PZP, R (on the application of) v HS Academy Trust & Anor [2026] EWHC 489 (Admin)

[2026] EWHC 489 (Admin)Case No AC-2025-MAN-000158
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate 5 March 2026
M60 9DJ
Before
ANDREW KINNIER K.C.(Sitting as a Deputy Judge of the High Court)THE KING(On the application of PZP, by his Litigation Friend BQJ)
Between
HS ACADEMY TRUSTDefendantTHE INDEPENDENT REVIEW PANEL OF HS ACADEMYDefendantTHE KING(On the application of STW by his Mother and Litigation Friend JXE)
Between
THE INDEPENDENT REVIEW PANEL OF HS ACADEMYDefendantHS ACADEMY TRUSTDefendantOllie Persey and Rosa Thomas (instructed by Wilsons Solicitors Limited) for ClaimantsBen Amunwa (instructed by Hill Dickinson LLP) for HS Multi-Academy TrustBen Bentley (of Browne Jacobson LLP) for Independent Review PanelHearing Hearing date: 9 December 2025
Approved JudgmentThis judgment was handed down remotely on 5 March 2026 at 10.30am by circulation to the parties or their representatives by email and released to the National ArchivesANDREW KINNIER K.C. sitting as a Deputy Judge of the High Court:Introduction
[1]This case concerns the permanent exclusion of two pupils, PZP and STW, from HS Academy (“the school”) following their involvement in an assault against a fellow pupil on 10 October 2024 (“the incident”).[2]Permission for judicial review was refused on the papers by Andrew Thomas KC, sitting as a Deputy Judge of the High Court, on 10 June 2025 in PZP’s claim and on 24 June 2025 in STW’s claim. On 25 July 2025, the two claims were consolidated and on 31 July 2025, permission was granted by Mr C.M.G. Ockelton, sitting as a Deputy Judge of the High Court, on the following grounds: PZP’s claim(a) Ground 1: there was an unlawful failure to ensure the participation of an expert in special educational needs (“SEN”) at the hearing before the Independent Review Panel (“the IRP”) on 13 January 2025 despite the family having asked that one attend.(b) Ground 3: the IRP’s decision of 13 January 2025 not to quash the decision of the Governors’ Disciplinary Panel (“the GDP”) was irrational considering the IRP’s findings of fact that amount to findings that there were public law errors in the GDP’s decision. STW’s claim(c) Ground 4: the IRP misapplied the Equality Act 2010 (“the 2010 Act”) in finding that STW had no protected characteristics.[3]This judgment will refer to ground 3 of PZP’s claim and ground 4 of STW’s claim as grounds 2 and 3 respectively.[4]Mr Ockelton made standard directions in accordance with CPR PD 54A which required service of evidence by the school and the IRP by 4 September 2025. By an application dated 25 November 2025, made some 10 weeks or so after the deadline for service of evidence and after the hearing bundles had been prepared, the IRP sought permission to rely upon two statements from members of the panel that had heard these two claims as well as the transcript of the renewed permission hearing. Although the latter was uncontroversial and the transcript was admitted into evidence, the former was resisted by Mr Ollie Persey and Ms Rosa Thomas, counsel for the claimants, on the basis that the statements had been served late; no good reason had been given for the failure to comply with the directions made on 31 July 2025 and the lateness effectively denied the claimants a fair opportunity to respond.[5]I refused the application for the reasons given ex tempore at the hearing. In short, Mr Ben Bentley, counsel for the IRP, fairly accepted that the substance of the two statements added nothing material to the IRP’s decisions in the two claims and I was not persuaded that a satisfactory reason had been given for the failure to comply with the deadline for service of evidence. PART 1 – the background The school

PART 1 – the background

[6]The school is a secondary academy for boys aged between 11 and 18 and it is operated by the HS Academy Trust. There are about 995 pupils on its roll. The school’s religious character is Anglican and it is sponsored by a diocese and an archdiocese. PZP[7]PZP was born in July 2009. He was 15 years old at the time of the incident and in Year 11. He had been diagnosed with dyslexia and the school accepts that he is disabled for the purposes of s. 6 of, and Sch. 1 to, the 2010 Act. PZP was enrolled at the school under the Fair Access Protocol and joined Year 8 in May 2022. In June 2022, PZP was referred for assessment by the Special Educational Needs Inclusion Support Service. He received help under a SEND support plan which included (among other measures) a pupil passport, specialist dyslexia tutor weekly sessions and a smaller student-to-staff ratio in mathematics lessons.[8]Between May 2022 and May 2024 the school imposed five fixed-term exclusions on PZP. The disciplinary measures were supplemented by various interventions to support PZP. These had been effective to the extent that before the incident the school’s view was that he had made a “fairly settled start to year 11.” STW[9]STW was born in 2009: he too was 15 years old at the time of the assault but in Year 10. In June 2023, STW had been suspended from school for two days for racist abuse. On 4-5 October 2023 and on 25 October 2023, he had been suspended for physical assault and violent behaviour towards another pupil.

The incident

[10]During the incident PZP, STW and two other pupils violently assaulted a fellow pupil (“X”). The attack was unprovoked and premeditated. X was hit from behind and the assailants were heard using racist language at least four times over the course of a minute. X fled across a busy road outside the school to escape and ran between passing cars. As a result of the assault, X sustained significant physical injuries and his mental health has subsequently deteriorated.[11]The police investigated whether an offence under s. 47 of the Offences against the Person Act 1861 had been committed but no charges were brought against PZP, STW or anyone else involved in the incident. PART 1A – PZP’s case The investigation and PZP’s suspension

PART 1A – PZP’s case

[12]On 11 October 2024, the day after the incident, the school carried out its investigation. PZP initially denied any involvement in the assault, a position from which he later resiled. On 11 October 2024, the headteacher suspended PZP for assaulting a fellow pupil. The suspension was for five days between 14 and 18 October 2024. The exclusion meeting[13]On 21 October 2024, an exclusion meeting was held. It was attended by PZP; his mother and grandfather; the headteacher; the executive headteacher and a “Safer Schools” police officer. PZP admitted hitting X from behind. The headteacherexplained that the evidence was that PZP had used racist language during the incident. PZP, his mother and grandfather denied that the incident was racially motivated. Having considered the evidence and the family’s submissions, the headteacher decided permanently to exclude PZP for committing a racially motivated assault. The letter which later confirmed the decision did not refer to PZP’s disciplinary record. The decision was solely based on the incident, a single serious breach of the behaviour policy and the conclusion that allowing PZP to remain in school would seriously harm the education or welfare of the staff or pupils in the school.

The GDP

[14]On 18 November 2024, the GDP held a hearing to consider the headteacher’s decision. The GDP had three members, one of whom was the chair of governors. The hearing was attended by PZP; his mother and grandfather; the headteacher; the school’s governance professional and the clerk to the governors. The minutes of the hearing are not disputed and three points are relevant: first, the headteacher confirmed that his decision was primarily based on the evidence that the assault was racially motivated; secondly, although PZP did not challenge his suspension he objected to the conclusion that the assault was racially motivated; thirdly, the headteacher had taken account of the community tensions which followed the assault and its impact across the school.[15]On 22 November 2024, the GDP upheld the headteacher’s decision. It concluded that, on balance, a racial slur was used during the assault; it was reasonable for the headteacher to conclude that the assault was at least partly racially motivated; all four assailants shared responsibility for the assault and there would be serious harm to others were PZP to be reinstated. The GDP found no procedural unfairness.

