions and permanent exclusions can both “be used in the case of a serious incident in order to maintain a safe and secure learning environment, enjoyed by all members of the school and local community” and for “unacceptable behaviour”; and(2) refers to the Behaviour Policy which means the two documents are to be read together.[11]The Winchmore School Behaviour Policy dated October 2024 says this, so far as relevant:- “Pupils are responsible for Ensuring that mobile phones are not seen or heard in school, should a member of staff see or hear a student using their phones when not directed to for a learning task, students should expect to have their phone confiscated.” “Fixed term suspensions: May be used for serious incidents where the Behaviour Policy has been breached. This could include but is not limited to; ● threatening or abusive behaviour of any kind, fighting, refusing to follow authority, persistent disruption to learning, bringing the name of the school into disrepute, bringing any dangerous/ illegal or offensive items into school, damage to school property. ● The length of each suspension is carefully considered taking into account the nature and seriousness of the incident, the past record of the pupil and the effect of the incident on the school community.” “Permanent exclusion Permanent exclusions is the ultimate sanction and will only be considered in cases of serious persistent and on-going disruption or in cases of extremely serious one-off incidents. Serious acts of violence, drug misuse (which includes vaping and being in possession of vapes/illegal substances) or acts of violence that involve a weapon, will result in a recommendation for suspension or permanent exclusion.”[12]The Behaviour Policy therefore provides that fixed-term suspensions were available for “serious incidents”, but permanent exclusion was available for “extremely serious incidents” where there was a “one-off” incident. This was a “one-off incident”, although it will be necessary to say something further about SAG’s disciplinary record below.[13]Mr Paul Greatorex, who appeared for the respondent, submitted that Mr Ollie Persey, who appeared for SAG, was concentrating on the “wrong policy”, in that he relied on the Behaviour Policy and did not refer to the Exclusions and Suspensions Policy. In my judgment they need to be read together, as the Exclusions and Suspensions Policy expressly refers to the Behaviour Policy. It appears that SAG’s case has varied over time in some respects, but Mr Persey accepted in answer to questions from the court that SAG’s conduct (described below) was “serious”, but submitted that it was not “extremely serious”. Mr Greatorex suggested that this had never been stated before. In reality, this did not matter very much because, whether she accepted it or not, it is quite apparent that the misconduct was at least “serious”, and the question was whether it was so serious (“extremely serious” is the phrase in the Behaviour Policy) that a permanent exclusion was justified and required. The Exclusions and Suspensions Policy is silent on the criteria to be applied in taking this decision, and generally treats fixed-term suspension and permanent exclusion together. The Behaviour Policy in contrast does identify the approach to be taken when considering whether a permanent exclusion is appropriate rather than a fixed term suspension. I consider therefore that given the decision which was before the Headteacher and then the GDC, the Behaviour Policy is the more important of the two documents. Further, and importantly, it is the Behaviour Policy which is mentioned in the Headteacher’s exclusion letter. I do not accept Mr Greatorex’s criticism of the appellant’s case in this respect.

The misconduct

[14]SAG was 14 years old when she went on a school skiing trip to Italy in January 2025. She had been a pupil at the School since February 2024. According to her witness statement she had settled in well and was enjoying her time at school, having made friends. She valued the fact that she could progress as a footballer there, and also worked at her academic studies. The point at which she was excluded was the time when she had to consider what GCSEs to take and was an important phase in her schooling. She had been very close to her father who died suddenly on 13 September 2024 which caused her great distress which she describes in her statement. This is confirmed by her mother and is not in dispute. Her mother had previously been treated for cancer and was again diagnosed with cancer in 2024 which created and additional level of stress for both SAG and her mother.[15]SAG says this about how she came to be on the skiing trip, and the circumstances in which she was permitted to have a phone while she was away:- “7. I was not meant to go on the ski trip until 2026 but my mum told me spaces were available for the 2025 trip. We talked about it and decided I should go especially as my best friend, CR, was going too. My mum is usually really protective and never lets me sleep over at anyone's house so this was a big deal. It was my first time ever being away from home. 8. Even though I was excited, I was also really anxious. I started having bad dreams; nightmares about getting lost or stranded and also about losing my dad again. I tried to laugh them off in the morning but deep down I was scared. My mum saw I was struggling and spoke to the school to ask if I could take my phone on the trip. My mum arranged with the school that I could bring my phone. This was just so I could keep in contact with my mum, take pictures and use it as an MP3. That made me feel a lot better. I was told that I was not allowed to have the SIM card in the phone but that I would be able to use the hotel Wi-Fi instead. That confused me as, to me, having Wi- Fi or using my SIM felt the same so I left the SIM in my phone. 9. I left for the ski trip on Saturday 18 January 2025. During the journey, I messaged my mum when we arrived at the airport, when we checked in, when we landed and when we got to the hotel. I mostly used my phone in the mornings or evenings just to talk to her. During the day while skiing, I always left my phone in my room.”[16]There was a rule that mobile phones were not allowed either in the School or on trips. That rule was varied in SAG’s case to the extent that she described. She was aware that she was not allowed to have a SIM card in the phone, but decided not to remove it for the reason she gave. Mr Greatorex accepted that permanent exclusion would not be justifiable simply for this breach of the instruction she had been given. The principal significance of a SIM card in these circumstances is that the phone can be used when there is no access to wifi, as long as there is mobile phone reception. The evidence is silent on whether the SIM card would materially add to the functionality of the phone in the circumstances of this skiing trip.[17]While on the trip, a teacher became aware that SAG’s phone had a SIM card in it, and confiscated it. SAG’s witness statement continues:- “12. I was really upset, especially because my phone was the only way I could stay in touch with home. My friends and I started talking about ways to get it back. We had made friends with students from another school who were staying at the same hotel. Their school allowed them to have their phones. One of the students suggested they could pretend the phone was theirs and ask for it back. That plan did not work. I then told the teacher that the phone was mine and asked if I could have it back but the teacher refused to return it.13. Just before the disco, someone told me that they had managed to get the key to the teachers' room where my phone was. The hotel had a key board in the reception where you hung up your key to your room if you were leaving the hotel. It all seemed like a joke at first, something funny and silly that no one thought would actually go far. Around 15 of us, students from both schools, agreed to check if we could find the phone on our way to the disco.14. We all went to the teachers' corridor. Someone used the key and opened the door. I do not know how many students actually went in but some stayed outside to watch for teachers, and some of us, including me, went inside to look. After a few seconds, someone outside shouted "they're coming!" and everyone ran. I was the last to try and leave but the door shut before I could get out.15. I do not know who shut the door. I panicked. I could hear the teachers outside the door and I did not know what to do. While hiding, I saw that the key had been left behind by the student who took it so I picked it up and hid in the bathroom.16. The teacher started knocking on the door and telling me to open the door. I did not open the door at first because I was scared. When they said it again and again, I eventually opened the door. Most of the teachers were outside the room. They were really angry. Everyone else had run except CR [a friend of SAG]. The teachers started questioning me. I only gave one-word answers because I was scared and I did not want to get anyone else in trouble. 17. Mr Higgs, the Assistant Headteacher, pulled me aside and asked me where the key was. At first, I lied and said I did not know hoping someone else would come forward and tell the truth. When no one did, I eventually told Mr Higgs that I had the key and gave it to him.”[18]It will be apparent that this incident involved several strands of misconduct. First, she ought not to have had a SIM card in her phone. The exclusion letter referred to this as part of the reasons for the exclusion, but the first GDC decision referred only to “the incident on the skiing trip on 23'ª January 2025, involving entering a teacher's room without permission in an attempt to retrieve her confiscated phone”. Secondly, SAG participated in an attempt to recover it which involved entering a teacher’s private hotel room to take back something which she knew had been lawfully confiscated by the school. Thirdly, when she was caught she told lies to deflect blame. She did not apologise until after the exclusion decision had been made.

The exclusion decision

[19]The note of the reintegration meeting records what was said, but does not describe the decision-making process or the decision itself. The incident was investigated. The appellant’s mother made a number of observations and asked questions, and the appellant herself gave an account of what happened on the skiing trip. The exclusion letter is sufficiently described above. The reasons given were brief (and none the worse for that). Although they refer to the Behaviour Policy, the misconduct is described as “serious” and not “extremely serious”.

