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

The Education and Inspections Act 2006

Part 7 of the Education and Inspections Act 2006 (‘the Act’) is headed ‘Discipline, Behaviour and Exclusion’. Chapter 1 of Part 7 deals with school discipline. Sections 90 and 91 of the Act fall within this Chapter.

Section 90 defines a disciplinary penalty as follows:

90.

Meaning of “disciplinary penalty”

(1)

In this Chapter, “disciplinary penalty” means a penalty imposed on a pupil, by any school at which education is provided for him, where his conduct falls below the standard which could reasonably be expected of him (whether because he fails to follow a rule in force at any such school or an instruction given to him by a member of its staff or for any other reason).

(2)

In subsection (1), the reference to conduct, in relation to a pupil, includes—

(a)

conduct which occurs at a time when the pupil is not on the premises of a school and is not under the lawful control or charge of a member of the staff of a school, but only to the extent that it is reasonable for the school imposing the penalty to regulate the pupil's conduct at such a time, and

(b)

conduct which consists of a failure by the pupil to comply with a penalty previously imposed on him.

The extended meaning in s.90(2)(b) is relevant to some of the provisions of the School’s disciplinary policy.

Section 91 makes important provision about the circumstances in which the imposition of a disciplinary penalty ‘is lawful’. Grounds 1 and 3 of this challenge allege unlawfulness by reference to it. It provides as follows:

91.

Enforcement of disciplinary penalties: general

(1)

This section applies in relation to a disciplinary penalty imposed on a pupil by any school at which education is provided for him, other than a penalty which consists of exclusion.

(2)

The imposition of the disciplinary penalty is lawful if the following three conditions are satisfied.

(3)

The first condition is that the imposition of the penalty on the pupil—

(a)

is not in breach of any statutory requirement or prohibition, and

(b)

is reasonable in all the circumstances.

(4)

The second condition is that the decision to impose the penalty on the pupil was made—

(a)

by any paid member of the staff of the school, except in circumstances where the head teacher has determined that the member of staff is not permitted to impose the penalty on the pupil, or

(b)

by any other member of the staff of the school, in circumstances where the head teacher has authorised the member of the staff to impose the penalty on the pupil and it was reasonable for the head teacher to do so.

(5)

The third condition is that the decision to impose the penalty was made, and any action taken on behalf of the school to implement the decision was taken—

(a)

on the premises of the school, or

(b)

elsewhere at a time when the pupil was under the lawful control or charge of a member of staff of the school.

(6)

In determining for the purposes of subsection (3)(b) whether the imposition of the penalty is reasonable, the following matters must be taken into account—

(a)

whether the imposition of the penalty constitutes a proportionate punishment in the circumstances of the case, and

(b)

any special circumstances relevant to its imposition on the pupil which are known to the person imposing it (or of which he ought reasonably to be aware) including in particular—

(i)

the pupil's age,

(ii)

any special educational needs he may have,

(iii)

any disability he may have, and

(iv)

any religious requirements affecting him.

(7)

For the purposes of subsection (6)(b)(iii) a pupil has a disability if he has a disability for the purposes of the Equality Act 2010.

(8)

A determination or authorisation by the head teacher for the purpose of subsection (4)(a) or (b) may be made—

(a)

in relation to a particular member of staff or members of staff of a particular description;

(b)

in relation to a particular disciplinary penalty or disciplinary penalties of a particular description;

(c)

in relation to a particular pupil or pupils of a particular description or generally in relation to pupils.

(9)

Where the disciplinary penalty is detention outside school sessions, this section has effect subject to section 92.

(10)

Nothing in this section authorises anything to be done in relation to a pupil which constitutes the giving of corporal punishment within the meaning of section 548 of EA 1996.

(11)

This section is not to be construed as restricting what may lawfully be done apart from this section.

(12)

In this section, “paid member of the staff”, in relation to a school, means any member of the staff who works at the school for payment, whether under a contract of employment or a contract for services; and, for this purpose, it is immaterial whether the contract of employment or contract for services is made with the governing body or proprietor of the school or with any other person.

