AC-2024-LDS-000204 - [2025] EWHC 1983 (Admin)

Procedure

Bringing a claim for judicial review of a decision of a public authority requires the permission of the Court. That ordinarily involves a preliminary review by a judge of the arguable merits of the claim and whether it complies with the formal and procedural requirements of the Rules of Court. That is for good reason. It filters out claims which have not been properly brought or which lack arguable substance; and for claims going forward it is an opportunity to clarify and focus them. This protects public authorities and the public purse from unwarranted challenge, and in viable claims helps the parties and the Court identify and resolve the key issues.

This case however came before me on a ‘rolled up’ basis. The question of permission had not been dealt with in advance, but was instead remitted to be considered at the same time as determining the merits of the case. That case-management decision was taken on the basis that the delay inherent in the ordinary staged procedure would be detrimental to the interests of the vulnerable child Claimants, and also to the School for whom the claims have potentially major consequences, reputational and otherwise.

But rolling the permission stage into the substantive trial inevitably has disadvantages too, and in this case three disadvantages in particular. First, like many Judicial Review claims, the present claims have evolved somewhat over time and continued to do so up to – and perhaps even during – the trial. Crystallising out the precise arguable bases of challenge was therefore unfinished business, with the corresponding challenges for the Defendant in meeting them and the Court in adjudicating upon them. Second, this litigation has generated quantities of factual evidence and material on both sides considerably beyond what might normally be expected in judicial review proceedings, without there having been a clear resolution of precisely what, if any, factual dispute subsisted between the parties or its relevance, if any, to the resolution of the claim. These two factors combined to produce the generation of further factual evidence up to, during the course of, and indeed after, the trial. And thirdly, the case came before me with some unresolved procedural issues about how far the claims had been brought in time, and, in my own mind at least, about how far alternative remedies had been available to, and pursued by, the Claimants.

Grounds of Challenge

The grounds of challenge, as they were advanced before me, were formulated as follows:

These grounds raise a disputed question of law about the interpretation of section 91, questions about the interpretation of the government guidance, and questions about the application of the law, the guidance, and the human rights framework, to the facts of the School’s application of its discipline policy to the Claimants. The policy itself is not challenged. The facts of its application to the Claimants are, to at least some degree.

The Decisions Challenged

The identification of the decisions under challenge has itself been subject to a process of refinement over the course of the litigation. Mr Squires KC, leading counsel for the Claimants, made clear in his skeleton argument and oral submissions that what is being challenged is – at least – each individual decision to impose isolation or suspension on each Claimant within the three-month period preceding the filing of the claim in each case (the nature of these sanctions is considered more fully below). His developed submissions on the characterisation of those decisions, and the relevance of the antecedent history of the School’s disciplining of the Claimants, is also discussed further below. The identification of the three-month period is of course by reference to the requirement in Civil Procedure Rule 54.5 for judicial review claims to be filed ‘promptly and in any event not later than 3 months after the grounds to make the claim first arose’. No application for any extension of time was before me. Mr Squires KC was also clear that this is not a rolling challenge: the Claimants do not challenge the School’s disciplinary decisions after proceedings were issued.

The evidence suggests that the disciplinary decisions within the relevant time frame and under challenge are therefore as follows below. It is important, however, to note at the outset that the School’s discipline policy, which is considered in detail later in this judgment, and which applied to these decisions, provides for them to be taken within a highly structured context. That context sometimes requires decisions to take account of antecedent disciplinary decisions in specific ways. That may include, for example, by way of triggering more serious sanctions by reference to a ratchet effect produced by an accumulation of lower-level sanctions. It also includes an expectation that a period of isolation will ordinarily follow a period of suspension before a student is readmitted to the ordinary classroom. So the ‘reasons’ for the sanctions summarised below are not necessarily the whole story.

Luke’s claim

Luke’s claim was filed on 27^th September 2024. The preceding three-month period included the period of unauthorised holiday absence from 24^th June to 1^st July, and of course the school summer holidays. Otherwise, the School’s records detail the following disciplinary decisions:

Lydia’s claim

Lydia’s claim was filed on 23^rd October 2024. Here, the preceding three month period began at the end of the summer term. No relevant decisions are recorded before she began Year 9 in September. The School’s records detail the following decisions:

Elise’s claim

Elise’s claim was filed on 27^th September 2024. A decision had been taken on 17^th June 2024 to suspend her. The proximate occasion triggering that decision appears to have been unauthorised absence and an incident in which she verbally abused a member of staff having wrongly accused him of ‘following’ her in a school corridor. The period of suspension began the next day, 18^th June. The School records suggest it was for a period of nine days, making 28^th June the last day and Elise due to return to the School the following Monday, 1^st July 2024. She did not return that day (her mother called the School to say she was unwell and had been prescribed a course of antibiotics, and would not be attending school in the meantime).

It was at the point of this suspension decision, however, that the decision was taken to move Elise into the alternative provision placement. She started there on 15^th July 2024. It appears that she did not return to the School between the suspension decision on 17^th June and starting the alternative provision placement on 15^th July. She has remained there ever since (a trial return to the School in March 2025 was unsuccessful, and terminated within a few days).

On that basis, there was no relevant disciplinary decision in relation to Elise taken by the School within the three months preceding the filing of her claim. Two answers were offered to that point. The first is that the period should be regarded as running from 28^th June, the last day of Elise’s suspension period. I do not think that can be right. The grounds to make the claim in relation to that suspension period clearly ‘first arose’ when the decision was made to impose the penalty. It appears to me in these circumstances that Elise’s judicial review claim is time-barred, and no application for an extension of time was made. It does not appear to be contended that any isolation decision was taken in the relevant period in any event. Nevertheless, I hold the facts of her circumstances in mind in what follows.

The second answer involves a proposition about a ‘continuing course of conduct’, which was made with particular reference to Ground 4, the human rights challenge, and I will look at it in that context.