The First GDC Decision, meeting on 3 March and letter of 6 March

[20]A minute was created to record the discussion which preceded the decision. It will be necessary to set out the events of this meeting at some length because they resulted in the quashing of the decision by the IRP. Underlying the complaint about the GDC’s second decision on reconsideration is the suggestion that they did not really put right what had gone wrong first time. The account given here is entirely taken from the minute.[21]This meeting was in two parts. During the first part there were three governors present, the Headteacher was present and the appellant attended with her mother and an advocate. The appellant, her mother and advocate then withdrew and the second part of the meeting took place in their absence, but the Headteacher remained. The IRP was critical of this.[22]During the first part of the meeting, the Chair introduced the subject of the meeting and explained the procedure which would be adopted. This was explained as follows:- (c) The Chair described the process which the meeting would follow: * the School's representative would be asked to summarise its case for the decision to permanently exclude the pupil; * members of the Panel would ask any questions they wished to raise; the parent or their representative would also have the opportunity to ask questions; * the parent or their representative would then be requested to respond with any representations and evidence they considered was relevant; * again, Panel members would put any questions they had for the parent and the School's representative could put any questions they had for the parent; * the Chair would then summarise what they had heard to make sure they had a correct understanding; * the Chair would then ask the parties to leave the room and the Panel would go on to consider their decision with the assistance of the Clerk. * the School would be informed of the decision of the Panel on the following day and the School would telephone [the appellant’s mother]. The Chair would send a formal letter confirming the decision and the reasons for the decision.[23]The GDC departed from the penultimate bullet point in this list. The Panel considered its decision in the presence of the Headteacher, who was not merely the “School’s representative” but the original decision-maker and a person of considerable influence.[24]In the first part of the meeting, the Headteacher set out the case for the decision to exclude the appellant permanently. That case focussed, as it inevitably would, on the serious nature of the conduct and its damaging effect on pupils and staff at the school. There has been no criticism of the way this was done. It is worth recording, because of what happened later, that during the School’s case, the governors expressly stated that the appellant’s previous disciplinary record did not count against her. The record states:- “Governors noted from her behaviour log details that to date she had accumulated 30 points which, while above the school average for 95% of students during their time at Winchmore, was not considered to be excessive or indicative of persistent challenging behaviour. [The Headteacher] commented that [she] had settled in well and had contributed well to the school community and there were no issues noted with her academic record.”[25]The record also states this:- “[One of the Panel] enquired whether while in the teacher's room, there was any evidence of tampering with, damage or loss to personal confidential information or student medication and [the Headteacher] confirmed that there had been no such damage or loss.”[26]The Headteacher also confirmed in answer to a question from the advocate that there was no evidence of any other reason for the appellant entering the teacher’s room other than a desire to recover her phone.[27]SAG’s case was then presented with the assistance of the advocate. She questioned whether the entering of the room to recover the phone represented a serious breach of trust and submitted that “it could not be equated with bringing a knife in to school or assaulting a member of staff; which were examples of types of serious behaviour included in the 2024 DFE guidance on suspensions and permanent exclusions”. This is a reference to paragraphs 16 and 17 of the Guidance, set out at [6] above. She emphasised the emotional difficulties being experienced by the appellant, her lack of a significant disciplinary record and submitted that permanent exclusion was not proportionate. There was discussion about the appellant’s receptiveness to support. The advocate said that the appellant had apologised for what she had done wrong, and expressed remorse.[28]The parties then summarised their cases, without adding anything of substance to what had already been said, except that there appears to have been an exchange between the Headteacher and the advocate which is recorded thus:
“[the advocate] asked [the Headteacher] whether any teachers had commented that they would be reluctant to teach due to her behaviour and JOW responded that he was not aware of any but that if there were, he would direct them as appropriate.”
[29]I shall set out the rest of the minute in full, including an immaterial error in the numbering of sub-paragraphs (there are two sub-paragraphs (c)):- Clerk's note [the family and advocate] left the meeting at 12.17 pm. 5. Panel deliberations(a) The Chair stated that he was satisfied that the Headteacher's decision had been based on one single serious incident. The Pack set out the events of the day of the incident and there was no question that they had taken place and the facts were accepted. The Chair noted that the parents and Local Authority (LA) had been informed at the right time. The LA had provided its statement which the Chair considered. Subject to any comments from the other members of the panel, the Chair was therefore satisfied that the decision by the Headteacher had been lawful.(b) The other members of the panel agreed. They felt that the Headteacher had a duty to consider staff and pupils' welfare.(c) Regarding whether the process had been fair, the Panel noted that school staff had tried to engage with [SAG] regarding offering counselling and support in recognition of her emotional well-being and mental health. (c) Having carefully taken in to account all the available information and additional comments noted during the meeting, the panel were satisfied that the decision to permanently exclude had been lawful and procedurally fair. However, the panel had concerns regarding whether the sanction of permanent exclusion was proportionate given [SAG]’s personal circumstances and her overall school record and behaviour points. The panel also questioned whether the school case had fully met the requirements of the definition of the circumstances when a permanent exclusion can be made. The first part of this guidance states that it could be made "in response to a single serious breach or persistent breaches of the school's behaviour policy." The panel were satisfied that the incident involving had been such a one off serious breach. However, the second part of the guidance states that and" where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school." The panel did not believe that the behaviour or conduct of in the incident had shown any evidence of physical assault, violence or aggression or threat to staff or other pupils, or any other conduct which could be considered to present a safeguarding risk. However, the panel did question whether allowing to return to school would send the wrong message and indicate that governors had condoned poor behaviour. The panel also questioned what behaviour support plans would be needed to support [SAG] and monitor [SAG]'s behaviour along with working with the Mother and counselling services and how the school would manage this. In view of the above, the panel questioned whether permanent exclusion was the correct sanction and whether the school could have considered alternative sanctions and support for [SAG]. For this reason, the panel's initial view was not to uphold the school's decision to permanently exclude from school, but would hold further discussions with [the Headteacher] to discuss possible alternative integration strategies to allow [SAG] to return to school. Clerk's note: the meeting ended at 12.45 pm. Outcome from further discussions between the panel and the Headteacher(d) In a genuine attempt to be fair and reasonable to all the parties involved in, or affected by, this incident, and without prejudice to the Headteacher's decision, the panel further debated the advocate's suggestion, i.e whether alternative sanctions, other than permanent exclusion, could prove to be proportionate.(e) However, in investigating possible sanctions singly or in groups such as conditions measures constituting a further 'probation' the panel concluded that in practice they would be unenforceable, and or if the student failed to comply with the conditions there was no legitimate mechanism to revert back to the current permanent exclusion decision, and therefore no alternative sanction that would allow the student to stay at Winchmore while also respecting governors' obligation to support the welfare of the staff and other students.(f) From the above, it was agreed that allowing to remain at Winchmore School after such a serious incident would set a very dangerous precedent in that she entered a staff member's private space in search of a confiscated item in a room which contained the confidential information regarding all students and staff on the trip and personal belongings.(g) The panel agreed that this represented a breakdown in trust between the school and [SAG],so significant that it would have a detrimental effect on the school community and the safe and secure working environment of staff were she to be allowed to return to school. The panel believed that in conjunction with paragraphs (e) and (f) above, these points have covered the 'And" part of the guidance referred to in paragraph (c) above. The panel's final decision was therefore to uphold the decision to permanently exclude(h) The Chair would prepare the decision letter and the Clerk would draft the Minutes of the meeting. Clerk's note: the meeting ended at 12.45 pm Outcome from further discussions between the panel and the Headteacher The panel's final decision was therefore to uphold the decision to permanently exclude

Clerk's note: the meeting ended at 12.45 pm

[30]It is clear that there were discussions with the Headteacher following the “initial view” being formed, but the clerk has not recorded anything which he said.

The Independent Review Panel (IRP)

[31]The IRP received written submissions on behalf of the appellant settled by a different person (Mr Mal) from the advocate who had appeared before the GDC. This is a very long document which contains a number of tendentious suggestions for which there is no evidence. It also contains some much better points. It is 19 pages long and I will not set it out here. The School also lodged some written submissions defending the lawfulness of its decision.[32]The IRP issued its decision by letter of 31 March 2025. It said:- 3. The panel quashes the decision of the governing board of Winchmore School to exclude [SAG]. The panel directs that the governing body reconsiders its decision. Reasons for the panel's decision 4. In reviewing the governing body's decision, the panel were particularly concerned with the potential for the process pursued by the governing body to undermine principles of natural justice. The panel found that the approach set out in the minutes of the governing body's meeting was so fundamentally flawed that it could not meet public law requirements for a fair procedure. The panel's consideration of procedural impropriety 5. The school admitted in evidence that a discussion took place between the Headteacher and the governors in which proposals for sanctions to sit alongside readmission were raised. Details of this discussion were included within the minutes of the governing body's decision meeting. Neither the parents, nor their representatives, were in attendance for that discussion. The parties agreed that this was an ex parte discussion, i.e. a discussion that involved solely one interested party and the decision-making body. 6. That discussion took place in the Headteacher's office immediately after the parents left the governor's body's decision meeting. [they then set out part of the minute quoted above]. 7. In both evidence and submissions, the school suggested that these were not important parts of the matters to be determined, and that the practicalities of the potential sanctions were all that was discussed at that meeting. The panel did not agree. 8. The deliberations set out …. above are comments that relate to the proportionality of the exclusion decision, i.e. whether a less severe sanction could be put in place in order to avoid exclusion. That is a core part of the statutory regime, and the panel considers that [SAG] ought to have been present for such discussions. Her presence in those conversations could have, as was submitted on her behalf before the panel, led to alternative proposals for sanctions emerging beyond those produced by the Headteacher in what the school described as a "short" "3-4 minute discussion". 9. The school submitted that this was not part of the governor's decision meeting due to several reasons, including the subject matter of the discussion and its location. 10. The panel found difficultly in formally separating the discussion with the Headteacher from the other parts of the governors’ decision meeting for the following reasons:a. The discussion is included within the governors’ committee meeting minutes;b. The minutes record this as taking place before the end of the governors' final deliberations;c. The record of the discussion with the Headteacher is sandwiched between 2 noted minutes of times at which the meeting supposedly ended, and,d. The meeting was said to have happened shortly after the other "substantive" parts of the governor's decision meeting, and before later deliberations. 11. For the reasons set out at paragraph 10 above, the panel found that the discussion with the Headteacher constituted part of the governors’ decision meeting. It was thus a "meeting" for the purposes of the Exclusion Guidance. That means that the requirements in paragraphs 104 and 123 apply; [SAG] ought to have been "invited" to and "allowed to make representations" at this further discussion. The Headteacher should never have been present discussing matters in the appeal without her present and should have had no further involvement until the panel made its decision. 12. The panel found that the minutes showed a change in the consensus of the governing body immediately after their discussions with the Headteacher. 13. The governors seemed to arrive at an initial view before the discussion that expulsion would not be proportionate. [The IRP then set out extracts of the minute to show why this is so]. 14. The governors then come to the view that "no alternative sanction" "would allow the student to stay". It is stated that this would "set a very dangerous precedent" and that the "breakdown in trust between the school and was so significant that the statutory test was met. 15. Similar to the analysis set out above, the panel found on the balance of probabilities that the discussion did affect the governors' view of the matters to be considered in reviewing the exclusion. 16. Finally, it was submitted on behalf of the school that the existence of minor procedural flaws will not be sufficient to render a decision unlawful. That is correct in law; there must be something which is so flawed which renders the outcome unjust in order to quash a decision. 17. The panel considers the procedural flaws discussed above to go to the heart of what natural justice entails. The integrity of the decision has been impeached by the discussions of elements of the statutory test taking place without [SAG] .The panel found that [SAG] might have affected the governing body's conclusions had she or her advocate been present. For these reasons the panel quashes and directs that the school reconsiders the decision. The panel's consideration of the other grounds 18. Having found fundamental flaws in the procedure adopted by the school, the panel did not examine the parties in relation to the common law illegality or irrationality arguments put forward on behalf of [SAG]. Several of the issues raised above engage with the question of proportionality of the sanction, and the school should consider the case which has been put to it in considering the Appellant's education in the future. Points to consider upon reconsideration 19. The panel would encourage the governing body to reflect upon the points raised in Mr Mal's written submissions when it comes to reconsider its decision. 20. The panel also advises the governing body to set out precisely what, if any, factors it believes to be present under the second limb of the exclusion test in any minutes and any decision letter it writes in the future. [This refers to the second bullet point in paragraph 11 of the Guidance set out at [6] above, which says permanent exclusion may occur where “allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school.”] 21. Though the panel did not quash this decision due to the provision of inadequate reasons, we recommend that the school should articulate what danger or concern it felt a student poses at all stages of the exclusion process in order to provide parents with adequate reasons to understand why their child has been excluded. It was occasionally unclear from the documents what level of seriousness the school perceived in the punished behaviour. The panel would urge the school to articulate any risk identified in student behaviour more clearly on future occasions. 22. Any reconsideration by the governing body must take place within 10 school days of the date of this letter. Should the governing body fail to reconsider the exclusion within 10 days, it is ordered that the London Borough of Enfield makes a downward adjustment of £4,000 to the school's budget share pursuant to Regulation 7(5)(b)(ii) of the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012. Reasons for the panel's decision The panel's consideration of procedural impropriety The panel's consideration of the other grounds Points to consider upon reconsideration

The GDC Reconsideration

[33]On 8 April 2025 the same three governors met to reconsider their first decision, as they had been directed to do. They did not hold a further hearing but issued a decision letter with reasons for upholding their original decision to uphold the Headteacher’s permanent exclusion decision. The letter rehearsed some of the background and set out the IRP’s paragraphs 19-21, and continued in this way: “However, the panel noted that the scope of the issues to be considered by the IRP had focused solely on the grounds of procedural flaws and that they had not agreed to consider any aspects regarding irrationality or illegality in their considerations. With this in mind, the panel felt that they did not need to respond to any concerns raised on irrationality or illegality issues. The panel acknowledged the IRP finding that there had been procedural errors in the process in reaching the decision to uphold the school's decision to permanently exclude [SAG]. However, the panel wished to emphasise that in holding the "ex-parte" meeting with the Headteacher, after the family and representative and clerk had left the meeting, there was no dishonesty intended or deliberate non-compliance with suspensions and exclusions policies. The panel believed that they had acted in the best interests of all parties by consulting with the Headteacher to consider whether an alternative sanction, equitable to permanent exclusion, existed. With regard to paragraph 19. the panel confirmed they had read the Appellant's submission and reflected on its content. Having done so however, the panel emphasised they did not agree with the vast majority of the conclusions reached and noted a number of issues, inconsistencies, and inaccuracies in the response, including but not limited to the following:” [the GDC then made a series of points about Mr Mal’s submissions]

[the GDC then made a series of points about Mr Mal’s submissions]