The Guidance

The Department for Education issued a guidance document ‘Behaviour in Schools – Advice for headteachers and school staff’ in July 2013, most recently updated in February 2024 (‘the Guidance’). It describes itself as providing ‘guidance on support for pupils to behave well and the powers of staff when responding to misbehaviour’. It sets out the centrality of schools’ creating and maintaining high standards of behaviour to the successful provision of a learning environment. It discusses the development of a school behaviour policy and a whole-school culture of good behaviour, as well as how to communicate and deliver that policy and culture. It sets out the complementary roles and responsibilities of school leaders, teachers and staff, pupils, and parents. It deals with responding to misbehaviour, including by way of sanctions and support.

With particular relevance to the present case, it includes this:

Removal from classrooms

Removal is where a pupil, for serious disciplinary reasons, is required to spend a limited time out of the classroom at the instruction of a member of staff. This is to be differentiated from circumstances in which a pupil is asked to step outside of the classroom briefly for a conversation with a staff member and asked to return following this. The use of removal should allow for continuation of the pupil’s education in a supervised setting. The continuous education provided may differ to the mainstream curriculum but should still be meaningful for the pupil.

Removal from the classroom should be considered a serious sanction. It should only be used when necessary, and once other behavioural strategies in the classroom have been attempted, unless the behaviour is so extreme as to warrant immediate removal. Parents should be informed on the same day if their child has been removed from the classroom. As with all disciplinary measures, schools must consider whether the sanction is proportionate and consider whether there are any special considerations relevant to its imposition (see ‘What the law allows’ and ‘Responding to the behaviour of pupils with Special Educational Needs and/or Disability (SEND)’).

Removal should be distinguished from the use of separation spaces (sometimes known as sensory or nurture rooms) for non-disciplinary reasons. For instance, where a pupil is taken out of the classroom to regulate his or her emotions because of identified sensory overload as part of a planned response.

Governance of removal

Headteachers should:

a)

make clear in the school behaviour policy that removal may be used as a response to serious misbehaviour;

b)

maintain overall strategic oversight of the school’s arrangements for any removals, as set out in the school’s behaviour policy;

c)

make sure the reasons that may lead to pupils being removed are transparent and known to all staff and pupils;

d)

outline in the behaviour policy the principles governing the length of time that it is appropriate for a pupil to be in removal;

e)

ensure that the removal location is in an appropriate area of the school and stocked with appropriate resources, is a suitable place to learn and refocus, and is supervised by trained members of staff; and

f)

design a clear process for the reintegration of any pupil in removal into the classroom when appropriate and safe to do so.

Schools should collect, monitor and analyse removal data internally in order to interrogate repeat patterns and the effectiveness of the use of removal. Schools should make data-based decisions to consider whether frequently removed pupils may benefit from additional and alternative approaches (see ‘Initial intervention’), a pastoral review or investigation by the Special Educational Needs Co-ordinator (SENCo), or whether specific departments or teachers may require more support.

Separately, schools should analyse the collected data to identify patterns relating to pupils sharing any of the protected characteristics and the removal policy is not having a disproportionate effect on pupils sharing particular protected characteristics (see ‘Monitoring and evaluating school behaviour’).

When dealing with individual removal cases, headteachers and teachers should:

a)

consider whether any assessment of underlying factors of disruptive behaviour is needed;

b)

facilitate reflection by the pupil on the behaviour that led to their removal from the classroom and what they can do to improve and avoid such behaviour in the future;

c)

ensure that pupils are never locked in the room of their removal. There may be exceptional situations in which it is necessary to physically prevent a pupil from leaving a room in order to protect the safety of pupils and staff from immediate risk, but this would be a safety measure and not a disciplinary sanction and therefore is not covered by this section;

d)

ensure that the Children and Families Act 2014, the Equality Act 2010 and regulations under those Acts are being complied with; and

e)

if a pupil has a social worker, including if they have a Child in Need plan, a Child Protection plan or are looked-after, notify their social worker. If the pupil is looked-after, ensure their Personal Education Plan is appropriately reviewed and amended and notify their Virtual School Head.