The IRP

[16]On 29 November 2024, PZP’s grandfather asked for a review panel to reconsider the GDP’s decision. He also asked that an SEN expert attend the review. The family later asked for the hearing to be adjourned and so it was re-listed for 13 January 2025.[17]Three members sat on the IRP: a lay person who acted as the chair; a governor and a headteacher, each of whom was independent of the parties. PZP’s mother and grandfather attended as well as the headteacher, the chair of the GDP and an independent clerk. The IRP was given a hearing bundle together with a 40-page submission from PZP’s family. It heard submissions from PZP’s grandfather, the GDP and the headteacher. Although the family had asked an SEN expert to attend, none was present. The school said that this was due to an administrative error.[18]In its decision of 13 January 2025, the IRP found that the decisions of the headteacher and the GDP were lawful under the Education Act 2002 (“the 2002 Act”). The substance of the IRP’s decision is considered below but the panel was not satisfied that the reason for permanent exclusion had been sufficiently or clearly articulated and, in particular, whether the actual reason was that the incident had been racially motivated. Accordingly, the IRP decided that the GDP should reconsider the case and “seek to satisfy themselves as to whether the assault was racially motivated or not and to make a decision accordingly.” The IRP was also not persuaded that the school had followed its own policies or that the GDP had addressed any equalities issues. The latter was said to be a concern “as the permanent exclusion had been based on an alleged racist remark.”

The GDP’s reconsideration

[19]On 22 January 2025, following the IRP’s recommendation, the GDP reconvened. By a letter dated 31 January 2025, the GDP communicated its decision not to reinstate PZP. It found that there was a racial element to the assault notwithstanding other instigating factors. It also found that the school had followed its relevant policies and procedures and that equalities considerations had been considered. PART 1B – STW’s case The investigation and STW’s suspension

PART 1B – STW’s case

[20]Although STW initially denied any involvement in the incident he later admitted that he had hit X four or five times from behind. He refused to identify any of the other assailants. Because of his refusal to assist and his obstruction of the school’s investigation, STW was suspended for a half-day on 11 October 2024. At the end of that afternoon, the headteacher suspended STW for assaulting a pupil for a five-day period between 14 and 18 October 2024.[21]On 14 October 2024, STW’s mother sent an e-mail to the school about an alleged attack on her son on 24 May 2024 (“the May 2024 incident”). It was said that STW had been attacked by a gang of which X was a member. This was the first time that the school had been told about the May 2024 incident which was also not reported to the police. STW’s mother said that her son was bullied by X who allegedly shared video footage of the May 2024 incident on social media.

The exclusion meeting

[22]The exclusion meeting was held on 21 October 2024. It was attended by STW and his mother; the headteacher; the executive headteacher; the “Safer Schools” police officer and a note-taker. Although STW was given an opportunity to give his account of the assault, he said that he had nothing to add and that he was concerned that social services were now involved. STW and his mother denied any racial motive and STW denied hearing any racist language. The headteacher decided permanently to exclude STW, a decision which was confirmed in a letter sent the same day. As with PZP’s case, the decision was made on the basis of the assault alone: it was considered a single serious breach of the behaviour policy which had caused serious harm.

The GDP hearing

[23]On 20 November 2024, there was a hearing before the GDP. The GDP had three members, all of whom were governors. It was attended by STW’s mother; the headteacher; the school’s governance professional; a local authority officer and the clerk to the governors. The GDP heard oral submissions from the school and STW’s mother who supplemented her representations with detailed written submissions.[24]The GDP made four relevant findings: first, the headteacher’s decision was lawful for the purposes of the 2002 Act; secondly, a racial slur had been used; thirdly, it was reasonable for the headteacher to conclude that the assault was at least partly racially motivated; and fourthly, if STW remained at the school, it would result in serious harm to the welfare and education of others.

The IRP hearing

[25]On 15 December 2024, STW’s mother asked that the GDP’s decision be considered by an IRP. Following two postponements, the IRP hearing was held on 31 January 2025. As in PZP’s case, the IRP had three members: a lay member who was the chair; a governor and a headteacher all of whom were independent of the parties. The hearing was attended by STW’s mother; a local authority officer; the headteacher, the executive headteacher and an independent clerk.[26]By a letter dated 5 February 2025, the IRP upheld the GDP’s decision and in so doing it reached four relevant conclusions: first, the decisions of the headteacher and the GDP were lawful for the purposes of the 2002 Act; secondly, the GDP acted rationally in concluding that the headteacher acted reasonably in finding a racial motive; STW had no SEN-related issues or additional needs; thirdly, although the GDP’s minutes lacked structure, STW had suffered no procedural unfairness; fourthly, the school had followed its policies and procedures; and finally, STW had no protected characteristics for the purposes of the 2010 Act.