[34]For these reasons the GDC did not in fact reconsider any part of its first decision except the approach it had taken to the second limb, notwithstanding the fact that the earlier decision had been quashed and the contents of paragraphs 18 and 19 of the IRP decision letter. This was not a case, like TZA, where an IRP had recommended reconsideration of a decision. No challenge has been made directly to this approach.[35]The GDC said this about the second limb (I have used numbers instead of bullet points for the sub-paragraphs in paragraph 3 for ease of reference):- 3. Permanent Exclusion 2nd Limb Criteria(1) With regard to paragraphs 20 and 21 of the IRP letter, and as the criteria for meeting the first limb were not disputed, governors referred to their assessment of the underlying reasons for meeting the criteria for the second limb of the PEX decision.(2) The panel had re-examined all the paperwork submitted to date from all parties. In conclusion, they were satisfied that having considered all the available evidence and the risks posed to other students, staff and the wider school community by returning to school, that the second limb criteria had been met.(3) This was based on the incident representing a serious breach of trust between the pupil, her Mother, the school, other students, and the wider school community. The investigation had shown that [SAG] had lied to both her Mother, regarding not bringing a SIM card with her, and school staff regarding having removed the SIM card from the phone and blaming other students for taking the room key, then subsequently been found with the key on her person.(4) In re-examining all the original documentation which had been circulated to all parties, the panel had re-considered the risks to other students, staff and the wider school community, relating to allowing [SAG] to return to school. In considering these factors, governors agreed with the Headteacher that's behaviour in the incident represented a serious breach of trust and an irrevocable breakdown in the relationship between the school and [SAG].(5) In the panel's view, such a blatant refusal to follow instructions breaches the fundamental principles underpinning the school's behaviour code. A failure to follow instructions places other students, staff, and the wider community, at risk, and undermines safeguarding policy and procedures.(6) In addition, the incident had damaged the good reputation of the school and its relationship with the ski resort hotel and had impacted on how other schools using the hotel perceived the school following the poor behaviour demonstrated by [SAG].(7) The panel noted that while the Minutes of the original panel meeting did not specifically mention it, by entering a member of staff's room to retrieve an item of property without permission, she had committed an offence of burglary under section 91A of the Theft Act, 1968.(8) It was also considered that, on the balance of probabilities, may have gained unlawful access to another member of staff's room, the teacher who had originally confiscated s phone, in an attempt to retrieve her phone.(9) Given the above factors demonstrating a serious breach of trust between the school and [SAG] the panel believed that allowing her to return to school would send the wrong message to other students, staff, and the wider school community, condoning inappropriate behaviour and setting a poor precedent on how the school responded with sanctions for breaches of the school's behaviour [policy].(10) The panel also felt that[SAG]'s return to school would impact on other students' concerns around feeling safe and the vulnerability of their personal property. In particular the children who were present who were implicated by [SAG] as being involved, but were in fact innocent by-standers. In addition, the teachers involved in the incident had felt let down and vulnerable as a result of SAG’s behaviour.(11) As part of the re-consideration of their decision, the panel reviewed the school behaviour log for [SAG]. This had been included as part of the pack circulated to all parties and during the initial PEX hearing, but had not been discussed in depth at the PEX and no questions were raised regarding specific incidents in the log by either the appellant or the panel.(12) The panel noted [SAG] that had incurred 30 behaviour points since she joined the school on 20th February 2024 and while this was not exceptionally high, it was noted that the average number of behaviour points per student was around 10 over a 5 year period. This showed that [SAG]’s points level was nevertheless significant compared to the majority of pupils.(13) In response to a comment in Mr Mall's submissions, [SAG] is referred to as a model student. The panel disagreed with this view and referred to the behaviour log where the teachers reference, refusal to follow instructions, lack of respect towards staff, being argumentative, rude, and demonstrating poor behaviour.(14) The Panel highlighted three incidents in particular in the behaviour log relating to a verbal threat of violence.(15) On 21st April 2024, an incident involving verbal abuse to a member of staff along with a threat of violence. On 2nd December 2024, an incident in which there was a further verbal assault against a member of staff with using the "F" word. On 13th December 2024, an indirect verbal assault against a member of staff in the presence of other students, in which had stated after the teacher was leaving, but within audible distance, she's really p…….g me off."(16) It was noted that at no time had [SAG] offered an apology for her poor behaviour to staff during her time at Winchmore, although the panel has noted the written apology submitted regarding the ski trip. The panel believe that the above incidents taken together demonstrate [SAG]'s lack of respect for authority and a lack of courtesy towards others.(17) Regarding initiatives to support [SAG’s] emotional well-being and mental health issues, in reviewing the documentation, the panel felt that the school had pursued this matter with [SAG] and her mother over [SAG ']s time at Winchmore and there was evidence of support offered documented in the pack. 3. Panel's Reconsidered decision Having re-examined all the documentation from the original PEX meeting and reviewed the submissions provided by Mr Mall, and in considering the additional comments in 2. above, the panel believe that both limbs of the criteria to invoke permanent exclusion of [SAG] have been satisfactorily met and consequently the panel stands by its original decision to uphold the school's decision to permanently exclude [SAG].

The Grounds of Challenge that decision and the Grounds of Appeal to this court

[36]The judge identified the grounds of challenge (I shall call these “the Challenges” to distinguish them from the Grounds of Appeal which are not precisely aligned with the Challenges) before him as follows:- “The Grounds of Challenge 19. The Appellant challenges the Defendant’s decision on the following grounds: i) Ground 1: The unreasonable finding that the Claimant’s conduct amounted to a sufficiently serious breach of the school’s behaviour policy to impose a permanent exclusion. ii) Ground 2: The unreasonable and irrational finding that the Claimant remaining in the school would “seriously harm” the education welfare of the pupil or others such as staff or pupils in the school. iii) Ground 3: The unreasonable and irrational failure to adequately consideralternatives to permanent exclusion.”[37]As I shall explain more fully below, the judge dismissed all three Challenges.[38]The Grounds of Appeal (“the Grounds”) are as follows:- “Ground 1: The Judge erred in law in finding that the Defendant’s conclusion that the Claimant had committed a criminal offence was immaterial” Ground 2: The Judge erred in law in finding that the Defendant lawfully applied its behaviour policy Ground 3: The Judge did not apply a “high intensity of review” despite finding that it wasrequired.”[39]The school, by a respondent’s notice challenges the decision to apply a heightened standard of review in this case.[40]The judge set out the “Legal Framework” which applies. This is familiar territory and has been explained in TZA, referred to at paragraph 2 above, and it is not necessary to recite it all in this judgment. The 2002 Act (by s51A) vests the power of permanent exclusion of a pupil of a maintained school in the headteacher. The 2012 Regulations made under the 2002 Act establish the process which was being followed in this case and regulation 9 requires all relevant decision-makers to have regard to the Guidance.[41]The judge observed that Underhill LJ in TZA referred to Sedley LJ’s judgment in R v. Governing Body of Dunraven School ex parte B[2000] LGR 494 at page 498d-e in which it had been said that the discipline committee of a governing body is not a tribunal of appeal from the headteacher but part of a single decision-making process. Underhill LJ said (at paragraph 72) that it was wrong to regard the role of the governors’ panel as being simply to review the decision of the headteacher for legality and rationality. The judge also quoted a passage in TZA at [92] about the extent to which a GDC on reconsidering a decision following a decision by the IRP should give reasons. This passage seems to me to be an application of established law to the specific facts of that case. In any event, the challenge in this case is not to the reasons given for the decision but to its reasonableness.[42]The judge relied on a decision of Fordham J in R (RWU) v A Governing Body of A Academy[2024] EWHC 2828 (Admin) (“RWU”) who explained the process of reconsideration following quashing by the IRP as follows:- “[69] ……..The quashing by the IRP of the GDP’s original non-reinstatement decision meant that the decision had been set aside and did not in law subsist as a lawful discharge of the GDP’s statutory decision-making function. It meant that there needed to be a reconsideration “afresh”. The GDP would be reconsidering – afresh – whether the Principal’s PEX decision was lawful, reasonable and procedurally fair. In the present case, there did not need to be a rehearing of all the evidence ‘de novo’, and there did not need to be a panel of three new individuals…….. Where there is a quashing, after a decision applying judicial review principles, what matters is for the GDP “to look afresh at the question of reinstating the pupil, in light of the findings of the IRP”, which is how the Guidance puts it (§264). What quashing does is to require reconsideration afresh.” “[74] …….The GDP was not reconsidering afresh the Principal’s decision to impose PEX. It was reconsidering afresh the lawfulness, reasonableness and procedural fairness of the Principal’s decision. In particular, the GDP needed to make sure it was putting right what the IRP had identified having gone wrong the first time.”[43]The judge then considered submissions which had been made to him about the appropriate standard of review in a case of this kind, involving permanent exclusion of a child from a school. He cited Fordham J in RWU at paragraph 57 who said:- “I accept that the context and circumstances, the questions about safeguarding and vulnerability, the importance of education and the protective environment of education and school, are all factors which point in favour of a relatively exacting intensity of review. What I accept is that, without changing the applicable legal principles, the impact and implications for the pupil facing PEX does tend to increase the scrutiny which the judicial review Court will bring to bear. I also think it tends to qualify the breadth of the “benevolence” with which the court will read a reasoned decision. Finally, I think it does tend to heighten the caution with which the court already approaches Retro-Reasons. When “anxious scrutiny” was first introduced at common law in human rights cases, it had a lot to do with the scrutiny of reasons: see R v SSHD, ex p Bugdaycay [1987] AC 514, 534A and R v SSHD, ex p Brind [1991] 1 AC 696, 757B-C. The implications of PEX for the Claimant were and are highly significant.”[44]Chamberlain J, in a case not involving education, gave an analysis of the nature of rationality review and the relevance of the standard of review which is, to my mind, compelling. In R (KP) v. Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin) (“KP”) at paragraphs 56 and 57 he described elements of ‘unreasonableness’ as “process rationality” and “outcome rationality”. “55. In most contexts, rationality is the standard by which the common law measures the conduct of a public decision-maker where there has been no infringement of a legal right, no misdirection of law and no procedural unfairness. It encompasses both the process of reasoning by which a decision is reached (sometimes referred to as “process rationality”) and the outcome (“outcome rationality”): see e.g. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, [98] (Leggatt LJ and Carr J).56. Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that “does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic”: R v Parliamentary Commissioner for Administration ex p. Balchin [1998] 1 PLR 1, [13]. In similar vein, Saini J said that the court should ask, “does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?”: R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [33].57. Outcome rationality, on the other hand, is concerned with whether – even where the process of reasoning leading to the challenged decision is not materially flawed – the outcome is “so unreasonable that no reasonable authority could ever have come to it” (Associated Wednesbury Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-4) or, in simpler and less question-begging terms, outside the “range of reasonable decisions open to a decision-maker” (Boddington v British Transport Police [1999] 2 AC 143..”[45]Chamberlain J then went on to consider the standard of review, and to examine the phrase “anxious scrutiny”. The phrase perhaps implies that there may be some cases where it is not necessary for the judge to scrutinise an issue anxiously, which may imply that there may be some judicial tasks which can be undertaken lightly. This is, of course, not what it means. Chamberlain J said this:- “60. In R (YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448, Carnwath LJ (with whom Moore-Bick and Etherton LJJ agreed) said at [23] that the term “anxious scrutiny” had gained a “formulaic significance”. At [24], he continued as follows:
“…the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind indeed, one which might be thought an ‘axiomatic’ part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.” 61. Since then, it has been said often that rationality is a flexible standard. In R v Department for Education and Employment ex p. Begbie [2000] 1 WLR 1115, 1130, Laws LJ (with whose reasons Sedley LJ agreed) said that the Wednesbury principle was itself “a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake”
. In Kennedy v Charity Commission [2014] UKSC 20, [2015] AC 455, Lord Mance (with whom Lord Neuberger and Lord Clarke agreed) suggested at [55]-[56] that in some cases there may be no difference between rationality review and “European” (i.e. proportionality-based) review. And in Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, Lord Sumption (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) said this at [107]:
“The differences between proportionality at common law and the principle applied under the Convention were considered by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 27-28. In a passage with which the rest of the House of Lords associated itself, he identified three main differences: (i) a proportionality test may require the court to form its own view of the balance which the decision-maker has struck, not just decide whether it is within the range of rational balances that might be struck; (ii) the proportionality test may require attention to be directed to the relative weight accorded to competing interests and considerations; and (iii) even heightened scrutiny at common law is not necessarily enough to protect human rights. The first two distinctions are really making the same point in different ways: balance is a matter for the decision-maker, short of the extreme cases posited in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But it may be questioned whether it is as simple as this. It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome.” “…the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind indeed, one which might be thought an ‘axiomatic’ part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.” “The differences between proportionality at common law and the principle applied under the Convention were considered by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 27-28. In a passage with which the rest of the House of Lords associated itself, he identified three main differences: (i) a proportionality test may require the court to form its own view of the balance which the decision-maker has struck, not just decide whether it is within the range of rational balances that might be struck; (ii) the proportionality test may require attention to be directed to the relative weight accorded to competing interests and considerations; and (iii) even heightened scrutiny at common law is not necessarily enough to protect human rights. The first two distinctions are really making the same point in different ways: balance is a matter for the decision-maker, short of the extreme cases posited in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But it may be questioned whether it is as simple as this. It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome.”
[46]This analysis does not depend on whether the context includes Convention rights. In KP Chamberlain J analysed the authorities and said this, in a passage with which I agree:- “76. First, the court’s approach to assessing the rationality of a decision varies depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences. In this connection, it is not necessary to identify a “right” impacted by the challenged decision. It is true that, in Bugdaycay itself, Lord Bridge made reference at 531 to the “right to life”, but what made a “more rigorous examination” appropriate was not the existence of such a right but rather “the gravity of the consequences” flowing from the challenged decision – i.e. the fact that the decision was said to have put the claimant’s life at risk. This is consistent with the formulations used by Laws LJ in Begbie (“the nature and gravity of what is at stake”) and by Lord Reed in King (“the nature of any interests engaged and the gravity of any adverse effects on those interests”). The interests in question may be such as to ground a right properly so-called (as in ex p. Smith and Pham), but not necessarily. In many of the situations in which the heightened standard of review applies, the claimant will have no prior right, whether under statute or at common law, to the benefit which the decision denies him.”[47]Having considered these decisions, the judge decided that a heightened intensity of review was appropriate in this case, but he also held, in respect of each of his decisions, that they would have been the same even if he had accorded greater deference (benevolence) to the decision-makers.[48]The judge granted permission to apply for judicial review but dismissed the challenge in all three cases. He identified the proper approach for the GDC as follows:- “44. The effect of the IRP’s decision to quash was that the non-reinstatement decision had been set aside and did not in law subsist as a lawful discharge of the Governors’ Panel decision making function. At the re-consideration stage the Defendant was required to consider afresh whether the Headteacher’s decision to permanently exclude the Claimant was lawful, reasonable, and procedurally fair (applying the approach set out in paragraph 124 of the Statutory Guidance). Applying that guidance does not mean that the Governors’ Panel was simply to review the decision of the Headteacher for legality and rationality. The object of the procedures, taken together is to allow the governors to make a decision for themselves (TZAat paragraph 72). 45. At the reconsideration stage the Governors’ Panel needed to make sure that it was putting right what the IRP had identified as going wrong at the reinstatement decision stage.”[49]As to Challenge 1, to the finding that the Claimant’s conduct amounted to a sufficiently serious breach of the school’s behaviour policy to impose a permanent exclusion, the judge correctly recorded that the decision letter of 8 April 2025 suggests that this question was not addressed at the reconsideration stage. Paragraph 3(1) of the letter, quoted above, says that the criteria for the first limb were “not disputed”. This, on its face, appears to be an error, because they were disputed. The criteria for Limb 1 in the Guidance require a “serious breach of the school’s behaviour policy”. The Behaviour Policy itself requires an “extremely serious breach”. I have recorded at [25] above the submission on this subject made by the advocate on 3 March 2025 and the same was also submitted by Mr Mal in his lengthy written submissions for the IRP which the IRP invited the GHDC to consider. The judge said:- “52……In my judgment, reading the minutes fairly and whole, and applying an intense degree of scrutiny, the reference to the criteria for the first limb not being disputed must be understood as meaning that the facts which formed the basis for the finding on the first limb were not in dispute.”53. Considering the process as a whole in my judgment the Governors’ Panel’s reconsideration decision cannot properly be described as irrational or unreasonable. The Headteacher’s exclusion letter sets out a clear conclusion on limb 1. The Governors’ Panel set out their reasons for finding that limb 2 was made out. Taking account of the fact that all stages of the process form part of a single decision making process, and of the fact that a decision on whether a breach of the School’s Behaviour policy was serious is one of evaluative judgment, it cannot properly be said that the decision was irrational or unreasonable in the Wednesbury sense.54. I have come to that conclusion applying a high intensity of review of the decision making process. If a more benevolent approach were to be taken to the exclusion letter and to the minutes of the Governors’ Panel when making their reconsideration decision, the same conclusion would be reached.[50]Challenge 2, to the finding that SAG remaining in the school would “seriously harm” the education welfare of the pupil or others such as staff or pupils in the school, relied heavily on criticisms of the factors identified in paragraph 3(7) and (10) of the reconsideration letter. The GDC, it is accepted, made an error of law in deciding that SAG had committed an offence of burglary in entering the teacher’s room as a trespasser because she did not intend to steal anyone else’s property but to recover her own. The finding at 3(10) that this conduct made others vulnerable and concerned about their personal property is said to be speculative.

