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

The unreasonable failure adequately to consider alternative sections.

This was Challenge 3 before the judge and the only Ground of Appeal which affects it is Ground 3, which is the contention that he did not approach it with a heightened standard of review. I shall therefore consider the judge’s decision on Challenge 3 under this Ground.

I have already indicated that the first two readings of the reconsideration identified at [71] above were unduly benevolent and inconsistent with a heightened standard of review, and in my judgment the same is true of the third.

The judge’s approach to this question is at [53] above. I find these paragraphs of his judgment perplexing. The judge says that the GDC at reconsideration referred back to “their previous consideration of alternative sanctions. That reference to alternative sanctions is not based upon the decision which was quashed.” I can find no words in the reconsideration letter which justify this observation.

In any event, it was the way in which alternative sanctions were dealt with at the first hearing which led to the decision being quashed. Their letter says this:-

“However, the panel wished to emphasise that in holding the “ex parte” meeting with the Headteacher, after the family and representative and clerk had left the meeting, there was no dishonesty intended or deliberate non-compliance with suspensions and exclusions policies. The panel believed that they had acted in the best interests of all parties by consulting with the Headteacher to consider whether an alternative sanction equitable to permanent exclusion, existed.”

This is why the IRP quashed the original decision. As Fordham J put it, see [41] above, “In particular, the GDP needed to make sure it was putting right what the IRP had identified having gone wrong the first time.” If in fact they did refer back to their original conclusions on this subject, they were referring back to a flawed process and, instead of putting it right, they simply repeated it.

Further, I note the judge’s observation 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.” I do not see why this is true, but even if it is, in my judgment, it does not address the problem in an acceptable way. Points (11)-(17) in paragraph 3 of the reconsideration letter all relate the to the behaviour log of SAG. At the hearing, it will be recalled, a conclusion had been reached about this in these terms:-

“Governors noted from her behaviour log details that to date she had accumulated 30 points which, while above the school average for 95% of students during their time at Winchmore, was not considered to be excessive or indicative of persistent challenging behaviour. [The Headteacher] commented that [she] had settled in well and had contributed well to the school community and there were no issues noted with her academic record.”

There is no explanation of the change of approach to this question. For the judge simply to accept that these points showed that the GDC was considering alternative sanctions (which involves a consideration of proportionality), when in fact they were principally considering them as an answer to a submission by Mr Mal that SAG was a “model pupil” does not in my judgment involve a heightened intensity of review. I would therefore allow the appeal against the judge’s finding on Challenge 3 on the basis of Ground 3.