Court of Appeal dismisses appeal in permanent exclusion case - what does this mean for your school?

Background and facts

The case of R (on the application of SAG) v the Governing Body of Winchmore School concerned a 14-year-old pupil (SAG), who had been permanently excluded after she entered a teacher’s private room without permission in an attempt to retrieve her confiscated mobile phone. The Headteacher made the decision to permanently exclude SAG for a "serious breach of the school's behaviour policy", for "being in possession of a mobile phone with a sim card" and "being found in a teacher's room without permission".

The Governors' Disciplinary Committee (GDC) declined to reinstate SAG following their review of the Headteacher's decision. Although they were initially inclined not to uphold the exclusion, following private discussions with the Headteacher, they decided to uphold it.

An Independent Review Panel (IRP) quashed the GDC's decision and directed that it reconsider its decision due to procedural impropriety. The GDC did not change its decision on reconsideration, introducing a new allegation that SAG had committed burglary under the Theft Act 1968. SAG sought judicial review of the GDC's decision, which was dismissed by the High Court. SAG consequently appealed to The Court of Appeal on the grounds that the judge erred in finding the GDC's burglary allegation was immaterial and the GDC applied the School's Behaviour Policy.

The Court’s decision

The judgment is helpful to schools in setting out the grounds for a permanent exclusion where the relevant thresholds outlined in school policies conflict.

In this case, the school's Exclusion and Suspension Policy stated that "permanent exclusions would only be used in the case of a serious incident in order to maintain a safe and secure learning environment, enjoyed by all members of the school and local community." Its Behaviour Policy however required a one-off incident to be "extremely serious" to justify permanent exclusion. The Behaviour Policy therefore provided a higher threshold than the grounds for a permanent exclusion as set out at paragraph 11 of the Department for Education's Statutory Suspensions and Exclusions Guidance which states the decision to exclude a pupil permanently should only be taken:

• In response to a serious breach or persistent breaches of the school's behaviour policy
• Where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school.

SAG argued that the Behaviour Policy imposed a more elevated threshold for a permanent exclusion which the GDC had been required to apply and her conduct was "serious" but "not extremely serious" as required by the Behaviour Policy for permanent exclusion. 

The Court, by majority, found that the exclusion was lawful and dismissed the appeal. The majority found that the relevant policy in this case was the School's Exclusion and Suspension policy and and that the GDC had applied the correct test set out in it (which required "serious" misconduct) and not that in the Behaviour policy (which required "extremely serious misconduct"), despite the Headteacher's decision letter referring to the Behaviour policy. 

As Winchmore School is a community school (and therefore local authority maintained) the Education and Inspections Act 2006, s88 and s89 make it clear that discipline is the responsibility of the governors and behaviour the responsibility of the Headteacher. Therefore in formulating the Behaviour policy, the Headteacher could not lawfully depart from the Exclusion and Suspension policy which reflected the two limb test for permanent exclusion set out in paragraph 11 of the Statutory Guidance.

As a result, the GDC had correctly applied the appropriate threshold for exclusion.

The majority also found that despite the GDC's reference to committing burglary was intended to add something substantive to their reasoning about the risk SAG posed to others, and that her reinstatement would have an impact on the safe and secure learning environment, it did not make the decision unlawful. The Court accepted that the High Court's finding that it was "highly likely" that the outcome would not have been substantially different without this error.

Key takeaways for schools 

Some key takeaways from the judgment are the need to establish:

• Consistent Policies

The judgment emphasises the need for schools to have consistent policies in place, which do not set out different tests for behaviour and exclusions. This is to ensure that policies do not cause confusion among staff, governors, pupils and parents, and any conflicting procedures do not lead to legal challenges. The dissenting opinion of Lord Judge Edis in this case is significant (whilst it was the minority view) as they would have allowed the appeal partly based on the policy issues. 

The school in this case was however a maintained school and this finding may have been different if the school was an academy, due to the different legislative framework that applies in the context of school behaviour set out in the Educations and Inspections Act 2006. In any case, consistent procedures in school policies are essential.

• Clear Justification for Decisions

Any exclusion decision and review must be accompanied by clear reasons that demonstrate how both statutory guidance and school policies have been applied. This is vital for ensuring transparency and protecting the integrity of the decision-making process.

This case also highlights the need for exclusion notification letters to parents which clearly set out the grounds and reasons for the Headteacher's decision to exclude and the relevant school policies that apply. In this case the reasons given were brief and although they referred to the Behaviour Policy, the misconduct was described as "serious" and not "extremely serious".

• Clear Grounds for a Permanent Exclusion 

The Court of Appeal’s decision reinforces the principle that governing bodies and Headteachers are granted significant discretion in making exclusion decisions, but it also underscores the importance of applying this discretion within the relevant legal framework that applies.

How can we help? 

Our team of Education lawyers can assist you at any stage of the statutory exclusions process. We also provide bespoke exclusions training and can support schools by reviewing their suites of behaviour policies, in addition to having template exclusions and behaviour policies available to purchase.

You may also find our recent article on Suspensions and permanent exclusions: Top tips for the statutory exclusions process useful to help schools navigate the statutory exclusions process.

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For more information or advice, please contact our Academies and Maintained Schools team.