The judge said this about Challenge 2:

[51]- “58. The minutes of the meeting of the Governors’ Panel held on 8thApril 2025 record that the panel responded to the IRP’s advice that they should set out the factors relevant to limb (ii) of the exclusion test. Those factors are set out in seventeen bullet points under the first paragraph 3. In my judgment it is clear that, at the reconsideration stage, the Governors’ Panel focussed on putting right what the IRP had identified as going wrong at the reinstatement decision stage. ………61. Whether limb (ii) was satisfied was a matter of evaluative judgment for the school as part of the single decision making process. The IRP advised that the Governors’ Panel making the reconsideration decision should set out the factors that it considered to be present under limb (ii). The Governors’ Panel followed that advice and set out those factors in the seventeen bullet points. The minutes of the Governors’ Panel meeting have to be considered as a whole and read fairly. Taking that approach, and applying a high intensity of review, I come to the following conclusions: 61. Whether limb (ii) was satisfied was a matter of evaluative judgment for the school as part of the single decision making process. The IRP advised that the Governors’ Panel making the reconsideration decision should set out the factors that it considered to be present under limb (ii). The Governors’ Panel followed that advice and set out those factors in the seventeen bullet points. The minutes of the Governors’ Panel meeting have to be considered as a whole and read fairly. Taking that approach, and applying a high intensity of review, I come to the following conclusions: i) The statements in the seventh bullet point are based upon the undisputed fact that the Claimant was found in a teacher’s room without permission. That is the essence of the point being made in that bullet point. The description of those facts as amounting to burglary is erroneous (as, in particular, the Claimant was seeking to retrieve her own property). However the fact that the Claimant was found in a teacher’s room without permission was material. The reference to burglary did not add to the central point that that the Claimant was in a teacher’s room without permission (as identified by the Headteacher in the letter dated 5th February 2025), was not decisive, and did not have a material impact on the reasoning. ii) The statement in the tenth bullet point that if the Claimant were to return to school there would be an impact on other students and their concerns about feeling safe and the vulnerability of their personal property was based upon the evaluative judgment of the governors. Given the undisputed fact that the Claimant had entered a teacher’s room without permission in order to search for property (albeit her own) it cannot be said that reasoning is speculative. The reasoning consists of a judgment based upon undisputed facts. Similarly, in relation to teachers feeling let down and vulnerable; that reasoning was based upon undisputed facts. An exception to the general rule prohibiting mobile phones was made for the Claimant subject to the condition that no SIM card was inserted. The Claimant breached that condition. The teacher’s room was entered without permission. Based upon those undisputed facts the judgment that teachers felt let down and vulnerable cannot be said to irrational. iii) Mr Persey was asked to identify the break in the chain of logic on which he relied. He did not identify such a break or leap in the chain of logic. iv) The seventeen bullet points combined lead to the finding that allowing the Claimant to remain in the School would seriously harm students, staff and the wider school community, and that the second limb was satisfied. That was a matter of judgment for the Governors. v) Reading the minutes as a whole, as part of the overall decision school decision making process, the evaluative judgments reached cannot be said to be irrational or unreasonable.62. I have come to those conclusions applying a high intensity of review of the decision making process. If a more benevolent approach were to be taken to the exclusion letter and to the minutes of the Governors’ Panel when making their reconsideration decision, the same conclusion would be reached.” ……… i) The statements in the seventh bullet point are based upon the undisputed fact that the Claimant was found in a teacher’s room without permission. That is the essence of the point being made in that bullet point. The description of those facts as amounting to burglary is erroneous (as, in particular, the Claimant was seeking to retrieve her own property). However the fact that the Claimant was found in a teacher’s room without permission was material. The reference to burglary did not add to the central point that that the Claimant was in a teacher’s room without permission (as identified by the Headteacher in the letter dated 5th February 2025), was not decisive, and did not have a material impact on the reasoning. ii) The statement in the tenth bullet point that if the Claimant were to return to school there would be an impact on other students and their concerns about feeling safe and the vulnerability of their personal property was based upon the evaluative judgment of the governors. Given the undisputed fact that the Claimant had entered a teacher’s room without permission in order to search for property (albeit her own) it cannot be said that reasoning is speculative. The reasoning consists of a judgment based upon undisputed facts. Similarly, in relation to teachers feeling let down and vulnerable; that reasoning was based upon undisputed facts. An exception to the general rule prohibiting mobile phones was made for the Claimant subject to the condition that no SIM card was inserted. The Claimant breached that condition. The teacher’s room was entered without permission. Based upon those undisputed facts the judgment that teachers felt let down and vulnerable cannot be said to irrational. iii) Mr Persey was asked to identify the break in the chain of logic on which he relied. He did not identify such a break or leap in the chain of logic. iv) The seventeen bullet points combined lead to the finding that allowing the Claimant to remain in the School would seriously harm students, staff and the wider school community, and that the second limb was satisfied. That was a matter of judgment for the Governors. v) Reading the minutes as a whole, as part of the overall decision school decision making process, the evaluative judgments reached cannot be said to be irrational or unreasonable.[52]The judge then said that if it were held that the reference to burglary did involve an error of law then it made no difference and applied section 31(2A) of the Supreme Court Act 1981. There was no evidence about this, or any other aspect of the way in which paragraph 3(7) came to be part of the decision or what the GDC had thought about it, or why they said it, or what they thought it meant. The judge said he didn’t need evidence and reached the conclusions just recited.[53]The judge then dealt with Challenge 3, the suggested failure to deal rationally with alternative sanctions falling short of permanent exclusion which was therefore not treated as a last resort, the judge said:- “77. Notwithstanding the fact that the decision at the reinstatement decision stage had been quashed, the panel at the reconsideration decision stage referred back to their previous consideration of alternative sanctions. That reference to alternative sanctions is not based upon the decision which was quashed. In addition, I accept the submission made by Mr Greatorex that it is implicit from the fact that the panel considered the Claimant’s behaviour log at their 8thApril 2025 meeting, that they were again considering alternative sanctions. As a result, for either or both of those reasons, it is clear that the panel did consider alternative sanctions and the factual premise on which this ground is based is not made out.” 78. I have come to that conclusion applying a high intensity of review of the decision making process. If a more benevolent approach were to be taken to the exclusion letter and to the minutes of the Governors’ Panel when making their reconsideration decision, the same conclusion would be reached.”