PART 2 – the legal background

[27]Permanent exclusions are governed by s. 51A of the 2002 Act, the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (“the Regulations”) and policy guidance published by the Department for Education entitled “Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement” (dated August 2024) (“the Guidance”).[28]A headteacher of an academy school may exclude a pupil for a fixed period or permanently: s. 51A(1) of the 2002 Act and regs. 21(1) and (2) of the Regulations.[29]The statutory scheme governing permanent exclusion has four stages: R (RWU) v. A Governing Body of “A” Academy [2024] EWHC 2828 (Admin), paras. 4-18.[30]Stage 1 is the headteacher’s decision permanently to exclude a pupil. It is governed by s. 51A(1) of the 2002 Act and reg. 22 of the Regulations. Although the school is an academy and the legislation describes the headteacher as “the principal”, the former title is used in the evidence and so, for the sake of consistency, this judgment adopts the same term.[31]Part 3 of the Guidance, at para. 16, states that headteachers are trusted to use their professional judgment based on the individual circumstances of the case when considering whether to exclude a pupil. It gives examples of the type of circumstances in which exclusion may be justified including physical assault against a pupil and racist abuse. Para. 4 of Part 3 of the Guidance (p. 11) requires headteachers to take the pupil’s views into account before deciding to exclude. Para. 23 of Part 3 (p. 16) requires permanent exclusion decisions to be made alongside the school’s duty to safeguard and support children and its duty to provide an education.[32]A decision permanently to exclude a pupil should only be taken in response to a serious breach or persistent breaches of the school’s behaviour policy and where allowing a pupil to remain in school would seriously harm the education or welfare of others in the school: para. 11. This is described in the Guidance and in submissions as the “two-fold test”.[33]Stage 2 is the governing body’s decision whether to reinstate an excluded pupil. It is governed by s. 51A(3)(b) of the 2002 Act and reg. 24 of the Regulations. If a headteacher decides permanently to exclude a pupil, the proprietor of an academy school (in other words, the governing body) must consider whether the pupil should be reinstated and, if so, whether they should be reinstated immediately or at a later date: reg. 24(1) and (2) of the Regulations; para. 118 of the Guidance. The governing body is required to consider certain matters and to carry out the steps prescribed in reg. 24(3) of the Regulations.[34]The headteacher’s decision permanently to exclude a pupil and the governing body’s consideration of reinstatement are part of a single decision-making process: R v. Governing Body of Dunraven School, ex parte B [2000] BGLR 494, para. 7. The GDP’s decision is central to this process because ultimately it decides whether exclusion is required and notably its consideration is not confined to a review of the headteacher’s decision: R (TZA) v. Secondary School [2025] PTSR 1503, para. 72.[35]The Guidance says that the GDP must consider the interests and circumstances of the permanently excluded pupil and that of other pupils, staff and the wider school community: para.114. It must also consider any representations made by or on behalf of the relevant parties including the pupil’s parents: para.115. The Guidance also provides that when establishing the facts in relation to a permanent exclusion, the GDP must apply the civil standard: para. 117.[36]The Guidance also identifies the question which the GDP is to ask when considering reinstatement, namely whether the decision permanently to exclude the pupil was lawful, reasonable and procedurally fair: para. 124; see also RWU, para. 13. The terms “establishing the facts” and “applying the civil standard” are to be understood in this context. Such an approach reinforces the primacy of the headteacher’s role who makes the decision permanently to exclude using his or her professional judgment in the circumstances of each case: RWU, para. 13.[37]Stage 3 is the IRP’s review of the lawfulness of the governing body’s decision. It is governed by s. 51A(3)(c) of the 2002 Act and reg. 25 of the Regulations. Where the governing body declines to reinstate a permanently excluded pupil and a relevant person (in other words, a parent of a pupil aged under 18 or a pupil aged 18 or more) requests a review of that decision, the governing body must, at its expense, make arrangements for the review: reg. 25(1)(a) of the Regulations.[38]The review panel’s role is to review the GDP’s decision not to reinstate the permanently excluded pupil. It applies the civil standard of proof to questions of fact and has regard to any present SEN expert’s views: paras. 200, 202 and 210 of the Guidance.[39]If the relevant person so requests, the governing body must appoint, for the purposes of the review, an SEN expert “to provide impartial advice on how special educational needs may be relevant to the decision to exclude the pupil permanently”: reg. 25(1)(b) of the Regulations. Para. 18 of Sch. 1 to the Regulations defines the SEN expert’s role for the purposes of a review of the governing body’s decision. It is limited to advising the review panel, orally or in writing or both, impartially, of the relevance of special educational needs in the context and circumstances of the review. They do not include making an assessment about whether the pupil has special educational needs.[40]Para. 13 of Sch. 1 to the Regulations provides that if a relevant person has requested the appointment of an SEN expert but that expert is not in attendance, the relevant person may ask the review panel to adjourn the review to a later date or time so that the SEN expert, or an alternative SEN expert, may attend. The review panel must make the relevant person aware of its right to seek an adjournment and if the relevant person asks for one, the panel must grant it: paras. 13(2) and (3).[41]The review panel is required to consider those matters prescribed by reg. 25(4) of the Regulations. It may uphold the governing body’s decision; recommend that the governing body reconsiders the matter; or, if it considers that the governing body’s decision was flawed in public law terms, quash the decision and direct the governing body to reconsider the matter. Where a review panel quashes the decision, it may order the governing body to pay the sum of £4,000 to the local authority if, after quashing, the governing body reconsiders the exclusion and declines to reinstate the pupil or fails to reconsider the exclusion within 10 school days: s. 51A(4) of the 2002 Act and regs. 25(5) and 26(1) of the Regulations.[42]In A Parent v. GB XY School [2022] EWHC 1146 (Admin), Lang J, at para. 33, explained that the statutory scheme under s. 51A(4) of the Act gave two distinct powers to the IRP: first, a greater quashing power which “results in the nullification of the governing body’s decision and a requirement to reconsider” and a lesser power to recommend reconsideration. The former can be exercised only when the review panel has found a public law error in the governing body’s decision: s. 51A(4)(c) of the 2002 Act.[43]Stage 4 arises if the IRP either quashes the governing body’s decision or recommends reconsideration. In both cases, the governing body looks again at the lawfulness of the pupil’s permanent exclusion. The nature of the GDP’s reconsideration is the same irrespective of whether the review panel has recommended or directed reconsideration: R (LM) v. Academy Trust [2024] EWHC 2267 (Admin), para. 45; R (A) v. Governing Body of XYZ School [2022] EWHC 1146 (Admin), paras. 87-90.[44]When exercising functions under s. 51A(1) of the 2002 Act or the Regulations, the headteacher, the governing body and the review panel must each have regard to the guidance published by the Secretary of State for Education. To some extent the Guidance repeats the substance of the statutory requirements summarised above, it is useful to set out the relevant parts of the Guidance:(a) Where requested by a relevant person in the application for a review, the school must appoint, fund and indemnify an SEN expert: paras. 189 and 190.(b) The SEN expert’s role is to provide impartial and specialist advice on how SEN matters may be relevant to the permanent exclusion. That said, it is not part of the SEN expert’s role to make an assessment of the pupil’s special educational needs: para. 232. The expert’s focus is required to be whether the school’s policies which relate to SEN, or the application of those policies was lawful, reasonable and procedurally fair. If the SEN expert concludes that this was not done, s/he should, where possible, advise the panel on the possible contribution that this could have made to the pupil’s circumstances: para. 233.(c) The governing body must take reasonable steps to identify a date for the review that all parties, and any SEN expert appointed to give advice in person, are able to attend: para. 155.(d) The review panel is expected to understand the legislation that is relevant to permanent exclusions and the legal principles that apply: para. 226.(e) The chair of the review panel should outline the procedure to be followed and explain that the panel is independent of the school, the local authority and (in the case of an academy) the academy trust. The panel should support all parties to participate in the review and ensure that their views are properly heard. The independent review should be conducted in an accessible, unthreatening, and non-adversarial manner: para. 219.(f) Pertinently, where an SEN expert has been requested but is not present, the panel should make parents aware of their right to request that the review is adjourned until an SEN expert can attend: para. 220.(g) Where the review panel directs or recommends reinstatement, the governing body must consider afresh whether the pupil should be reinstated in light of the panel’s conclusions: paras. 255 and 260.

