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

The judge’s judgment

The judge set out the “Legal Framework” which applies. This is familiar territory and has been explained in TZA, referred to at paragraph 2 above, and it is not necessary to recite it all in this judgment. The 2002 Act (by s51A) vests the power of permanent exclusion of a pupil of a maintained school in the headteacher. The 2012 Regulations made under the 2002 Act establish the process which was being followed in this case and regulation 9 requires all relevant decision-makers to have regard to the Guidance.

The judge observed that Underhill LJ in TZA referred to Sedley LJ’s judgment in R v. Governing Body of Dunraven School ex parte B[2000] LGR 494 at page 498d-e in which it had been said that the discipline committee of a governing body is not a tribunal of appeal from the headteacher but part of a single decision-making process. Underhill LJ said (at paragraph 72) that it was wrong to regard the role of the governors’ panel as being simply to review the decision of the headteacher for legality and rationality. The judge also quoted a passage in TZA at [92] about the extent to which a GDC on reconsidering a decision following a decision by the IRP should give reasons. This passage seems to me to be an application of established law to the specific facts of that case. In any event, the challenge in this case is not to the reasons given for the decision but to its reasonableness.

The judge relied on a decision of Fordham J in R (RWU) v A Governing Body of A Academy[2024] EWHC 2828 (Admin) (“RWU”) who explained the process of reconsideration following quashing by the IRP as follows:-

“[69] ……..The quashing by the IRP of the GDP’s original non-reinstatement decision meant that the decision had been set aside and did not in law subsist as a lawful discharge of the GDP’s statutory decision-making function. It meant that there needed to be a reconsideration “afresh”. The GDP would be reconsidering – afresh – whether the Principal’s PEX decision was lawful, reasonable and procedurally fair. In the present case, there did not need to be a rehearing of all the evidence ‘de novo’, and there did not need to be a panel of three new individuals…….. Where there is a quashing, after a decision applying judicial review principles, what matters is for the GDP “to look afresh at the question of reinstating the pupil, in light of the findings of the IRP”, which is how the Guidance puts it (§264). What quashing does is to require reconsideration afresh.”

“[74] …….The GDP was not reconsidering afresh the Principal’s decision to impose PEX. It was reconsidering afresh the lawfulness, reasonableness and procedural fairness of the Principal’s decision. In particular, the GDP needed to make sure it was putting right what the IRP had identified having gone wrong the first time.”

The judge then considered submissions which had been made to him about the appropriate standard of review in a case of this kind, involving permanent exclusion of a child from a school. He cited Fordham J in RWU at paragraph 57 who said:-

“I accept that the context and circumstances, the questions about safeguarding and vulnerability, the importance of education and the protective environment of education and school, are all factors which point in favour of a relatively exacting intensity of review. What I accept is that, without changing the applicable legal principles, the impact and implications for the pupil facing PEX does tend to increase the scrutiny which the judicial review Court will bring to bear. I also think it tends to qualify the breadth of the “benevolence” with which the court will read a reasoned decision. Finally, I think it does tend to heighten the caution with which the court already approaches Retro-Reasons. When “anxious scrutiny” was first introduced at common law in human rights cases, it had a lot to do with the scrutiny of reasons: see R v SSHD, ex p Bugdaycay [1987] AC 514, 534A and R v SSHD, ex p Brind [1991] 1 AC 696, 757B-C. The implications of PEX for the Claimant were and are highly significant.”

Chamberlain J, in a case not involving education, gave an analysis of the nature of rationality review and the relevance of the standard of review which is, to my mind, compelling. In R (KP) v. Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin) (“KP”) at paragraphs 56 and 57 he described elements of ‘unreasonableness’ as “process rationality” and “outcome rationality”.

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] 1 WLR 1649, [98] (Leggatt LJ and Carr J).

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 1, [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].

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 KB 223, 233-4) or, in simpler 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..”

Chamberlain J then went on to consider the standard of review, and to examine the phrase “anxious scrutiny”. The phrase perhaps implies that there may be some cases where it is not necessary for the judge to scrutinise an issue anxiously, which may imply that there may be some judicial tasks which can be undertaken lightly. This is, of course, not what it means. Chamberlain J said this:-

In R (YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448, Carnwath LJ (with whom Moore-Bick and Etherton LJJ agreed) said at [23] that the term “anxious scrutiny” had gained a “formulaic significance”. At [24], he continued as follows:

“…the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind indeed, one which might be thought an ‘axiomatic’ part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.”