How should the Grounds of Appeal be understood?

[54]The Grounds do not take the judge’s decisions on each Challenge and set out what is said to have been wrong with them. They make three complaints of legal error without tying them to any part of the judge’s reasoning. It seems to me that Ground 1, which complains of the finding that SAG had committed burglary, is capable of being relevant to the judge’s decision on the first and second Challenges before him. Ground 2 is a general challenge to the GDC’s application of what I have called “the second limb” in paragraph 11 of the Guidance. The error in relation to burglary is capable of being relevant to that, but other facts may also contribute to that contention. Ground 3 complains that although the judge said he was applying a “heightened standard of review” he did not in fact do so. That is capable of being relevant to the judge’s decisions on all three Challenges.[55]In giving permission to appeal on 5 September, Phillips LJ said “the permanent exclusion from school of a 14 year old, for a single non-violent incident whilst on a school trip abroad, seems harsh and amounts to a compelling reason to hear the appeal” and ordered a substantial degree of expedition “to enable the applicant to re-commence school early this term if the appeal is successful.” The point of reciting this here is to show how the judge giving permission read, in particular, Grounds 2 and 3. The suggested “harshness” of the penalty, in the context of this judicial review claim and appeal, finds its way into an assessment of the proportionality of the sanction. The proportionality of the sanction was at the heart of the decision to exclude and the decision not to reinstate and may arguably have arisen from a failure lawfully to apply the Behaviour Policy (Ground 2) and the failure to review the proportionality of the sanction decision with an appropriate level of scrutiny (Ground 3). Challenge 3 attacked the failure to consider alternatives to permanent exclusion, which is involved in that question. The parties have had sight of that decision since 5 September and have had an opportunity to prepare accordingly, in the light of the reason why permission to appeal was granted. They, in particular Mr. Greatorex on behalf of the School, have been required to work quickly and I am grateful to them, and particularly to him, for doing so. Discussion and analysis Introduction

Discussion and analysis

[56]I regard this as a case on its own facts which does not involve any novel legal principle. The Grounds are widely drawn and require a close focus on the evidence and documents.[57]I propose to address the Grounds in a different order from that in which they were presented.

Ground 2: Lawful application of the Behaviour Policy

[58]This is a challenge to the judge’s decision on Challenge 1. It contends that permanent exclusion could only be justified if the one-off incident for which it was imposed was “extremely serious”. That is because that is what it says in the Behaviour Policy, which the Headteacher expressly mentioned in his letter. The GDC did not say that they had decided to depart from the Policy or give any reason why it would be appropriate to do so. Therefore, they had a duty to follow it. The complaint is that neither the Headteacher nor the GDC ever considered whether the conduct was “extremely serious” and, to the extent that they may have done, any decision to this effect was unreasonable. These complaints are of process irrationality and outcome irrationality respectively, in the sense explained at [42] above.[59]On occasions Mr Greatorex has complained that Mr Persey said something to us which was “new” or that a point “had not been raised before”. An example of this is the submission I have referred to above that the conduct of SAG had been “serious” but not “extremely serious”. In my judgment this complaint carries no weight. The judge recorded, at his paragraph 41, Mr Persey’s submissions on Challenge 1 as including this point:- “It was unreasonable to find that Claimant entering a teacher’s room to retrieve her own mobile phone was an ‘extremely serious’ one-off incident as referred to in the School’s Behaviour Policy.”

The judge says this in his decision on Challenge 1 at his paragraph 46:

[60]- “In particular, determining whether a case is ‘extremely serious’ or a breach is ‘serious’ and whether allowing a pupil to remain in school would ‘seriously harm’ others involves an evaluative judgment by the person in whom the discretion is vested.”[61]He was therefore alive to the difference between “serious” misconduct and “extremely serious” misconduct and its significance in the Behaviour Policy. The issue was squarely before him for decision and whether or not Mr Persey used exactly the same formulation of the point below as he did before us is at best a debating point. The judge’s point was not that there was no difference but that the decision involved an evaluative judgment. He appeared to have thought that so categorising it effectively precludes the court’s intervention. He then said, at paragraph 51:- “In the first instance, it is for the headteacher to determine whether an incident is ‘extremely serious’. In this case the Headteacher, making an evaluative judgment, determined that having a mobile phone with a SIM card and being found in a teacher’s room without permission amounted to serious breach of the School’s behaviour policy.”[62]The judge therefore knew well that the issue for the decision-makers was whether the conduct could properly be described as “extremely” serious”. As he correctly records, but does not develop, they did not in fact ever expressly consider that distinction or make any determination that the conduct was, in their evaluative judgment, “extremely serious” and therefore more than merely “serious”. I do not accept Mr Greatorex’s submission concerning the word “extremely” that “it is always difficult to say what such intensifiers add”. Not unlike the less forceful adverb in the expression “really serious bodily harm” the word “extremely” has a clear meaning which is capable of being given effect. The phrase “extremely serious” in a policy regulating misconduct does mean something different from “serious” and the failure of the Headteacher to address this difference, and that of the GDC on either of the occasions when they dealt with the case is, to my mind, clearly fatal to their decision.[63]I have set out paragraph 16 of the Guidance at [6] above, and the relevant part of the Behaviour Policy at [9]. Paragraph 16 of the Guidance gives a list of types of behaviour which “may warrant a suspension or permanent exclusion”. The Behaviour Policy gives a list of types of behaviour which may warrant permanent exclusion for a one-off “extremely serious” incident. This includes “serious acts of violence” and “violence involving a weapon”. It also includes “drug misuse (which includes vaping and being in possession of vapes/illegal substances)”. There was discussion during the hearing about why vaping appears in this list, as it may introduce a rather less serious kind of behaviour into a list of criminal conduct. We are not considering a challenge to permanent exclusion on the basis of a single act of vaping. In these circumstances it is not necessary, in my view, to consider further why it appears in that list. This is, in any event, a point on which we have no evidence. It seems to me that taking both lists together the examples which are given of misconduct are a useful guide to decision-makers who have to decide whether misbehaviour is sufficiently serious to warrant suspension, or whether its level is more serious such that it warrants exclusion. Set against that guide, it seems to me that a finding that this incident was “extremely serious” would be unreasonable, which is perhaps why neither the Headteacher nor the GDC ever felt able to state in terms that it was. They must be taken to know their own policy. The assessment of the seriousness of an incident includes an assessment of culpability and harm. That is expressly the case in criminal sentencing, but the approach is of general application when deciding on sanctions for misconduct. The harm here was not physical injury or fear of physical injury, neither was it loss of property, nor did it involve the possession or use of controlled drugs. It involved deliberate defiance of authority by a 14-year old child who wished to recover her phone so she could make contact with her mother, as was accepted in terms by the Headteacher at the hearing. At the time she was with others and they appear to have taken a joint decision to do this. The intrusion into the room of the teacher was serious for all the reasons given by the Headteacher and the GDC, but it was necessary to retain a sense of proportion. The suggestion at paragraph 3(10) of the reconsideration letter that the teachers involved in the incident had felt “vulnerable” had not been made at the hearing by the Headteacher, and was not supported by evidence. I have no difficulty accepting, in the absence of evidence, that they felt let down and, probably, annoyed. But a finding that they felt “vulnerable” seems to me to underestimate the resilience of the teaching staff of the School. I refer to the Headteacher’s response during the hearing when asked whether any teacher had expressed a reluctance to teach SAG in future, see [26] above. None had. I accept Mr Persey’s submission (dealt with further below) that in this case there was only one reasonable conclusion to which the decision-maker could properly come, namely that this misconduct, though serious, was not “extremely serious”. This is, after all, the conclusion to which the GDC did come at the first reinstatement hearing in March, before they had an inappropriate conversation with the Headteacher.[64]This conclusion involves upholding Ground 2, but also involves Ground 3. The judge gave deference to the “evaluative judgment” of the decision maker, and that complaint is that this decision resulted from his failure to apply a heightened standard of review. I shall therefore move to Ground 3.

Ground 3: the standard of review

[65]In my judgment the significance of the standard of review is that it affects the way in which the court will defer to the expert judgment of the decision-maker to whom Parliament, by statute, has entrusted these decisions. It affects the “benevolence” with which the court will read the reasons given in decision letters. The more significant the issue the narrower the scope of the deference and benevolence. There remains, in all cases, a requirement that the court does not merely substitute its own judgment for that of the decision-maker, and that the court will respect a decision between options reasonably open to that decision-maker. The court, in cases where the standard of review is heightened, will however scrutinise with particular care whether a suggested option is properly within the range open to the reasonable decision-maker. Sometimes, that range may only include one option, see Lord Sumption in Pham, cited above. Mr Persey submits that this was the case here, in that he says that the only reasonable course properly open to the GDC was to order SAG’s reinstatement.[66]The present case was not a case where Convention rights were engaged, but it was a case where the potential adverse consequences of permanent exclusion to the life chances of a 14 year old child were highly significant. I have expressed agreement with Chamberlain J at [44] above that the circumstances in which a heightened standard of review is appropriate are not limited to those where a Convention right is engaged. Like Fordham J, quoted at [37] above, I would accept that permanent exclusion cases should attract a “relatively exacting standard of review” and that this qualifies the “benevolence” with which a court should read a reasoned decision and the weight which might be afforded to what he called “retro-reasons”.[67]I accept that the decision-makers here are the Headteacher and the Governors of the school, subject to limited oversight by the IRP. I also accept that the court should hesitate to become involved in decision-making of this kind where expertise and knowledge of local conditions in the school will be of significance. Further, I accept that the court should not create a climate where every decision involves a process in which lawyers are involved on all sides, and creating documents which can withstand legal scrutiny. This is a school which needs to be able to function as such. This does not entitle the court to abrogate its function of ensuring lawfulness (which includes fairness) in an important aspect of the life of the community and its youngest members. A balance is required and in my judgment the judge has simply failed to strike that balance correctly. In each case, he has identified that an “evaluative decision” was involved and, in substance, stopped there. I would add that his readings of the reconsideration reasons document are unsustainable and in some respects fail to give effect to the plain words which were used.[68]In my judgment the conclusions to which I have come do not involve imposing unreal and overly legalistic procedures or other obligations on the school. It boils down to the principle that they should have regard to the Guidance, as is their statutory duty, and to their own policies for which they are responsible. These documents should be applied fairly and in accordance with the facts of the case, and a decision should be produced with reasons which explain in plain and succinct language how it has been reached and how the Guidance and policies have been applied. That is surely a standard which it is reasonable to expect when taking decisions of this kind which have the potential to change lives. It is, in any event, a standard which the law requires.[69]The court does not have to consider in this case any evidence from the GDC to expand or explain their written reasons. They have not supplied any. The reasons in the reconsideration letter of 8 April 2025 therefore stand on their own.[70]In three important respects, the judge read that document in ways which I consider involve impermissible re-writing of it. This is so whether the court approaches the document with benevolence or in a less forgiving way.[71]These respects are:- i) His explanation of the assertion that the seriousness of the conduct was not in dispute. The GDC did not deal any further in their reconsideration with that issue, and this can only be because they thought (wrongly) that it was not in dispute. The fact that the facts were not in dispute did not mean that they did not have to evaluate the seriousness of the conduct, and their failure to do so supports the submission that their words should be understood to mean what they say. ii) His explanation of the reference to burglary in the reconsideration decision (challenged in Ground 1). I shall deal with this further below. iii) His explanation of the approach taken on reconsideration to the adequacy of “alternative sanctions”, which was the subject of Challenge 3 before the judge.