The 2010 Act

[45]For the purposes of s. 26 of the 2010 Act, a person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[46]The public sector equality duty (“the PSED”) is found in s. 149 of the 2010 Act. It requires public authorities to have due regard to three aims: first, the elimination of discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 Act; secondly, to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; thirdly, foster good relations between persons who share a relevant protected characteristic and persons who do not share it. In relation to the latter aim, public authorities must have due regard to the need to tackle prejudice and promote understanding. The PSED applies to individual decision-making by public authorities including decisions permanently to exclude a pupil: Pieretti v. London Borough of Enfield [2010] EWCA Civ 1104, para. 26. PART 3 – the grounds of review Ground 1 – the alleged unlawful failure to appoint an SEN expert at the IRP hearing in PZP’s claim PZP’s submissions

PART 3 – the grounds of review

[47]PZP’s primary point is that the governing body is under an absolute duty to appoint an SEN expert to attend the review panel hearing and it failed to perform that duty in breach of reg. 25(1)(b) of the Regulations and para. 155 of the Guidance. That breach caused significant procedural unfairness to PZP in four respects:(a) The SEN expert serves an exploratory function under reg. 25(1)(b). An expert would advise the review panel on matters related to a pupil’s special educational needs in ways that unrepresented parents may not have considered or been able to express. For that reason, PZP contends that it is not possible to determine by reference to the IRP’s decision of 13 January 2025 what impact an SEN expert would have had on the questions considered at the hearing and in the decision.(b) PZP’s mother and grandfather submitted that the school had failed to provide adequate support to meet PZP’s special educational needs in response to his earlier behavioural needs and for the purposes of the investigation of the incident. It is said that an SEN expert would have provided relevant guidance on these two points.(c) Para. 56 of the Guidance requires the school, where there are concerns about the permanent exclusion of a pupil with special educational needs, to consider what additional support may be required. It is submitted that guidance from an SEN expert would have been relevant to the question whether permanent exclusion was proportionate.(d) The school accepts that PZP is disabled for the purposes of the 2010 Act. An SEN expert could have given impartial advice on whether the school had complied with its duties under that Act. If the school had not done so, there would have been relevant mitigation.[48]Particular weight is placed on para. 13(2) of Sch. 1 to the Regulations. PZP had the right, on finding that the SEN expert was not at the hearing, to ask the IRP to adjourn to a later date or time when the expert could attend. PZP also cites para. 220 of the Guidance (which says that the review panel should make parents aware of their right to an adjournment) and para. 219 which advises that the review panel should support all parties to participate in the review and ensure that their views are properly heard. It is said that making PZP’s family aware of their right requires more than simply saying that the hearing “could” be adjourned as the IRP’s decision records.[49]To the extent that PZP’s family agreed to proceed without an SEN expert, their agreement was uninformed. The family had no real awareness of their right to adjourn because of their lack of substantive understanding of why they might wish to exercise their right or the consequences of not doing so. For these reasons, the family did not waive the right to an adjournment. If the family’s request for an SEN expert can be effectively ignored by the governing body and then addressed by a review panel paying “lip service” to the fact that the hearing “could” be adjourned when the hearing has already started, the statutory obligation under para. 13 of Sch. 1 to the Regulations is diluted.

The school’s submissions

[50]The school contends that the requirement placed on the governing body under reg. 25(1)(b) of the Regulations is qualified in two respects: first, a relevant person may waive the right to review by lodging a written notice. Although the statute is silent on whether the relevant person may waive or withdraw a request for the appointment of an SEN expert, “that may be readily implied as the ancillary right or entitlement to request an SEN expert must be capable of waiver.” Secondly, para. 11(2) of Sch. 1 to the Regulations provides that the governing body must ensure that a review panel hearing is fixed for a time when an SEN expert is available to attend “so far as it is reasonably practicable to do so”.[51]PZP appears to accept in paras. 50 and 56 of his skeleton argument that the right or entitlement to an SEN expert at the review hearing is capable of waiver. Ground 1 stands or falls on the answer to the questions whether(a) the governing body complied with the requirements of para. 13 of Sch. 1 to the Regulations and(b) PZP’s family waived their right to an SEN expert. It is submitted that the evidence adduced by the school and the IRP demonstrates that there was a valid waiver and no breach of reg. 25(1)(b) of the Regulations because the family withdrew their request or, alternatively, waived their right/entitlement to an SEN expert. PZP’s family withdrew their request on a fully informed basis notwithstanding PZP’s grandfather’s retrospective view. The IRP and the school ensured that the family was aware of the right to request an adjournment before and during the hearing. Indeed, the IRP exceeded the requirements of para. 13 of Sch. 1 to the Regulations by informing the family that it would stay vigilant for any possible detriment to PZP in which case they would adjourn.

The IRP’s submissions

[52]The IRP’s essential position is that, as a matter of principle, where an SEN expert does not attend an IRP hearing, the family may waive the entitlement to have an expert present and to proceed with the hearing. In PZP’s case, an adjournment to take into account the non-attendance of the SEN expert was clearly canvassed with PZP’s family at the start of the hearing. PZP’s mother positively waived any right for the SEN expert to attend. The IRP properly offered to ensure that it would revisit the need for an adjournment if this was required at any stage during the proceedings. The potential relevance of an SEN expert was confined to providing context for other previous disciplinary incidents although the IRP panel could only consider the incident. The IRP made sure that it had an open mind about the attendance of the SEN expert. It asked the headteacher questions on the matters which the expert might be expected to address, primarily about the effect of PZP’s dyslexia on providing a statement for the school’s investigation. At no stage during the hearing was reference made to any direct link between PZP’s diagnosis of dyslexia, the incident or the use of racial slurs. In the circumstances, the IRP’s decision to proceed without an SEN expert and the manner in which it approached the hearing were lawful, rational and procedurally fair. Discussion[53]Reg. 25(1)(b) of the Regulations is clear: where, as here, the excluded pupil’s parent asks for an SEN expert to be appointed, the governing body must do so. PZP’s mother asked for an SEN expert but none was appointed. The evidence (which I accept) is that the omission was an honest oversight. The request was sent to the correct employee who, because of ill health, was not at work and so he did not act upon it.[54]As no SEN expert was appointed as required by reg. 25(1)(b), none attended the review. In such circumstances, paras. 13(2) and (3) of Sch. 1 to the Regulations are similarly clear. PZP’s family had the right to ask for an adjournment so that an SEN expert may attend and, if so, the IRP must adjourn the review. Para. 13(3) requires the IRP to make sure that the family of an excluded pupil is aware of their right under para. 13(2).[55]Ground 1 therefore turns on two questions: the first is one of fact: whether the IRP made PZP’s family aware of their right to seek an adjournment under para. 13(2). The second is whether PZP waived his right to an SEN expert. I shall deal with each in turn.

Whether the IRP made PZP’s family aware of their right to seek an adjournment?