Since then, it has been said often that rationality is a flexible standard. In R v Department for Education and Employment ex p. Begbie [2000] 1 WLR 1115, 1130, Laws LJ (with whose reasons Sedley LJ agreed) said that the Wednesbury principle was itself “a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake”. In Kennedy v Charity Commission [2014] UKSC 20, [2015] AC 455, Lord Mance (with whom Lord Neuberger and Lord Clarke agreed) suggested at [55]-[56] that in some cases there may be no difference between rationality review and “European” (i.e. proportionality-based) review. And in Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, Lord Sumption (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) said this at [107]:

“The differences between proportionality at common law and the principle applied under the Convention were considered by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 27-28. In a passage with which the rest of the House of Lords associated itself, he identified three main differences: (i) a proportionality test may require the court to form its own view of the balance which the decision-maker has struck, not just decide whether it is within the range of rational balances that might be struck; (ii) the proportionality test may require attention to be directed to the relative weight accorded to competing interests and considerations; and (iii) even heightened scrutiny at common law is not necessarily enough to protect human rights. The first two distinctions are really making the same point in different ways: balance is a matter for the decision-maker, short of the extreme cases posited in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But it may be questioned whether it is as simple as this. It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome.”

This analysis does not depend on whether the context includes Convention rights. In KP Chamberlain J analysed the authorities and said this, in a passage with which I agree:-

First, the court’s approach to assessing the rationality of a decision varies depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences. In this connection, it is not necessary to identify a “right” impacted by the challenged decision. It is true that, in Bugdaycay itself, Lord Bridge made reference at 531 to the “right to life”, but what made a “more rigorous examination” appropriate was not the existence of such a right but rather “the gravity of the consequences” flowing from the challenged decision – i.e. the fact that the decision was said to have put the claimant’s life at risk. This is consistent with the formulations used by Laws LJ in Begbie (“the nature and gravity of what is at stake”) and by Lord Reed in King (“the nature of any interests engaged and the gravity of any adverse effects on those interests”). The interests in question may be such as to ground a right properly so-called (as in ex p. Smith and Pham), but not necessarily. In many of the situations in which the heightened standard of review applies, the claimant will have no prior right, whether under statute or at common law, to the benefit which the decision denies him.”

Having considered these decisions, the judge decided that a heightened intensity of review was appropriate in this case, but he also held, in respect of each of his decisions, that they would have been the same even if he had accorded greater deference (benevolence) to the decision-makers.

The judge granted permission to apply for judicial review but dismissed the challenge in all three cases. He identified the proper approach for the GDC as follows:-

The effect of the IRP’s decision to quash was that the non-reinstatement decision had been set aside and did not in law subsist as a lawful discharge of the Governors’ Panel decision making function. At the re-consideration stage the Defendant was required to consider afresh whether the Headteacher’s decision to permanently exclude the Claimant was lawful, reasonable, and procedurally fair (applying the approach set out in paragraph 124 of the Statutory Guidance). Applying that guidance does not mean that the Governors’ Panel was simply to review the decision of the Headteacher for legality and rationality. The object of the procedures, taken together is to allow the governors to make a decision for themselves (TZAat paragraph 72).

At the reconsideration stage the Governors’ Panel needed to make sure that it was putting right what the IRP had identified as going wrong at the reinstatement decision stage.”

As to Challenge 1, to the finding that the Claimant’s conduct amounted to a sufficiently serious breach of the school’s behaviour policy to impose a permanent exclusion, the judge correctly recorded that the decision letter of 8 April 2025 suggests that this question was not addressed at the reconsideration stage. Paragraph 3(1) of the letter, quoted above, says that the criteria for the first limb were “not disputed”. This, on its face, appears to be an error, because they were disputed. The criteria for Limb 1 in the Guidance require a “serious breach of the school’s behaviour policy”. The Behaviour Policy itself requires an “extremely serious breach”. I have recorded at [25] above the submission on this subject made by the advocate on 3 March 2025 and the same was also submitted by Mr Mal in his lengthy written submissions for the IRP which the IRP invited the GHDC to consider. The judge said:-

“52……In my judgment, reading the minutes fairly and whole, and applying an intense degree of scrutiny, the reference to the criteria for the first limb not being disputed must be understood as meaning that the facts which formed the basis for the finding on the first limb were not in dispute.”

Considering the process as a whole in my judgment the Governors’ Panel’s reconsideration decision cannot properly be described as irrational or unreasonable. The Headteacher’s exclusion letter sets out a clear conclusion on limb 1. The Governors’ Panel set out their reasons for finding that limb 2 was made out. Taking account of the fact that all stages of the process form part of a single decision making process, and of the fact that a decision on whether a breach of the School’s Behaviour policy was serious is one of evaluative judgment, it cannot properly be said that the decision was irrational or unreasonable in the Wednesbury sense.

I have come to that conclusion applying a high intensity of review of the decision making process. If a more benevolent approach were to be taken to the exclusion letter and to the minutes of the Governors’ Panel when making their reconsideration decision, the same conclusion would be reached.