The finding that SAG committed burglary

[72]The most striking example of the three points in [71] above is the assertion that SAG committed the offence of burglary, when she did not. This allegation had formed no part of the case against her at the hearing, and no further hearing was held in which she could deal with it. Paragraph 3(7) of the document refers, clearly enough so that it is intelligible, to s9(1)(a) of the Theft Act 1968 under which that offence was allegedly committed. Anyone with any awareness of the provision they chose to mention knows that the offence involves dishonesty. The judge said (without evidence) that all the GDC meant was that she had entered a room as a trespasser. But the sub-paragraph introduces the allegation with the phrase “while the Minutes of the original panel meeting did not specifically mention it”. The Minutes of the original meeting certainly did mention the fact that she had entered a teacher’s room where she had no right to be. That was the whole point of the discussion. So what then was it which had not been “specifically” mentioned? Only the fact that she thereby committed a criminal offence. The judge’s reading, that all this means is that she had entered the room when she should not have done, was not properly open to him on the language which the GDC had used.[73]Further, the list of points in which the burglary allegation is a list of points about the second limb, the consideration of whether allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school. Before embarking on that list, the GDC had said this:- “Governors noted that the facts of the incident had not been disputed; the student had admitted that the idea plan on how to retrieve her phone was hers, that she was found in a member of staff's room and illegally in possession of the room key, and had entered the member of staff's room without permission and with the intention of retrieving her phone which had been confiscated. The Appellant's 'suggestion' that because the PEX panel had not reviewed the "rules slides" for the school trip they could not conclude that a rule had been broken was therefore irrelevant.”[74]The GDC clearly intended to add something, relevant to the issue of whether “allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school”, by the inclusion of paragraph 3(7). They had already said everything which the judge understood that paragraph to mean.[75]In my judgment, this is made even clearer by consideration of paragraph 3(10) of the reconsideration decision. This says that SAG’s return to school would give rise to concerns among other students as to their “safety” and “the vulnerability of their personal property”. If she were, in fact, a criminal and a thief then their safety and their personal property might be put at risk by her presence. Otherwise, there is simply no basis at all for this conclusion. The GDC was simply speculating. In other words, the observation about burglary was the only possible support for some of the important conclusions expressed in paragraph 3(10). This must mean that they gave effect to the words they had actually used, rather than those which the judge decided they meant to use.[76]It will be recalled from [23] above that the note of the at the hearing on 3 March records this exchange:- “[One of the Panel] enquired whether while in the teacher's room, there was any evidence of tampering with, damage or loss to personal confidential information or student medication and [the Headteacher] confirmed that there had been no such damage or loss.”[77]Her entry into a room where such information, medication and other personal property created a theoretical risk to those things, but the panel was further told at the hearing, see paragraph 24 above, that there was no evidence that she was in the room for any other purpose than the recovery of her own phone.[78]Matters therefore appear to have turned for the worse for SAG between the March hearing and the April reconsideration. This is unexplained. The April reconsideration letter does not mention these points in her favour and contains instead a conclusion that she committed a crime which involves dishonesty. The assertions in paragraphs 3(7) and (10) of the reconsideration letter are unjustified for the reasons I have given, but that letter wholly fails to have regard to the points about culpability and harm which go in SAG’s favour. They were not trivial and had, after all, persuaded the GDC that permanent exclusion was disproportionate in their first discussion. They changed their mind after a discussion with the Headteacher which did not touch on proportionality but on the practical sufficiency of alternative sanctions. Having been properly criticised by the IRP for this, the GDC’s response was to ignore those matters entirely and to replace them with a false allegation of burglary.[79]I therefore accept Ground 1 and would allow the appeal against the judge’s decision on this ground against his findings on Challenges 1 and 2 which he had to consider. It seems to me that they were both tainted by his approach to paragraphs 3(7) and 3(10), which are to be read together as I have explained. The unreasonable failure adequately to consider alternative sections.[80]This was Challenge 3 before the judge and the only Ground of Appeal which affects it is Ground 3, which is the contention that he did not approach it with a heightened standard of review. I shall therefore consider the judge’s decision on Challenge 3 under this Ground.[81]I have already indicated that the first two readings of the reconsideration identified at [71] above were unduly benevolent and inconsistent with a heightened standard of review, and in my judgment the same is true of the third.[82]The judge’s approach to this question is at [53] above. I find these paragraphs of his judgment perplexing. The judge says that the GDC at reconsideration referred back to “their previous consideration of alternative sanctions. That reference to alternative sanctions is not based upon the decision which was quashed.” I can find no words in the reconsideration letter which justify this observation.[83]In any event, it was the way in which alternative sanctions were dealt with at the first hearing which led to the decision being quashed. Their letter says this:- “However, the panel wished to emphasise that in holding the “ex parte” meeting with the Headteacher, after the family and representative and clerk had left the meeting, there was no dishonesty intended or deliberate non-compliance with suspensions and exclusions policies. The panel believed that they had acted in the best interests of all parties by consulting with the Headteacher to consider whether an alternative sanction equitable to permanent exclusion, existed.”[84]This is why the IRP quashed the original decision. As Fordham J put it, see [41] above, “In particular, the GDP needed to make sure it was putting right what the IRP had identified having gone wrong the first time.” If in fact they did refer back to their original conclusions on this subject, they were referring back to a flawed process and, instead of putting it right, they simply repeated it.[85]Further, I note the judge’s observation that “it is implicit from the fact that the panel considered the Claimant’s behaviour log at their 8thApril 2025 meeting, that they were again considering alternative sanctions.” I do not see why this is true, but even if it is, in my judgment, it does not address the problem in an acceptable way. Points (11)-(17) in paragraph 3 of the reconsideration letter all relate the to the behaviour log of SAG. At the hearing, it will be recalled, a conclusion had been reached about this in these terms:- “Governors noted from her behaviour log details that to date she had accumulated 30 points which, while above the school average for 95% of students during their time at Winchmore, was not considered to be excessive or indicative of persistent challenging behaviour. [The Headteacher] commented that [she] had settled in well and had contributed well to the school community and there were no issues noted with her academic record.”[86]There is no explanation of the change of approach to this question. For the judge simply to accept that these points showed that the GDC was considering alternative sanctions (which involves a consideration of proportionality), when in fact they were principally considering them as an answer to a submission by Mr Mal that SAG was a “model pupil” does not in my judgment involve a heightened intensity of review. I would therefore allow the appeal against the judge’s finding on Challenge 3 on the basis of Ground 3.

Conclusion

[87]For these reasons I would allow this appeal. My conclusion at [63] above is that it was not reasonably open to the GDC to conclude that the misconduct was “extremely serious”, having regard to the lists which I refer to in that paragraph. That, of course, has implications for the relief which I would grant. That, in view of the judgments of Elisabeth Laing and Arnold LJJ is not a matter which requires further consideration. The same applies to the Respondent’s Notice.

Introduction

[88]As Edis LJ has explained, there are three grounds of appeal. He has set out the background fully, so I need do no more than briefly to explain my views on each ground.[89]In order to that, I will, first, say something about the relationship between the two policies to which he has referred. I will then summarise the grounds of challenge in the Administrative Court and the Judge’s findings on those. I will refer to the decision which is challenged on this appeal as ‘the Decision’, to the body which made it as ‘the Panel’, and to permanent exclusion as ‘PEX’.

The relationship between the two policies

[90]The two relevant policies are both published by the school. These documents are policies, not legislation. It is inherently unlikely that they were intended to set different tests, or that they were intended to diverge from the statutory guidance. That would simply cause confusion. Because of the arguments on the appeal, it is nevertheless necessary to clarify which of the school’s policies was relevant to the Decision and to the Judge’s judgment. There appears to have been some confusion about this, which is evident in the judgment, and, to some extent, in the submissions of the parties at various stages. It seems that the Judge was not given the help which he should have been given to identify the correct policy.[91]The legal framework is relevant to this question. Edis LJ has summarised sections 88 and 89 of the 2006 Act. We have not had submissions about these provisions, but they make it clear that Parliament has made discipline the responsibility of the governors, and the behaviour policy that of the head teacher. The effect of these provisions is a school’s behaviour policy is for the Head Teacher to formulate, but that in formulating that policy, he must ‘act in accordance with’ any general statement of the governing body; and everyone must have regard to the Secretary of State’s guidance (see regulation 9 of the Regulations). The Exclusion and Suspension Policy’ (‘Policy 1’) is the relevant general statement by the governors. Policy 1 apparently tracks the guidance, although it does not use exactly the same words in relation to ‘limb 2’. In formulating the behaviour policy (‘Policy 2’), the head teacher was obliged to ‘act in accordance with’ the general statement by the governing body. He could not, therefore, lawfully depart from Policy 1 when he formulated the Policy 2. In particular, he could not lawfully impose, in Policy 2, a stricter test for PEX than the test in Policy 1, which in turn follows the test in the Secretary of State’s guidance; nor, in any event, could such a test bind the Panel when discharging its statutory functions.[92]It seems that Policy 1 is reviewed annually in March (see p 187 of the Supplementary Bundle). It seems that Policy 2 is reviewed annually in October (see p 200 of the Supplementary Bundle). As both their titles, and their detailed contents show, the policies cover different topics, although there is some overlap between them (as the passage on p 12 of Policy 2, on which Mr Persey relied heavily, and which the Judge quoted) shows. The section headed ‘Legislation and statutory guidance’ in Policy 1, which starts on page 4, makes it clear that Policy 1 ‘adheres to the policy and practice which informs the schools [sic] use of suspensions and exclusions and should be read in conjunction with the statutory guidance from the Department for Education’. There is no equivalent passage in Policy 2. Nor does Policy 2 refer to what was described in argument and in the Judge’s’ judgment as ‘limb 2’ of the test for PEX. Mr Persey had to accept that limb 2 applied in this case, and was driven to submit that its absence from Policy 2 was a ‘lacuna’ in Policy 2. It is not a lacuna in Policy 2, because Policy 2 is not the relevant policy; and limb 2 is in Policy 1.[93]My clear view is that the relevant policy, which the Panel were bound to apply, was Policy 1, which is intended to comply with, and tracks, the two limbs of the test for PEX in the statutory guidance. The minutes of the meeting of 3 March 2025, under the heading ‘Panel deliberations’ show clearly that the Panel applied the words of the test in Policy 1, echoing the statutory guidance, and not words of the test in Policy 2, and that the Panel was satisfied that SAG’s conduct was ‘a single serious breach’. That aspect of the Panel’s reasoning was not criticised by the IRP in any way. This is not surprising, as the submissions made to the IRP by SAG’s representatives accepted that that was the test which applied.[94]If the Judge was right in his conclusions about the application of Policy 2, it follows that he would have reached the same conclusion if he had applied Policy 1. I reject Mr Persey’s submissions that in, Policy 2, the school had consciously departed from, and adopted, a stricter test for PEX than the test for PEX articulated in Policy 1, and/or that because Policy 2 had a later date than Policy 1, the school had replaced Policy 1 with Policy 2. If the applicable policy is Policy 1, I note that Mr Persey expressly accepted in oral argument that the Appellant’s conduct was ‘serious’; according to Mr Greatorex, for the very first time in these proceedings.[95]Policy 2 is nevertheless material to an understanding of the background to the issues. In his oral submissions, Mr Greatorex showed us several passages in Policy 2. The school has many challenges which are described on p 1 of Policy 2. It is clear from the terms of Policy 2 that the school has very high expectations of its pupil’s behaviour, for many obvious reasons. The school believes that ‘effective discipline and good behaviour’ are essential to help pupils learn. All staff believe that pupils can behave well and have ‘high expectations of them at all times’. Pupils are expected to take responsibility for their actions. Good behaviour ‘supports high achievement and good progress’. The aims of Policy 2 include setting high expectations of pupils’ behaviour in the classroom and outside, promoting self-discipline and respect for authority and supporting good behaviour through procedures applied fairly and consistently. Pupils are to ensure that mobile phones are not seen or heard in school. If a member of staff sees or hears a pupil using a mobile phone ‘when not directed to a learning task’ he or she ‘should expect to have’ his or her phone confiscated. Arnold LJ suggested to Mr Persey in oral argument, the Appellant’s attempt to recover possession of her confiscated mobile phone was an act of ‘pure defiance’. His answer was that ‘she could not see why it mattered’ that she had a SIM card.[96]My clear view, therefore, is that Policy 2 is irrelevant to the legal issues on this appeal. But if necessary, I would uphold the Judge’s interpretation of the passage on p 12 of Policy 2, on which Mr Persey relied. Edis LJ understands that passage as imposing a higher bar for PEX than does the relevant text of Policy 1. I respectfully disagree, for three reasons. First, as I have already said, it is inconceivable that the school could have intended to have two policies, covering the same ground, which required decision-makers to apply different tests. Second, the real issue is not a semantic issue, but one of substance. Whichever form of words is used, the real question is whether the Panel were entitled to decide that SAG’s behaviour was serious enough to warrant PEX. It is inconceivable that the head teacher, and, in turn, the Panel, did not understand that very well. Third, the features of the legal scheme to which I have referred mean that (if Policy 2 is the relevant policy) this court should lean against an interpretation of Policy 2 which would indicate that the head teacher intended to impose a test on the Panel which he had no power to impose.

