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

Introduction

The statutory provisions governing the power of a headteacher to exclude a pupil permanently from a school and the duty of the school’s governing body to consider reinstatement have been recently and authoritatively examined by this court in R (oao TZA) v a Secondary School [2025] EWCA Civ 200 (“TZA”). This case does not require any revision or development of that analysis.

The legislative provisions governing school exclusions are to be found in section 51A of the Education Act 2002 (“the 2002 Act”) and in the School Discipline (Pupil Exclusions) (England) Regulations 2012 (“the 2012 Regulations”), which are made under powers conferred by three different statutes. Those powers include sections 51A(3), (5), (6), (7), (8), (9), (10), and (12) the 2002 Act. Section 51A(8)(b) of the 2002 Act enables regulations to require a person or body exercising functions under section 51A(1) or (2) “to have regard to any guidance given from time to time by the Secretary of State”. Regulation 9 of the 2012 Regulations requires the head teacher and the governing body (among others) to have regard, when exercising their functions under section 51A(1) of the 2002 Act or under the 2012 Regulations, to “any guidance given from time to time by the Secretary of State”. The guidance in force at the time of SAG’s exclusion was called “Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement. Guidance for maintained schools, academies, and pupil referral units in England”, published August 2024("the Guidance").

Section 88 of the Education and Inspections Act 2006 (“the 2006 Act”) is headed “Responsibility of governing body for discipline”. Section 88(1) requires the governing body to “ensure that policies designed to promote good behaviour and discipline on the part of pupils are pursued at the school”. Section 88(2)(a) requires the governing body “in particular” to make, and from time to time to review, a written statement of general principles to which the head teacher is to have regard in determining any “measures under section 89(1)”. The governing body must consult those listed in section 88(3) before making any statement required by section 88(2)(a). That list includes the head teacher. Section 88(2)(b) requires the governing body “where they consider it desirable that any particular measure should be so determined by the head teacher or that he should have regard to any particular matters” to notify him of those matters, and enables the governing body to give him guidance about those matters. In exercising their functions under section 88(2), the governing body must have regard to any guidance given from time to time by the Secretary of State (section 88(4)).

Section 89 of the 2006 Act is headed “Determination by the head teacher of behaviour policy”. Section 89(1) requires the head teacher to “determine measures to be taken with a view” to promoting the behavioural objectives listed in section 89(1). In determining such measures, section 89(2) of the 2006 Act requires the head teacher to “act in accordance with” (and not merely to “have regard to”) the “current statement made by the governing body under section 88(2)(a), and “to have regard to” any notification or guidance given to him under section 88(2)(b).

The formal steps in SAG's exclusion can be summarised as follows:

The exclusion decision. By letter dated 5 February 2025 ("the exclusion letter") the Headteacher of the School notified the Claimant of his decision to exclude SAG permanently with immediate effect. The reasons were given as:-

“[SAG] has been excluded in response to a serious breach of the school's behaviour policy:

In possession of a mobile phone with a sim card on a school trip.

Being found in a teachers room without permission, trying to retrieve a phone.”

The first GDC decision. The effect of regulations 5-6 is that in the case of a permanent exclusion the governors are required to consider whether the pupil should be reinstated. This occurred at a meeting on 3 March 2025 and resulted in a letter to SAG’s mother dated the 6 March 2025 which said:-

“The panel agreed with the school's case that the incident on the skiing trip on 23'ª January 2025, involving entering a teacher's room without permission in an attempt to retrieve her confiscated phone, represented such a serious breach of trust that to allow her to return to school would not be possible”.

The independent review. Regulation 7 provides for the establishment of an independent review panel established by the local authority ("an IRP"), which may uphold a decision by the governors not to reinstate a permanently excluded pupil or recommend that they reconsider it or quash it and direct a reconsideration. SAG applied for the GDC's decision to be reviewed, and an IRP held a hearing on 26 March 2025. By a decision dated 31 March it quashed the GDC's decision and directed the GDC to reconsider reinstatement.

The GDC's reconsideration. The GDC reconvened on 8 April 2025 in order to reconsider SAG's exclusion in accordance with the IRP's direction. It decided to confirm its original decision by letter of 23 April. The challenge in these proceedings is only to the GDC's reconsideration decision, but the earlier stages in the process are material. It will be necessary to say a little more about them.

The Guidance and the School Policy

Selected parts of the Guidance are in these terms:-