[56]Turning to the relevant evidence, PZP’s grandfather dealt with the IRP hearing and the absence of the SEN expert at paras. 28-31 of his statement. He said that he and PZP’s mother decided to proceed with the hearing because she had taken a day off work and did not want to take off another. The family “reluctantly agreed to proceed so long as the minutes reflected our concern and complaint that there was no SEN specialist in attendance.” The family considered the SEN expert’s advice to be relevant to two points: first, the lack of time and opportunity PZP had to respond to the allegation that the attack was racially motivated; secondly, to “contextualise the 163 entries in [PZP]’s behaviour report relating to disruptive behaviour.” The family considered it important to establish that PZP was not a risk to staff and students and therefore should have remained in school.[57]The school’s relevant evidence is in paras. 15-24 of its Director of Safeguarding and Inclusion’s statement. She said that she apologised that the family’s request for an SEN expert had not been acted upon but that the hearing “could be adjourned if they wished, in order to allow for an SEN expert to attend.” The Director said that before the hearing started, the clerk asked the family several times if they wanted to proceed with the hearing or to adjourn to allow for an SEN expert to attend. The family, however, decided to proceed. It is said that the clerk “emphasised that the family were able to stop proceedings at any time if they felt that they required an SEN expert to be present.” The Director also said that the clerk also discussed the point with the IRP. The panel members agreed to proceed if the family were “comfortable” in doing so. They also said that they would “pause and adjourn the meeting if they felt that the lack of an SEN expert was detrimental to the Claimant’s case.” The Director was not present for the hearing itself. She says that the clerk later said to her that the question of the SEN expert was raised and noted at the start of the hearing. The family again decided to proceed.[58]The statement of Patricia D’Souza, the IRP’s solicitor, exhibited an e-mail (dated 3 September 2025) from one of the IRP members. The e-mail was the panel member’s response to a request from the IRP’s solicitor to assist with the facts relevant to ground 1. It materially stated that:
“The IRP explicitly offered the family at least two opportunities to request an adjournment so that any additional expertise or representation could be arranged. At no stage did the family indicate that they wished to delay proceedings in order to secure a SEND specialist, nor did they raise concerns that they were unable to present relevant evidence or arguments on this matter. In addition, it is clear from the IRP notes that the family did not link his SEND needs to the incident or raise questions about this. However, I do understand the judge’s reasoning that the SEND expert may have guided the family with appropriate questions.”
[59]The issue of an adjournment was dealt with in the introduction to the IRP’s decision:
“It had been brought to the attention of the Panel that the appellants had requested the attendance of an independent SEN Expert, but that for whatever reason, this had not been acted upon. All parties agreed to continue with the hearing but if, during the giving of the evidence by either side, it became apparent that the attendance of an SEN expert was crucial to the case of either parties [sic], then the meeting would adjourn to a future date.”
[60]For the sake of completeness, three extracts of the IRP’s decision should be noted:(a) At p. 6, the decision recorded that PZP’s grandfather asked for a short adjournment which was allowed. On his return, PZP’s grandfather said that “a lot of other suspensions mention disruptive behaviour which was why an SEN Expert would have been useful.”(b) At p. 9, PZP’s grandfather said that PZP “should have been given the opportunity to respond to the allegation of racism which was new to him at the meeting on 21st October. Owing to his SEN he needed time to process – this was procedurally unfair.” Below that point is a comment, in emboldened text, that the family’s case was contained in a 40-page long document. The notes record the points made by PZP’s grandfather in the hearing.(c) Questions from the panel are noted on p. 9. Seemingly prompted by PZP’s grandfather’s earlier comment about an opportunity to respond to the alleged racism, one of the panel members first asked the headteacher whether PZP had the opportunity to write a statement after he was told that he would be permanently excluded for participating in a racially motivated assault. The panel member next asked whether, in light of (i) the usual practice that pupils would write their statements under examination conditions and (ii) PZP’s dyslexia, he was given the opportunity to do so. The headteacher responded that it was a “really structured day as school was dealing with 4 families.”[61]In answering the question, PZP’s grandfather’s statement provides little assistance because it does not address what the IRP said (whether by itself or its clerk) to the family about their right to seek an adjournment. Instead, it focussed on the family’s decision, for understandable and practical reasons, to proceed without an SEN expert.[62]The statement of the school’s Director of Safeguarding and Inclusion has relatively greater relevance. Two aspects of her evidence are pertinent: the first concerns several occasions, before the hearing, when the clerk(a) asked the family whether they wished to proceed or to adjourn to allow an expert to attend and(b) advised that the hearing could stop at any time. The second is a post-hearing conversation between the clerk and the Director in which the former said that the panel had raised the question of an adjournment at the start of the hearing but the family had decided to proceed.[63]The second piece of the Director’s evidence is consistent with the e-mail of 3 September 2025 sent by a panel member to Ms D’Souza. The e-mail is clear that the IRP offered the family the opportunity to seek an adjournment so that an SEN expert could attend on at least two occasions. The e-mail is also clear that(a) the family decided to proceed and(b) no concerns were raised that they were unable to present evidence or arguments on any point.[64]In submissions, Mr Persey and Ms Thomas attached great weight to that part of the IRP’s decision where it is said that the hearing would be adjourned if the attendance of an SEN expert was “crucial” to the parties’ cases. It was submitted that, by setting the threshold so high, the IRP effectively ignored its statutory obligation to grant an adjournment if the family asked for one. In my judgment, this submission rests on an unduly narrow and incomplete view of the evidence. In short:(a) The relevant part of the IRP’s decision is two sentences long. It is only a summary: it is not and does not purport to be an exact transcript of all that was said about an adjournment. However, two points are tolerably clear from the text: first, there had been some discussion of an adjournment and that PZP’s family had decided to proceed; secondly, notwithstanding the family’s decision to proceed, if during the course of the hearing it became apparent that expert evidence was important to the parties’ positions, the hearing would be adjourned. The relevant part of the decision does not suggest that at the outset the IRP set any threshold for adjourning the hearing. There is the separate and distinct matter about what would happen if, having decided to proceed, either side thought that SEN expert evidence had become crucial.(b) The statements of PZP’s grandfather, the school’s Director of Safeguarding and Inclusion and the panel member’s e-mail of 3 September 2025 do not say that the IRP set any threshold for granting an adjournment at the start of the hearing. Had they done so, PZP’s grandfather would have addressed the point in his statement but, as set out above, it does not deal at all with what the IRP said about an adjournment. It concentrates, understandably, on the reasons why the family took a pragmatic view and decided to press ahead without an SEN expert.(c) The weight of the evidence is that by its clerk before the hearing and by itself at the start of the hearing, the IRP asked the family whether they wished to adjourn to allow an expert to attend and it imposed no threshold or condition.[65]In answer to the question whether the IRP made the family aware of their right to seek an adjournment, the evidence plainly indicates that before the hearing the clerk asked the family whether they wished to adjourn and the IRP itself asked them whether they wanted to the opportunity to adjourn to and at the start of the hearing, the IRP told PZP’s family about their right to seek an adjournment. To use the language of para. 13(4) of Sch. 1 to the Regulations, the IRP ensured that the family was aware of their right to adjourn both before the hearing started and at its outset. The family decided pragmatically to proceed with the hearing. On the evidence before the court, the IRP discharged its obligation under para. 13(4). . Whether PZP’s family waived their right to an SEN expert?[66]The next question is whether PZP and his family waived the right to have an SEN expert attend. A waiver is a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. It cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to do so: Millar v. Dickson [2002] 1 WLR 1615 at 1629, para. 31. As a matter of principle, the parties are seemingly agreed that PZP and his family could waive their request for an expert to attend the review hearing. The family’s decision to proceed with the hearing without an SEN expert was voluntary: there is no contrary evidence or indication. It was also unequivocal: the contemporaneous record of the review hearing which forms part of the IRP’s decision and the family accepts as correct does not suggest otherwise.[67]The critical point is whether the family’s decision to proceed was informed. In my judgment, it was. PZP has been well served by his mother and grandfather’s determined efforts on his behalf. They are obviously articulate and, as illustrated by the substance of their 40-page submissions, they had a firm sense of the points that they wanted to put before the IRP. As summarised above, PZP’s grandfather’s statement identified the issues on which the family sought an SEN expert’s opinion. The family had thought carefully about these matters and their relevance to the review. When it became clear that an SEN expert had not been appointed, PZP’s mother and grandfather were well placed to decide whether, in light of the arguments they wanted to advance, they wished to proceed or to adjourn. Having considered matters, they decided to carry on without an expert. Notably, there is nothing in the evidence which suggests that the family felt under any form of pressure from any quarter to proceed.[68]Mr Persey and Ms Thomas submitted that, without the help of a lawyer, the family’s decision to proceed was materially uninformed because they would not have been aware of the full consequences of going ahead without the assistance of an SEN expert. In considering this submission, I have had at the forefront of my mind the stress and anxiety caused by the fact of PZP’s exclusion and the potentially daunting nature of the review process for his mother and grandfather. However, on the evidence before me, I am not satisfied that the absence of a lawyer had any material adverse effect. As set out above, PZP’s family had identified for themselves the points that they wished to advance before the IRP including those areas in which they hoped for assistance from an SEN expert. PZP’s mother and grandfather were well able to decide for themselves whether to carry on with the hearing without an expert. In submissions, it was said that PZP’s family were “none the wiser” about the effect of proceeding without an expert because they were litigants in person. That argument does a disservice to the family’s understanding of the points they wished to press generally and those they wanted the SEN expert advice to consider. Finally, there is no evidence that they were under any pressure to proceed. There is nothing in the evidence to suggest that the family misunderstood or in some material way failed to appreciate all the consequences of proceeding without an expert. Therefore, on the basis of the evidence before the court, I am satisfied that the family waived their right to ask for an SEN expert to attend the review.[69]For these reasons, ground 1 fails. Ground 2 – the alleged irrationality by the IRP in PZP’s claim PZP’s submissions