The grounds of challenge in the Administrative Court

[97]The grounds of appeal in this court are not the same as the grounds of challenge in the Administrative Court. There is nothing wrong with that, if and to the extent that the grounds of appeal are criticisms of the Judge’s approach, rather than new arguments about the Decision. Edis LJ has set those out in paragraph 38, above.[98]In the Administrative Court, there were three grounds for judicial review.(1) The Panel was unreasonable and irrational to find that the Appellant’s ‘conduct was a sufficiently serious breach of the School’s behaviour policy to impose’ a PEX. In this context, the grounds quoted the text of the Policy 2 but not the text of the relevant policy, which is Policy 1.(2) The Panel was unreasonable and irrational to find that if the Appellant stayed in the school that would ‘seriously harm’ her education or of others such as the other pupils or the staff. I will refer to that as ‘the limb 2 challenge’. First, there was no ‘cogent evidence’ to that effect. Second, the Panel relied in part on a wrong view that the Appellant’s conduct amounted to an offence of burglary, contrary to Theft Act 1968.(3) The Panel unreasonably and irrationally failed ‘to adequately consider’ alternatives to PEX. The school could have imposed ‘alternative more proportionate sanctions’ such as suspension, banning the Appellant from school trips, or learning support or a behaviour contract. The Judge’s approach The Judge’s general approach[99]It is not suggested that the Judge misdirected himself about the test for irrationality. In paragraph 37, he cited paragraph 45 of the decision of Fordham J in R (RWU) v Governing Body of A Academy [2024] EWHC 2828 (Admin), and in paragraph 38, paragraphs 56 and 57 of the judgment of Chamberlain J in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin). RWU was also a PEX case.[100]I would only add that the reasoning in Pham (see paragraphs 45, 56 and 65, above) is not relevant. In that case, the Secretary of State made an order depriving the appellant of his British citizenship. He appealed to the Special Immigration Appeals Commission (‘SIAC’). The preliminary issue in SIAC was whether or not the effect of that order was to make the appellant stateless. SIAC held that it was. The Court of Appeal and the Supreme Court disagreed. So the Secretary of State’s appeal against SIAC's preliminary ruling succeeded in both courts.[101]The case was remitted for SIAC to consider the merits of the appellant's appeal. The members of the Supreme Court had various things to say about how SIAC should do that. The first point is that that reasoning is all obiter. The second point is that at the relevant time the United Kingdom was a member state of the European Union. The court's statements about proportionality are tied to that situation, and to the important relationship between national citizenship and the concept of citizenship of the EU.

Ground 1 in the Administrative Court

[102]The Judge considered ground 1 in paragraphs 43-55. The Panel was not a ‘tribunal of appeal from the Head Teacher, but part of a single decision-making process within the school in which both play a role’ (paragraph 43). The Panel’s reconsideration was part of that. The Panel was not simply reviewing the decision of the Head Teacher but taking the decision for itself (paragraph 44). The Panel’s job in reconsidering its decision was to ‘put…right what the IRP had identified as going wrong at the reinstatement decision stage’ (paragraph 45).[103]The Head Teacher had made evaluative judgments about both limbs of the policy test in the statutory guidance and in applying the school’s Behaviour Policy. In deciding the seriousness of the breach, and whether allowing a pupil to stay in the school would ‘seriously harm’ others ‘involves an evaluative judgment by the person in whom the discretion is vested. Given the factors to be taken into account by those making those evaluative judgments the court must afford those decisions a degree of respect (R (KM) v Cambridgeshire County Council [2012] UKSC 23; [2012] PTSR 1189 at paragraph 36)’ (paragraph 46). I note that KM is a community care case, not a PEX case.[104]The Panel had paid ‘specific regard’ to the ‘points to consider’ made by the IRP. It also considered the Appellant’s written submissions and explained why it disagreed with them. It considered limb 2 (paragraph 47). It was clear that the Panel’s view was that both limbs were met (paragraph 48). ‘The minutes have to be read fairly and as a whole. They have to be read in context and bearing in mind that they are written to an informed audience, and bearing in mind that they are part of a single decision-making process (paragraph 55). The Judge referred to paragraph 75 of RWU.[105]The first part of that process was the decision of the Head Teacher. The Head Teacher referred to ‘a serious breach of the School’s Behaviour Policy, and identified the facts on which that judgment was founded, namely that [the Appellant] was in possession of a mobile phone with a SIM card in it, and was found in a teacher’s room without permission’. The Judge referred to the school’s Behaviour Policy. The list in that policy was a list of examples and not exhaustive. In the first instance, it is for the Head Teacher to decide whether an incident is ‘extremely serious’. In this case, the Head Teacher, ‘making an evaluative judgment’ determined that having a mobile phone with a SIM card and being found in a teacher’s room without permission amounted to a serious breach of the school’s behaviour policy’ (paragraph 51).[106]The Judge considered that ‘reading the minutes fairly and [as a] whole, and applying an intense degree of scrutiny, the reference to the criteria for the first limb not being disputed must be understood as meaning that the facts which formed the basis for the finding on the first limb were not in dispute’ (paragraph 52). His overall conclusion was that if the process was considered as a whole, the Decision could not be ‘properly described as irrational or unreasonable’. He explained why in paragraph 53. He had reached that decision ‘applying a high intensity of review’. The result would have been the same if he had taken a more benevolent approach (paragraph 54).

Ground 2 in the Administrative Court

[107]The Judge said, in relation to ground 2, that the Panel had followed the recommendation of the IRP by explaining, in 17 bullet points, why it considered that limb 2 was met (paragraph 58). He recorded the seventh and tenth bullet points (paragraphs 59 and 60). He said that ‘Whether limb 2 was satisfied was a matter of evaluative judgment for the school as part of the single decision making process. He said that the minutes (which, I note, are both the Decision and the Panel’s reasons) ‘have to be considered as a whole and ready fairly. Taking that approach and applying a high intensity of review’ he reached five conclusions (paragraph 61).[108]He accepted that the Panel was wrong to label the Appellant’s conduct as ‘burglary’. But it was not disputed that the Appellant had been found in a teacher’s room without permission. ‘That is the essence of the point being made in that bullet point’. That fact was ‘material’. The reference to ‘burglary’ did not add to the head teacher’s exclusion letter, ‘was not decisive and did not have a material impact on the reasoning’ (paragraph 61.ii)).[109]The reasoning in the tenth bullet point was not speculative. It was based on an evaluative judgment of the governors. It was not disputed that the Appellant had gone into a teacher’s room without permission to search for property, even if it belonged to her. The reasoning was a judgment based on ‘undisputed facts’. He pointed out that the school had made an exception from the general rule prohibiting mobile phones, subject to the condition that there was no SIM card in the phone. She had breached that condition, and had gone into a teacher’s room without permission.[110]The judgment that the teachers felt let down and vulnerable could not be said to be irrational (paragraph 61.ii)) Mr Persey had not identified any ‘break in the chain of logic’. The 17 bullet points ‘combined lead to a finding that allowing [the Appellant] to remain in the school would seriously harm the students, staff and the wider school community, and that the second limb was satisfied. That was a matter of judgment for the Governors’ (paragraph 61.iv)). If the minutes were read as a whole, ‘as part of the overall school decision making process, the evaluative judgment reached cannot be said to be irrational or unreasonable’. The Judge said that he had reached those conclusions applying a ‘high intensity of review’ of the process. He would have reached the same conclusion if he had taken a ‘more benevolent approach’.[111]He added that in case the reference to burglary in the seventh bullet point was an error of law, he had applied section 31(2A) of the Senior Courts Act 1981 (‘the 1981 Act’). He cited paragraph 73 of the judgment of Lewis LJ (with which Singh LJ agreed) in R (Greenfields (IoW) Limited v Isle of Wight Council [2025] EWCA Civ 488.[112]Lewis LJ said that the court is ‘considering the decision …and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied’.[113]The Judge noted that the Panel had not provided a witness statement. His judgment was that no such evidence was required. ‘The question is whether it is highly likely that the decision would not have been substantially different if there had been no reference to burglary in the seventh bullet point…of the minutes…’ (paragraph 67). The point of substance was that the Appellant had gone into a teacher’s room without permission. Whether or not that ‘undisputed act’ amounted to burglary or not ‘had no material impact on the decision making process or the reasoning. As a result it appears to me to be highly likely that the outcome for [the Appellant] would have not have been substantially different if the conduct complained of had not occurred’. By the latter phrase, I think that the Judge meant ‘if the conduct had not amounted to burglary’.

Ground 3 in the Administrative Court

[114]The Judge considered ground 3 in paragraphs 72-79. He repeated that there were four stages in the decision-making process. The Panel considered in its first decision whether the sanction of PEX was proportionate and whether alternatives would be appropriate. In the Decision the Panel said that they believed that they had acted in best interests of all the parties in consulting the Head Teacher about alternatives to PEX. The first decision had been quashed, but in the Decision the Panel referred to its reasoning about alternatives in the first decision. The Judge considered that (on either of two bases) that the Panel had considered alternative sanctions in the Decision. That part of the Judge’s reasoning was not challenged on this appeal. The factual premise of ground 3 was not made out (paragraphs 72-77). He had reached that conclusion applying a high intensity of review but would have reached the same.