Pupils should not be removed from classrooms for prolonged periods of time without the explicit agreement of the headteacher. These pupils should be given extensive support to continue their education including targeted pastoral support aimed to improve behaviour so they can be reintegrated and succeed within the mainstream school community.

Staff supervising areas used for removal should be suitably trained in both the school behaviour policy and the interpersonal skills necessary to manage pupils with a variety of challenging behaviours and contexts.

Suspension and permanent exclusion

All pupils are entitled to an education where they are protected from disruption and can learn in a calm, safe and supportive environment. Headteachers can use suspension and permanent exclusion in response to serious incidents or in response to persistent poor behaviour which has not improved following in-school sanctions and interventions.

We are clear that we trust headteachers to use their own professional judgment based on individual circumstances when considering whether to suspend or permanently exclude a pupil. The circumstances that may warrant a suspension or permanent exclusion to occur can be found within the section ‘Reasons and recording exclusions’ within the ‘Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England including pupil movement guidance’.

That last reference is to a further Department for Education guidance document (most recently updated in August 2024) which includes the following:

The headteacher’s power to suspend or permanently exclude

This government supports headteachers in using suspension and permanent exclusion as a sanction when warranted as part of creating calm, safe, and supportive environments where both pupils and staff can work in safety and are respected. To achieve this, suspension and permanent exclusion are sometimes a necessary part of a functioning system, where it is accepted that not all pupil behaviour can be amended or remedied by pastoral processes, or consequences within the school.

…

Suspension

A suspension, where a pupil is temporarily removed from the school, is an essential behaviour management tool that should be set out within a school’s behaviour policy. A pupil may be suspended for one or more fixed periods (up to a maximum of 45 school days in a single academic year). A suspension does not have to be for a continuous period.

A suspension may be used to provide a clear signal of what is unacceptable behaviour as part of the school’s behaviour policy and show a pupil that their current behaviour is putting them at risk of permanent exclusion. Where suspensions are becoming a regular occurrence for a pupil, headteachers and schools should consider whether suspension alone is an effective sanction for the pupil and whether additional strategies need to be put in place to address behaviour.

…

Permanent exclusion

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.

The School’s ‘Positive Discipline’ Policy

The School’s ‘Positive Discipline’ Policy (‘the Policy’) deals with both the standards required of pupils’ conduct and the mechanisms staff are required to implement to support those standards. It is highly detailed, and couched in directional and mandatory terms, as to both. Its underlying philosophy is that curriculum delivery and individual academic progress are inextricably linked with, and wholly dependent on, achieving a calm, orderly, respectful and receptive collective learning culture and environment; and that in turn demands the development of self-respect, self-control and socialisation in students.

The conduct standards it sets out cover all aspects of school life: uniform, personal presentation, equipment, personal property, school property and premises, punctuality, refreshments, behaviour in the classroom, behaviour elsewhere on school premises, learning systems and structures, obedience, respect for others and courtesy. It is comprehensive, clear and highly specific, designed to articulate expectations at an explicit and granular level so as to leave the minimum space for ambiguity, equivocation or personalised interpretation. It aims to ensure everyone understands exactly what they are supposed to do, at all times and in all places, and is supported to do it. That provides a level of predictability and security, and a definition of common standards and culture, that is designed, among other things, to leave no room ultimately for individual doubt that compliance is a personal responsibility and non-compliance a personal choice with personal and community consequences.

The Policy provides for the achievement of the conduct standards by prescribing an equivalently specific and granular system of rewards and sanctions. Each student has a ‘planner’ book which must be kept with them at all times, and which records their learning and conduct, and the consequences, in real time.

