CA-2025-002133 - [2025] EWCA Civ 1335

Ground 3: the standard of review

In my judgment the significance of the standard of review is that it affects the way in which the court will defer to the expert judgment of the decision-maker to whom Parliament, by statute, has entrusted these decisions. It affects the “benevolence” with which the court will read the reasons given in decision letters. The more significant the issue the narrower the scope of the deference and benevolence. There remains, in all cases, a requirement that the court does not merely substitute its own judgment for that of the decision-maker, and that the court will respect a decision between options reasonably open to that decision-maker. The court, in cases where the standard of review is heightened, will however scrutinise with particular care whether a suggested option is properly within the range open to the reasonable decision-maker. Sometimes, that range may only include one option, see Lord Sumption in Pham, cited above. Mr Persey submits that this was the case here, in that he says that the only reasonable course properly open to the GDC was to order SAG’s reinstatement.

The present case was not a case where Convention rights were engaged, but it was a case where the potential adverse consequences of permanent exclusion to the life chances of a 14 year old child were highly significant. I have expressed agreement with Chamberlain J at [44] above that the circumstances in which a heightened standard of review is appropriate are not limited to those where a Convention right is engaged. Like Fordham J, quoted at [37] above, I would accept that permanent exclusion cases should attract a “relatively exacting standard of review” and that this qualifies the “benevolence” with which a court should read a reasoned decision and the weight which might be afforded to what he called “retro-reasons”.

I accept that the decision-makers here are the Headteacher and the Governors of the school, subject to limited oversight by the IRP. I also accept that the court should hesitate to become involved in decision-making of this kind where expertise and knowledge of local conditions in the school will be of significance. Further, I accept that the court should not create a climate where every decision involves a process in which lawyers are involved on all sides, and creating documents which can withstand legal scrutiny. This is a school which needs to be able to function as such. This does not entitle the court to abrogate its function of ensuring lawfulness (which includes fairness) in an important aspect of the life of the community and its youngest members. A balance is required and in my judgment the judge has simply failed to strike that balance correctly. In each case, he has identified that an “evaluative decision” was involved and, in substance, stopped there. I would add that his readings of the reconsideration reasons document are unsustainable and in some respects fail to give effect to the plain words which were used.

In my judgment the conclusions to which I have come do not involve imposing unreal and overly legalistic procedures or other obligations on the school. It boils down to the principle that they should have regard to the Guidance, as is their statutory duty, and to their own policies for which they are responsible. These documents should be applied fairly and in accordance with the facts of the case, and a decision should be produced with reasons which explain in plain and succinct language how it has been reached and how the Guidance and policies have been applied. That is surely a standard which it is reasonable to expect when taking decisions of this kind which have the potential to change lives. It is, in any event, a standard which the law requires.

The court does not have to consider in this case any evidence from the GDC to expand or explain their written reasons. They have not supplied any. The reasons in the reconsideration letter of 8 April 2025 therefore stand on their own.

In three important respects, the judge read that document in ways which I consider involve impermissible re-writing of it. This is so whether the court approaches the document with benevolence or in a less forgiving way.

These respects are:-

His explanation of the assertion that the seriousness of the conduct was not in dispute. The GDC did not deal any further in their reconsideration with that issue, and this can only be because they thought (wrongly) that it was not in dispute. The fact that the facts were not in dispute did not mean that they did not have to evaluate the seriousness of the conduct, and their failure to do so supports the submission that their words should be understood to mean what they say.

His explanation of the reference to burglary in the reconsideration decision (challenged in Ground 1). I shall deal with this further below.

His explanation of the approach taken on reconsideration to the adequacy of “alternative sanctions”, which was the subject of Challenge 3 before the judge.