Ground 2 – the alleged irrationality by the IRP in PZP’s claim

[70]The central point is that the flaws found by the IRP in the GDP’s decision amounted to public law errors which, in turn, justified the quashing of that decision. The relevant findings were three-fold: first, the IRP was not satisfied that the school had followed its own policies; secondly, the IRP found no evidence that the GDP had addressed any equalities issues in its deliberations which was a concern as the permanent exclusion had been based on an alleged racist comment; thirdly, the IRP had considerable concerns about the absence of robust challenge to the headteacher on the question whether he had given PZP an opportunity to reflect on his permanent exclusion and to make a statement following the meeting on 21 October 2024.[71]The flaws found by the IRP amounted to public law errors: first, not following policies is a well-established basis of unlawfulness; secondly, not considering the equalities issue is at least a breach of the PSED because the absence of any consideration of the 2010 Act must mean that there was no due regard of the statutory criteria in s. 149. In the circumstances, the default position is that the decision should be quashed, as paras. 208 and 229 of the Guidance demonstrate.[72]The criteria for quashing the GDP’s decision were met but the IRP did not do so and failed to explain why they did not do so. That omission robs the decision of its logic and renders the IRP’s decision to recommend reconsideration irrational: KP v. The Secretary of State for Foreign and Commonwealth Affairs [2025] EWHC 370 (Admin), para. 56. The fact that the errors found by the IRP were later reconsidered by the GDP does not render the ground academic. The school’s submissions[73]The school’s essential response was that, applying paras. 227-229 of the Guidance, the IRP found no or no sufficient public law error. A failure to follow a policy does not necessarily amount to a material public law error. PZP did not (and cannot now) raise any allegation of race discrimination or breach of the PSED on the grounds of race. If the GDP fell into error by not considering a race equality point, the school relied upon Underhill LJ’s conclusion, at para. 82 of his judgment in TZA, that “a focus on the requirements of the PSED in the context of an individual exclusion decision is liable to be distracting and unhelpful.” That observation is apt here because PZP has not identified which of the relevant equality objectives were relevant to his case and, if so, how.[74]PZP’s case effectively asks the court to substitute its view of the merits for that of the IRP on the threshold in s. 51A(4) of the 2002 Act and/or to raise an unpleaded reasons challenge. In any event, the public law concerns in the IRP’s decision were properly considered and addressed when the GDP reconsidered its decision whose assessment is effectively unchallenged. As such, PZP’s claim is academic. In particular, the outcome of the GDP’s reconsideration would have been the same whether it was carried out following a direction or a recommendation.

The IRP’s submissions

[75]The IRP’s essential submission was that the IRP’s decision cannot be faulted. It concluded that there was no evidence of illegality. Although there were some concerns about procedural impropriety, none amounted to a clear or fundamental failure of process. Finally, there was a significant reasons challenge to the clarity of the GDP’s conclusions on the basis of the decision permanently to exclude PZP and the extent to which that engaged joint enterprise or was racially motivated. On that basis, the IRP recommended reconsideration by the GDP. In any event, it is said that there is no practical difference in the manner in which the reconsideration decision is determined whether it was following a direction or a recommendation.