The individual rewards system is based on the premise that ‘all staff will praise students where appropriate, including contacting parents/carers, as and when they choose to do so. (All written praise must be officially recorded.)’ Rewards are prescribed as a six-stage ascending pyramid, starting with departmental ‘stamps’ for excellent contributions, effort or work, and then with ‘credits’ recorded in the student planner by form tutors or subject teachers. Credits are cumulated over time, with 33 levels of ‘certificates’ being awarded, by way of ascending recognition through the School hierarchy, for totals achieved between 50 and 3000. Largely, but not exclusively, based on credit records, a limited number of students may receive departmental ‘postcard’ commendations, sent direct to their home. The next level up sees students referred individually to a member of the School’s senior leadership team for personal congratulation. At the top of the pyramid is the ‘major awards ceremony’, with prizes for special effort, special achievement, extra-curricular or cross-curricular commitment, attainment and effort in individual subjects, and 100% attendance and punctuality.

The individual sanctions system is based on the premise that ‘for any system to succeed, all staff must rigorously adhere to the established framework’. There are separate, but related, ascending ‘pyramids’ for classroom-based misconduct and for misconduct around the School.

For classroom-based misconduct there is a six-phase scale of disciplinary response. It begins with an informal warning, proceeding to a second warning which will be recorded, and then a third warning which must be recorded and may lead to detention. Phase four is removal from the classroom and temporary placement in another class, together with detention. Phase five is isolation. Phase six is suspension and ultimately permanent exclusion.

The Policy provides that its scheme – standards, rewards and sanctions – is to be embedded in three ways. Implementation of the scheme is mandatory for all school staff. Parents and carers are required and expected to support it. And the scheme is specifically taught to its students. It is expected that for many students arriving in Year 7 this may be an intense process of readjustment from life and expectations at primary school and at home, and may take time and require support. For most students, as they settle in the school and as they mature within its culture, the expectation is that sanctioning will become an increasingly unnecessary and insignificant part of an individual’s experience of school life.

The Policy describes isolation as ‘an extremely serious sanction’. It says this:

Isolation is the most serious in-school sanction a student can receive at John Smeaton Academy. Isolation is issued where a serious breakdown of discipline has occurred or there has been repeated lower-level poor behaviour within lessons or around school. Whilst Isolation is a sanction, it is also an opportunity for a child to receive intensive support and guidance to ensure that they do not repeat the behaviour which led to them being placed in Isolation. Isolation should be a positive experience for young people. This is not the same as saying that they should enjoy being in Isolation, but it should provide young people with the opportunity to reflect on what has taken place and carefully plan for the future.

It also says this:

Isolation operates in an incremental manner: a student’s first period of Isolation in an academic year will be for 1 day. A day will be added for every subsequent period of Isolation, until a maximum of 3 days is reached. Incremental Isolation periods will re-set at the start of each half-term.

The Policy’s ‘Isolation Protocol’ makes detailed provision for how isolation is served. Separate rooms are set aside in the School in which a few (perhaps up to ten) students spend the school day under close supervision by staff specially trained to understand and support students exhibiting challenging behaviour; other members of staff will check in during the day. Students sit, and must remain seated, in workspaces or booths with sides to screen them off from other students. Curriculum-compliant work is provided and must be completed in silence. Breaks are regulated. Over the course of the day each student will be separately withdrawn for at least one pastoral conversation to support insight, wellbeing and the completion of the work set. Scripts are provided to staff for those conversations. Progress during the day is recorded. At no time are students in isolation permitted to socialise with each other.

Failure to attend promptly and complete a day in isolation satisfactorily will result in its needing to be repeated. Misconduct in isolation will result in an escalating system of warnings and interventions. A second warning leads to a repeat day in isolation. A third warning leads to suspension.

About suspension more generally, the Policy says it is reserved for ‘students who persist with unacceptable behaviour or who commit a particularly serious misdemeanour’. On return to School after a period of suspension, a student will automatically serve a three-day period in isolation as part of a ‘re-integration’ process intended to support successful return to the classroom.