Challenge 2, to the finding that SAG remaining in the school would “seriously harm” the education welfare of the pupil or others such as staff or pupils in the school, relied heavily on criticisms of the factors identified in paragraph 3(7) and (10) of the reconsideration letter. The GDC, it is accepted, made an error of law in deciding that SAG had committed an offence of burglary in entering the teacher’s room as a trespasser because she did not intend to steal anyone else’s property but to recover her own. The finding at 3(10) that this conduct made others vulnerable and concerned about their personal property is said to be speculative.

The judge said this about Challenge 2:-

The minutes of the meeting of the Governors’ Panel held on 8^thApril 2025 record that the panel responded to the IRP’s advice that they should set out the factors relevant to limb (ii) of the exclusion test. Those factors are set out in seventeen bullet points under the first paragraph 3. In my judgment it is clear that, at the reconsideration stage, the Governors’ Panel focussed on putting right what the IRP had identified as going wrong at the reinstatement decision stage.

………

Whether limb (ii) was satisfied was a matter of evaluative judgment for the school as part of the single decision making process. The IRP advised that the Governors’ Panel making the reconsideration decision should set out the factors that it considered to be present under limb (ii). The Governors’ Panel followed that advice and set out those factors in the seventeen bullet points. The minutes of the Governors’ Panel meeting have to be considered as a whole and read fairly. Taking that approach, and applying a high intensity of review, I come to the following conclusions: 61. Whether limb (ii) was satisfied was a matter of evaluative judgment for the school as part of the single decision making process. The IRP advised that the Governors’ Panel making the reconsideration decision should set out the factors that it considered to be present under limb (ii). The Governors’ Panel followed that advice and set out those factors in the seventeen bullet points. The minutes of the Governors’ Panel meeting have to be considered as a whole and read fairly. Taking that approach, and applying a high intensity of review, I come to the following conclusions:

The statements in the seventh bullet point are based upon the undisputed fact that the Claimant was found in a teacher’s room without permission. That is the essence of the point being made in that bullet point. The description of those facts as amounting to burglary is erroneous (as, in particular, the Claimant was seeking to retrieve her own property). However the fact that the Claimant was found in a teacher’s room without permission was material. The reference to burglary did not add to the central point that that the Claimant was in a teacher’s room without permission (as identified by the Headteacher in the letter dated 5th February 2025), was not decisive, and did not have a material impact on the reasoning.

The statement in the tenth bullet point that if the Claimant were to return to school there would be an impact on other students and their concerns about feeling safe and the vulnerability of their personal property was based upon the evaluative judgment of the governors. Given the undisputed fact that the Claimant had entered a teacher’s room without permission in order to search for property (albeit her own) it cannot be said that reasoning is speculative. The reasoning consists of a judgment based upon undisputed facts. Similarly, in relation to teachers feeling let down and vulnerable; that reasoning was based upon undisputed facts. An exception to the general rule prohibiting mobile phones was made for the Claimant subject to the condition that no SIM card was inserted. The Claimant breached that condition. The teacher’s room was entered without permission. Based upon those undisputed facts the judgment that teachers felt let down and vulnerable cannot be said to irrational.

Mr Persey was asked to identify the break in the chain of logic on which he relied. He did not identify such a break or leap in the chain of logic.

The seventeen bullet points combined lead to the finding that allowing the Claimant to remain in the School would seriously harm students, staff and the wider school community, and that the second limb was satisfied. That was a matter of judgment for the Governors.

Reading the minutes as a whole, as part of the overall decision school decision making process, the evaluative judgments reached cannot be said to be irrational or unreasonable.

I have come to those conclusions applying a high intensity of review of the decision making process. If a more benevolent approach were to be taken to the exclusion letter and to the minutes of the Governors’ Panel when making their reconsideration decision, the same conclusion would be reached.”

The judge then said that if it were held that the reference to burglary did involve an error of law then it made no difference and applied section 31(2A) of the Supreme Court Act 1981. There was no evidence about this, or any other aspect of the way in which paragraph 3(7) came to be part of the decision or what the GDC had thought about it, or why they said it, or what they thought it meant. The judge said he didn’t need evidence and reached the conclusions just recited.

The judge then dealt with Challenge 3, the suggested failure to deal rationally with alternative sanctions falling short of permanent exclusion which was therefore not treated as a last resort, the judge said:-

Notwithstanding the fact that the decision at the reinstatement decision stage had been quashed, the panel at the reconsideration decision stage referred back to their previous consideration of alternative sanctions. That reference to alternative sanctions is not based upon the decision which was quashed. In addition, I accept the submission made by Mr Greatorex that it is implicit from the fact that the panel considered the Claimant’s behaviour log at their 8^thApril 2025 meeting, that they were again considering alternative sanctions. As a result, for either or both of those reasons, it is clear that the panel did consider alternative sanctions and the factual premise on which this ground is based is not made out.”

I have come to that conclusion applying a high intensity of review of the decision making process. If a more benevolent approach were to be taken to the exclusion letter and to the minutes of the Governors’ Panel when making their reconsideration decision, the same conclusion would be reached.”