Discussion

[76]The starting point is the proper approach to determining whether the IRP’s conclusion on disposal was irrational as alleged. At paras. 55-57 of his judgment in R (KP) v. Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin), Chamberlain J described the elements of unreasonableness as “process rationality” and “outcome rationality” thus:
“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] 1WLR 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, [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 BB 22, 233-4) or, in simple 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).”
[77]As to the appropriate standard of review, the court’s approach to assessing the rationality of a decision varies depending upon the importance of the interests affected by it or, put differently, the gravity of its potential consequences: KP, paras. 60, 61 and 76.[78]In this case, I accept that the importance of PZP’s education is a weighty factor which points in favour of a relatively exacting standard of rationality review. The impact on and implications for a pupil facing permanent exclusion will tend to increase the scrutiny which the court will apply to the challenged decision. Equally, it tends to qualify the breadth of the benevolence with which the court will read a reasoned decision. I remind myself, however, that the more exacting nature of the court’s review does not mean that it will adopt a legalistic, technical or nit-picking approach to the expression of reasons in the IRP’s decision: RWU, paras. 57 and 58.[79]I now turn to s. 51A(4) of the 2002 Act. It provides that an IRP may uphold the GDP’s decision (s. 51A(4)(a)); recommend reconsideration by the GDP of its decision (s. 51A(4)(b)); or, if it considers that it was flawed when considered in the light of the principles applicable on an application for judicial review, quash the GDP’s decision and direct it to reconsider the matter (s. 51A(4)(c)).[80]Para. 206 of the Guidance effectively repeats s. 51A(4)(c) and at para. 227 it explains the relevant principles of judicial review thus:
“Illegality – did the governing board act outside the scope of its legal powers in deciding that the pupil should not be reinstated? Irrationality – did the governing board rely on irrelevant points, fail to take account of all relevant points, or make a decision so unreasonable that no governing board acting reasonably in such circumstances could have made it? Procedural impropriety – was the governing board’s consideration so procedurally unfair or flawed that justice was not clearly done?”
[81]Para. 229 materially provides that:
“Where the criteria for quashing a decision not to reinstate has not been met, the panel should consider whether it would be appropriate to recommend that a governing board reconsiders its decision not to reinstate the pupil. This should not be the default option but should be used where evidence of procedural flaws has been identified that do not meet the criteria for quashing the decision, but which the panel believes justify a reconsideration of the governing board’s decision …”
[82]Section 6 of the IRP’s decision contains its assessment of whether the GDP had fallen into error. In summary:(a) The IRP was satisfied that the headteacher had acted lawfully in reaching his decision permanently to exclude PZP in the sense that the decision was one that he was allowed to make under the 2002 Act.(b) Irrationality was the IRP’s principal concern. The “fundamental issue” which caused the panel to recommend reconsideration was the insufficiency of the reason for permanently excluding PZP. On that point, there had been a “major failure” by the GDP to consider what amounted to joint enterprise, part of the rationale for excluding PZP permanently. Secondly, although the school’s behaviour policy allowed participation in a joint enterprise to be the subject of a sanction, that power should only be exercised where the relevant role had what was described as a “proportionate impact on the outcome of the incident.” The GDP was said to be “duty bound” to consider that question if permanent exclusion is said to be the last resort but it did not do so. The point that joint enterprise was not included in the permanent exclusion section of the behaviour policy, but only in the part which dealt with suspension, was another relevant factor that was not considered by the GDP. Thirdly, the IRP did not accept that the incident was “partially racially motivated” because it was either racially motivated or it was not. If the former, the GDP should have said so and clearly. If the latter, the GDP should have challenged the headteacher about whether the incident was sufficiently serious to justify permanent exclusion. On that point, the IRP concluded that “the Governors should revisit the case and seek to satisfy themselves as to whether the assault was racially motivated or not and to make a decision accordingly.”(c) Two points are relevant to procedural impropriety: first, the IRP had a concern about the structure and clarity of the GDP’s minutes which did not show the thought processes by which its members reached their decision; secondly, it had considerable concerns about the absence of robust challenge of the headteacher on the question whether PZP was given the opportunity to reflect on his permanent exclusion and the opportunity to provide a statement after the GDP hearing on 21 October 2024.(d) The IRP was unpersuaded that the school had followed its own policies and procedures. Unfortunately, neither the relevant policies and guidance nor their material provisions nor the extent to which they had not been met were identified. That said, it is tolerably clear that the IRP appears to be referring to the behaviour policy and the matters discussed in sub-para. (b) above.(e) The IRP found no evidence that the GDP had addressed equalities issues at all. The omission was said to be a concern because the permanent exclusion had been based on an alleged racist remark.[83]The weight of the IRP’s reasoned criticism concentrated on the three instances of irrationality. Those flaws touched upon what the panel considered to be the fundamental questions before the GDP, namely(a) whether PZP had participated in a joint enterprise; if so, to what degree;(b) to what extent was the incident racially motivated and(c) whether permanent exclusion was a proportionate sanction. Although the language of the IRP’s decision did not follow that of the Guidance, it is reasonably clear that the panel found that the three instances of irrationality had had a significant effect on the quality of the GDP’s decision-making. That much is evident from the IRP’s view on the clarity of the GDP’s reasoning and conclusions on motive as well as the description of the GDP’s omissions to consider what was meant by joint enterprise as a “major failure” and to answer a question which it is “duty bound” to consider, namely whether exclusion is the last resort. Given its substantive findings, the language in which they are expressed and the absence of an explanation about why it had decided to recommend reconsideration, it is not at all clear why the IRP did not follow the apparent logic of its findings on irrationality and quash the GDP’s decision.[84]In these circumstances, absent any reasoned explanation of why it had decided to recommend reconsideration and not to quash the decision, the IRP’s disposal of the review was, in my judgment, irrational. I should add that even if a more benevolent reading were given of the IRP’s decision, I would have reached the same conclusion.[85]The next question is whether, in light of the GDP’s reconsideration, ground 2 is now academic. For the purposes of s.31(2A) of the Senior Courts Act 1981 (“the 1981 Act”), the question is whether it is highly likely that there would be no substantial difference in the outcome if the legal error had not occurred. The focus is on the impact of the error on the decision-making process that was carried out to determine whether it is highly likely that the decision would not have been substantially different if the error had not been made: R (Bradbury) v. Awdurdod Parc Cenedlaethol Bannau Brycheiniog [2025] EWCA Civ 489, para. 74. This is a high test to surmount. Importantly, it is not for the court to try and predict what the decision-maker 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 s. 31(2A) are unlikely to be satisfied: Bradbury, para. 71.[86]In applying s. 31(2A), the GDP’s reconsideration decision is an important factor. It gave a clear and adequately reasoned answer to each of the points identified by the IRP (particularly the rationality flaws but also the equalities issues). The GDP conscientiously reconsidered the case as the Guidance required it to do. Mr Persey and Ms Thomas do not criticise any aspect of the reconsideration decision. As the case-law summarised in para. 43 above makes clear, the nature of the GDP’s reconsideration would have been the same had it been held following a direction or a recommendation. To the extent that Mr Persey contended that the starting point for reconsideration, following a quashing order, is materially different to that following a recommendation, the argument is inconsistent with authority. I have also considered the existence of the statutory discretion to award compensation to the local authority when a GDP decision is quashed. Mr Persey and Ms Thomas argued that, in such circumstances, a reconvened GDP may consider the discretionary power to be relevant and so the court cannot be satisfied that the high threshold set by s. 31(2A) is met. I am not, however, persuaded that, having regard to the substance of the GDP’s reconsideration, the facts of this case and the other matters summarised above, the mere existence of a discretionary power to award compensation is enough by itself to diminish the high likelihood that the decision would not have been substantially different if the error had not been made.[87]For these reasons, ground 2 also fails. Ground 3 – the alleged misapplication of the 2010 Act in STW’s claim STW’s submissions

Ground 3 – the alleged misapplication of the 2010 Act in STW’s claim

[88]The Claimant contended as follows:(a) IRPs are required to consider arguments under the 2010 Act and to give effect to the Guidance which requires compliance with duties under that Act when considering whether to exclude a pupil. The case-law is characterised by an expectation that IRPs will consider and apply the 2010 Act: TZA, para. 41.(b) The IRP’s error of law was made at the first and most simple step of any consideration of the duties under the 2010 Act: it failed to identify that STW had a protected characteristic and so the IRP failed to consider the 2010 Act at all.(c) STW does not have to prove that a correct identification of his protected characteristic would have led to a different outcome but there are various respects in which proper identification of STW’s protected characteristic would likely have changed the IRP’s decision. For instance, the IRP would have considered whether the headteacher had had due regard to the PSED when deciding permanently to exclude STW. There should also have been consideration of the duty to foster good relations between persons who share relevant protected characteristics and those who do not. The IRP’s conclusion that STW had no protected characteristics meant that the PSED was not considered at all.(d) If the IRP had correctly identified that STW had a protected characteristic, they may have concluded that the May 2024 incident and the alleged subsequent bullying of STW was related to the latter’s race and amounted to race-based harassment under s. 26 of the 2010 Act.(e) If the IRP had not fallen into error at the first step, STW would have been able to make arguments in mitigation. For example, the IRP might have concluded that earlier intervention and support for STW in the face of race-based harassment would have prevented the incident from happening. The IRP might also have concluded that targeted future support would have allowed STW to stay at the school without seriously harming the education or welfare of staff or pupils.(f) In any event, if STW were the victim of race-based harassment, it would have been relevant mitigation irrespective of whether X was involved in the May 2024 incident. The IRP’s error of law meant that it did not consider the school’s obligations under the 2010 Act at all.(g) Accordingly, the IRP’s decision to uphold STW’s permanent exclusion should be quashed.