The approach of this court on an appeal

[115]The Appellant has not identified any material express misdirection of law by the Judge. I say that advisedly. I will explain why below. I consider that, on analysis, the grounds of appeal criticise the evaluative assessments of the Judge. This court will only interfere with such assessments if they are wrong.

Ground 1

[116]Ground 1 appears to rely on an error of law, but, on analysis, it is a criticism of an evaluation by the Judge. The key issue in relation to ground 1 is whether the Judge’s approach to his fall-back position, which was to apply section 31(2A) of the 1981 Act, is wrong, or not.[117]The Judge faithfully applied the legal approach which was explained by Lewis LJ in the Greenfields case (see paragraph 111 above). It is clear from Lewis LJ’s formulation that whether section 31(2A) of the 1981 Act applied was, in the first instance, for the Judge to assess. I can see no error of law in his approach. He accepted that the reference to burglary was ‘erroneous’. His expert assessment was that if that error of law had not been made, it was highly likely that the outcome for the Appellant would not have been substantially different. Mr Persey submitted that ‘We cannot tell what decision the Panel would have made without this’. But that is not the question for us, as I have just explained.[118]The reason for that, in short, was that the Panel’s real concern was not what legal label should be given to the Appellant’s conduct, but what it amounted to in substance, and whether that conduct met the two limbs of the test for PEX in Policy 1. The initial approach of the Panel is relevant here (see paragraph 93, above).[119]I would summarise it in this way. The position of the authorities throughout the decision-making process was that the Appellant’s conduct was a serious breach of trust. There were two aspects of that conduct. Mobile phones were banned on this school trip (see the graphic prohibition on p 40 of the Supplementary Bundle). Because of her unique circumstances, the school made an exception from that ban for SAG alone. She was allowed to have a mobile phone, but only if it did not have a SIM in it. In breach of that condition, she was found to have a SIM card in her mobile phone. The school then properly confiscated it. She then got hold of a key to the hotel room of a teacher, used the key to enter the room, and searched the room for her phone. Further concerns were evident from the Decision are that she did not take responsibility for actions, lied initially, and did not apologise until after she had been permanently excluded. The Panel were entitled to be satisfied, for the reasons they gave in the Decision, that limb I and limb 2 of the test for PEX were both met. I do not consider that SAG’s witness statement, which was made for the purposes of the application for judicial review, and which was not before the Panel, helps this court in any way with the legal issues on this appeal.

Ground 2

[120]I have already explained why I do not consider that the relevant policy is Policy 2. But even if it is, I consider that the Judge did not err, as a matter of construction, in concluding that it was open to the Panel to conclude that the Appellant’s conduct met the test in Policy 2. The Judge was right to say that whether the relevant test was met was, in the first instance, a question of evaluation for the Head Teacher and then for the Panel. The question of substance, as I have explained (if, contrary to my clear view, Policy 2 was relevant), was whether SAG’s conduct was serious enough to warrant PEX. As I have said, it is inconceivable that the Panel failed to understand that. I therefore respectfully disagree with the conclusion of Edis LJ in paragraph 63, above.[121]The passages in Policy 2 to which I have referred are relevant to this question, and they point to a further factor. Unlike the Judge, and unlike this court, the Head Teacher and the Panel are immersed in the day-to-day running of the school and in the best possible position to evaluate the seriousness of the Appellant’s conduct in that context, and the further question of whether that conduct was serious enough to warrant PEX. The views of this court about whether or not the penalty of PEX was or seems harsh, or whether or not this court would have imposed such a penalty are irrelevant. That point is reinforced, as Mr Greatorex submitted, by the structure of the statutory scheme, which shows that even in the stages before court proceedings, the grounds for intervention by the IRP in the affairs of the school are limited to judicial review grounds, and do not permit the IRP to interfere with the merits of the school’s decision. A court which substituted its view about the appropriate penalty for that of the governors would subvert that statutory scheme.

Ground 3

[122]I would make four main points about ground 3.[123]First, it articulates a surprising criticism from a textual point of view. The Judge was referred to the judgment in RWU. He said, more than once, that he had applied a ‘high intensity of review’ to the Decision. So if he was obliged to take such an approach, Mr Persey was not able to point to any express misdirection of law. On the contrary, the judgment is, on this point, peppered with correct directions in law. If a ‘high intensity of review’ is the right approach, this court must assume that that is indeed the approach which the Judge took, unless it can be shown that he did not.[124]The first point leads into the second. Mr Greatorex complained, with some justification, that Mr Persey had not identified any failures by the Judge to take the approach which he said he had taken, and that this ground amounted to no more than an assertion that the Judge must have failed to review the Decision with a ‘high intensity’ for the sole reason that the Judge had dismissed the application for judicial review. The closest Mr Persey came to explaining how he submitted that the Judge had gone wrong was his assertion that the reasoning of the Panel reflected ‘extremely poor decision-making’ and was ‘not precise’. That is not accurate. But even if it were, it still not be sufficient, in my judgment, to impugn the approach of this lay panel.[125]The third point is that the judgment in RWU is careful not to impose too stringent a standard of ‘intense review’ in this context. Fordham J summarised his conclusion about this in paragraph 58 of his judgment in that case: when its first decision has been quashed (as in this case) the court should approach such a panel’s reconsideration of a decision of a Head Teacher ‘with close scrutiny, with reduced benevolence, and with a heightened reluctance to allow any resort to Retro-Reasons, but always taking a straightforward, not a legalistic, nit-picking or technical, approach to reasons and the way they have been expressed’. I reject Mr Persey’s unrealistic submissions that if the Decision required intense review, it had to be shown that the Decision was ‘in no way flawed’: he came close to accepting in Reply that such an approach would require the Panel to instruct lawyers. I also reject his submission that the reasons must mention expressly every factor which told in favour of the Appellant; and I would also observe that I can think of no such factor which was not referred to by the Panel. Lastly, I reject his ambitious submission that in this case, there was only one decision which was lawfully open to the Panel. That submission was inconsistent with a later submission that the decision was ‘finely balanced’. Indeed, and although my view is irrelevant, I consider that there were cogent factors which supported the approach of the school.[126]Fourth, I do not understand, in this context, what a ‘high intensity of review’ adds to the approach which any court takes when considering a decision which has serious implications for a claimant. As Fordham J acknowledged, it is especially important in this context that the court does not demand a standard of reasons from a panel which is unrealistically demanding. I would add that the panel is not made up of lawyers. The governors are lay people who give up their free time out of sense of public duty. As I understand it, they are not paid. They have to make difficult decisions quickly. If the court demands that their reasons are free of any legal error, or other blemish of reasoning or expression, they will have to have a legal adviser present throughout the hearing, as their reasons consist of the minutes of the meeting. That will increase the cost and formality of their proceedings, to no useful purpose. This court is not bound by Fordham J’s decision. I would prefer to express no view on this point, as, even if his approach is applied, the Decision passes the standard which he described and applied (see paragraphs 67-81 of his judgment, in which he rejected all of leading counsel’s criticisms of the reasoning of the panel in that case).[127]I have carefully considered Edis LJ’s other criticisms of the reasoning of the Panel. Even if a ‘high intensity of review’ applies, I do not consider that they show that the decision of the Panel was irrational or otherwise unlawful, or that any material aspect of the Judge’s reasoning was wrong.[128]For those reasons, I would dismiss this appeal.[129]This is a troubling case for three reasons. First, there is an individual at the centre of it whose education and well-being are at stake. She has been subjected to what some may consider a harsh penalty for her admitted misconduct. Secondly, in its second decision the Governor’s Disciplinary Committee (“the GDC”) made what the School accepts was a clear error in stating that SAG had contravened “section 91A of the Theft Act 1968”. This invites the question why the GDC considered it appropriate to refer to the criminal law at all at that stage of the proceedings. That together with the GDC’s treatment of SAG’s disciplinary record suggests a degree of confirmation bias on the part of the GDC. Confirmation bias is hard to avoid, however, when a decision-maker or decision-making body (including a court or tribunal) is required to retake a decision which has been quashed or set aside for procedural reasons. Thirdly, this Court has the misfortune to find itself divided as to the correct disposition of the appeal.[130]Edis LJ and Elisabeth Laing LJ have eloquently set out the arguments respectively for allowing and dismissing the appeal. Having considered their judgments with care, I agree with Elisabeth Laing LJ and respectfully disagree with Edis LJ. My reasons can be summarised as follows.[131]First, the legislative scheme confers responsibility for deciding whether a pupil should be permanently excluded on the headteacher and governing body of a maintained school. Once a decision permanently to exclude a pupil has been reviewed by an independent review panel and maintained, the decision can only be challenged on public law grounds. It is trite law that such a challenge does not entitle the courts to substitute their own views of the merits of a decision for those of the responsible decision maker. Even if a heightened intensity of review is appropriate in this context, as the judge held, it remains the case that courts lack the experience, background and detailed knowledge of the school to second-guess the judgement of headteachers and governing bodies: cf. R (SB) v Governors of Denbigh High School [2002] UKHL 15, [2007] 1 AC 100 at [34] (Lord Bingham of Cornhill).[132]Secondly, given the nature of the judge’s decision, this Court can only interfere with it if he erred in law or principle. SAG does not contend that the judge misdirected himself in law. Although appeal ground 1 alleges that the judge erred in law in finding (when considering SAG’s second ground for judicial review) that the GDC’s conclusion that SAG had committed a criminal offence was immaterial to its decision that the second limb of the test for permanent exclusion was satisfied, I cannot see any error of law in the judge’s application of section 31(2A) of the Senior Courts Act 1981. In reality this is a challenge to the judge’s evaluation. In my judgment he was entitled to reach the conclusion that he did.[133]Similarly, although appeal ground 2 alleges that the judge erred in law in finding that the GDC lawfully applied the School’s Behaviour Policy, I again cannot see any error of law in the judge’s approach. It is important in my view to note that SAG did not, in her grounds for judicial review, contend that the GDC had unlawfully applied the School’s Exclusion and Suspension Policy (“Policy 1” in Elisabeth Laing LJ’s judgment) rather than its Behaviour Policy (“Policy 2”). Any such challenge would have faced the difficulties identified by Elisabeth Laing LJ in her judgment. Rather, SAG’s first ground was that the GDC’s decision that SAG’s conduct amounted to a sufficiently serious breach of the Behaviour Policy to justify permanent exclusion was unreasonable. Given that it is plain that the GDC applied the statutory guidance and the Exclusion and Suspension Policy, it is inherent in that formulation of the challenge that SAG accepted that there was no relevant difference between the two policies. It appears that it was only on this appeal that counsel for SAG argued that the Behaviour Policy imposed a more elevated threshold for permanent exclusion than the statutory guidance and the Exclusion and Suspension Policy and that the GDC was required to apply that more elevated threshold. Thus, as counsel for the School submitted, this ground of appeal is either a new argument or at best a challenge to the judge’s evaluation. Again, in my judgment he was entitled to reach the conclusion that he did.[134]As for appeal ground 3, this alleges that the judge did not apply a heightened intensity of review, but the judge did just that. The argument that the judge did not do so is in reality an argument that he could not have done because, if he had, the only conclusion open to him was that SAG’s challenge to the GDC’s decision was made out. In my view that is not the case.

Cited in 1 later judgment