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

The panel's consideration of procedural impropriety

The school admitted in evidence that a discussion took place between the Headteacher and the governors in which proposals for sanctions to sit alongside readmission were raised. Details of this discussion were included within the minutes of the governing body's decision meeting. Neither the parents, nor their representatives, were in attendance for that discussion. The parties agreed that this was an ex parte discussion, i.e. a discussion that involved solely one interested party and the decision-making body.

That discussion took place in the Headteacher's office immediately after the parents left the governor's body's decision meeting. [they then set out part of the minute quoted above].

In both evidence and submissions, the school suggested that these were not important parts of the matters to be determined, and that the practicalities of the potential sanctions were all that was discussed at that meeting. The panel did not agree.

The deliberations set out …. above are comments that relate to the proportionality of the exclusion decision, i.e. whether a less severe sanction could be put in place in order to avoid exclusion. That is a core part of the statutory regime, and the panel considers that [SAG] ought to have been present for such discussions. Her presence in those conversations could have, as was submitted on her behalf before the panel, led to alternative proposals for sanctions emerging beyond those produced by the Headteacher in what the school described as a "short" "3-4 minute discussion".

The school submitted that this was not part of the governor's decision meeting due to several reasons, including the subject matter of the discussion and its location.

The panel found difficultly in formally separating the discussion with the Headteacher from the other parts of the governors’ decision meeting for the following reasons:

The discussion is included within the governors’ committee meeting minutes;

The minutes record this as taking place before the end of the governors' final deliberations;

The record of the discussion with the Headteacher is sandwiched between 2 noted minutes of times at which the meeting supposedly ended, and,

The meeting was said to have happened shortly after the other "substantive" parts of the governor's decision meeting, and before later deliberations.

For the reasons set out at paragraph 10 above, the panel found that the discussion with the Headteacher constituted part of the governors’ decision meeting. It was thus a "meeting" for the purposes of the Exclusion Guidance. That means that the requirements in paragraphs 104 and 123 apply; [SAG] ought to have been "invited" to and "allowed to make representations" at this further discussion. The Headteacher should never have been present discussing matters in the appeal without her present and should have had no further involvement until the panel made its decision.

The panel found that the minutes showed a change in the consensus of the governing body immediately after their discussions with the Headteacher.

The governors seemed to arrive at an initial view before the discussion that expulsion would not be proportionate. [The IRP then set out extracts of the minute to show why this is so].

The governors then come to the view that "no alternative sanction" "would allow the student to stay". It is stated that this would "set a very dangerous precedent" and that the "breakdown in trust between the school and was so significant that the statutory test was met.

Similar to the analysis set out above, the panel found on the balance of probabilities that the discussion did affect the governors' view of the matters to be considered in reviewing the exclusion.

Finally, it was submitted on behalf of the school that the existence of minor procedural flaws will not be sufficient to render a decision unlawful. That is correct in law; there must be something which is so flawed which renders the outcome unjust in order to quash a decision.

The panel considers the procedural flaws discussed above to go to the heart of what natural justice entails. The integrity of the decision has been impeached by the discussions of elements of the statutory test taking place without [SAG] .The panel found that [SAG] might have affected the governing body's conclusions had she or her advocate been present. For these reasons the panel quashes and directs that the school reconsiders the decision.