The school’s submissions

[89]There were two principal elements to the school’s response. STW’s case effectively ignores the reality of the decision-making process. It denies the important fact that each stage of the process substantively recognised equalities objectives. In any event, ground 3 rests on a putative fact which is unsupported by evidence, namely that STW had been previously assaulted by X and the May 2024 incident is a necessary part of the context in which the incident should be considered. Neither the school nor the GDP nor the IRP found any evidence that X had been involved in the May 2024 incident. Consequently, STW has not established the fact upon which this ground depends and so it should fail. Alternatively, other aspects of STW’s case are weak and they do not advance his case.

The IRP’s submissions

[90]The IRP submitted that it expressly addressed equalities issues as part of its consideration of the GDP’s decision. Although it erroneously stated that STW had no protected characteristic, that error did not vitiate its overall consideration of equalities issues and discharging the PSED. In any event, STW’s case is unattractive. He was part of a group that carried out a racially motivated assault on a fellow pupil. There is no sustainable basis on which it can be alleged that STW’s race characteristic had any bearing at all on his propensity to participate in an assault.

Discussion

[91]It is useful to start with STW’s pleaded case. Ground 3 is pleaded in paras. 48-50 of the detailed statement of facts and grounds. It makes three points: first, equalities issues lie at the heart of STW’s exclusion but the IRP misdirected itself as to its duties under the 2010 Act. Secondly, STW was excluded because of a racially motivated assault and so race was at the core of the case. His race is a protected characteristic and he is of a different race to X who is said to have assaulted in the May 2024 incident, that is to say, before the incident which is said to have been racially motivated. In those circumstances, the PSED was plainly engaged. Thirdly, the GDP should have considered and the IRP should have scrutinised whether and, if so, to what extent the PSED was discharged. In concluding that STW had no protected characteristics at all, the IRP committed a basic error which meant that “they could not possibly have lawfully and adequately considered the GDP’s compliance with the PSED despite the obvious equalities issues at play.”[92]As pleaded, ground 3 rests on the factual premise that in May 2024, STW was the victim of an assault in which X was involved. That premise is not, in my judgment, supported by any finding of fact. STW’s initial statement, given as part of the school’s investigation, simply said that “someone from another school ran me over on a bike. It was about 4/5 kids. Some were on foot.” X was not alleged to have played a part in the May 2024 incident. STW and his mother later submitted to the GDP and the IRP that X had a prominent role in the attack but no corroborative evidence was put before either panel. In the circumstances, the IRP concluded that there was no independent evidence connecting X to the May 2024 incident and so it was not a matter that the GDP could properly take into account. Moreover, no new evidence had emerged which, properly analysed, could link X to the May 2024 incident. STW does not challenge that conclusion. Consequently, as there is no finding that X was in any involved in the May 2024, there is no finding which engages the PSED as alleged in ground 3.[93]Mr Amunwa and Mr Bentley submitted, and I agree, that STW’s case was effectively inviting the court to disregard the absence of a finding that X was involved in the May 2024 incident, to substitute its own assessment of the evidence and to conclude that he was a participant. As Arnold LJ observed in The King (SAG) v.Governing Body of Winchmore School [2025] EWCA Civ 1335 at para. 131, the legislative scheme confers responsibility for deciding whether a pupil should be permanently excluded on the headteacher and the governing body. Once a decision permanently to exclude a pupil has been reviewed by an IRP 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 for those of the responsible decision-maker. Ground 3, therefore, fails.[94]Irrespective of the claimant’s fatal failure to prove the factual foundation of ground 3, it would not have succeeded for three other reasons which I should deal with briefly. First, the substance of ground 3 is inconsistent with the basis upon which STW’s case was presented to the GDP. His case was clear: race (whether his own or that of X) was irrelevant. Although the detailed statement of facts and grounds did not identify the PSED-related issue that was raised by STW before the GDP, it is clear from its decision that the GDP considered STW’s circumstances based on the arguments and evidence placed before it on his behalf.[95]Secondly, it is common ground that the IRP’s conclusion that STW had no protected characteristics was wrong. His race was one such characteristic. I agree but I am not persuaded that the error was material. There is much force in Mr Amunwa and Mr Bentley’s submission that the arguments advanced in support of ground 3 are based on an unduly narrow view of the evidence. To the limited extent that the PSED is relevant in individual and fact-specific cases (see R (Marouf) v. Secretary of State for the Home Department [2025] AC 130, para. 62; TZA, paras. 9 and 82), relevant factors were considered at each stage of the decision-making process. The headteacher’s decision and, in particular, his application of the second limb of the two-stage test, had due regard to community tensions, the effect of the incident on the school community and professional advice from the police. The GDP, whose members were, I am told, based in the local area, had due regard to fostering good relations in the context of tensions in the community following the incident. If the decision-making process is viewed overall and having regard to the predominantly lay composition of the IRP, it would be unduly formalistic to read the IRP’s decision in isolation from the headteacher’s decision and the GDP’s conclusions.[96]Finally, even if STW had established ground 3, s. 31(2A) of the 1981 Act would have applied. In that event, two significant factors would have weighed heavily against the grant of relief: first, the GDP found that the permanent exclusion was justified on the ground of the assault alone. On that basis, it is not clear what, if any, further consideration of equalities issues was necessary or would have altered the result. Secondly and in any event, the GDP and the IRP both concluded that a racial slur had been used during the incident, a finding which is not challenged in these proceedings. A policy of zero tolerance towards racially motivated assaults is consistent with the pursuit of equalities objectives. In these circumstances, having due regard to STW’s race and the need to foster good relations between different races would be highly unlikely to produce a different outcome. On the facts of this case, as Mr Amunwa submitted, as a duty of process rather than outcome, the PSED is incapable of producing a materially different result.

Conclusion

[97]For the reasons set out above, both claims are dismissed. I recognise that my conclusions will be disappointing for PZP, STW and their families. Notwithstanding the skill with which Mr Persey and Ms Thomas argued their claims, for the reasons summarised above, I am not persuaded that the review panels which carefully considered their cases made any material public law error or none which justifies relief.[98]Finally, I would like to thank all counsel for their considerable assistance and their efficiency at the hearing. I should also thank the claimants’ solicitors for their preparation of the bundles and their help in providing hard copies of the relevant materials.