Key takeaways
Right to a SEN expert can be waived
If the family gives informed consent to proceed without an expert.
IRP and GDP decisions require robust consideration
Panels must show clear, reasoned analysis and meetings shouldn’t just be considered a formality.
Courts remain reluctant to impose their own views on the merits of a decision
Decisions should be left to the designated decision makers unless there are significant public law errors in the process or outcome.
Hill Dickinson LLP’s Education team is pleased to have secured a significant ruling for its client, referred to in these proceedings as HS Academy Trust (the MAT), in two judicial review proceedings brought against it and an Independent Review Panel by two former pupils.
In the judgment, the High Court considered three issues arising from two consolidated judicial claims following permanent exclusions for a serious assault which included;
Whether the MAT acted unlawfully by failing to secure a SEN expert’s attendance where one had been requested;
Whether the IRP’s decision not to quash the governing body’s decision was irrational; and
Whether the IRP misapplied the Equality Act 2010 by stating that the pupil had no protected characteristic.
In this article, we consider some of the arguments raised in this case and highlight some of the key takeaways for academy trusts, Independent Review Panels and governing bodies.
Background
The claims arose from an incident which took place in October 2024. PZP, STW and two other pupils committed a violent assault against their fellow pupil, Pupil X. X was hit from behind and the assailants were heard using racist language at least four times over the course of a minute. Pupil X sustained significant physical injuries and later mental health deterioration.
Following the assault, both PZP and STW were suspended for a period of five days, and subsequently permanently excluded for committing a racially motivated assault, once the racist language used became known to the school. Both pupils challenged the exclusions first at a review led by a Governor’s Disciplinary Panel (GDP) and then later by an Independent Review Panel (IRP).
PZP’s family had requested a SEN expert for his IRP hearing in light of PZP’s dyslexia. Due to an administrative oversight from the MAT, no expert was present. The IRP and clerk offered the family the opportunity to adjourn so that a SEN expert’s attendance might be secured, but the family chose to proceed in the absence of the SEN expert.
In PZP’s case, the IRP recommended that the GDP reconsidered their decision in light of concerns they had about that GDP decision. The IRP did not go as far as quashing the decision and directing the GDP to reconsider. Upon reconsideration, the GDP opted to uphold the permanent exclusion.
In STW’s case, the IRP upheld the GDP decision, and so no reconsideration took place.
Ground 1 – an alleged unlawful failure to appoint a SEN expert at the IRP hearing in PZP’s claim
PZP asserted that the MAT was under an absolute duty to appoint a SEN expert to attend the review hearing under regulation 25(1)(a) of the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012. This was resisted by the MAT on the basis that the right to a SEN expert was capable of waiver, and that PZP’s family had done so in this case. The family were put under no pressure to proceed once the SEN expert’s absence became known, and they had been given every opportunity to adjourn to allow for a SEN expert to attend had they wished to do so.
The Court dismissed this ground. In assessing the evidence, the Court were satisfied that the evidence supported the fact that there was no pressure put on the family to proceed, and that there was clear and consistent communication from MAT personal and the clerk to the IRP about their right to adjourn.
The Court also rejected arguments that, as litigants in person, PZP’s family decision to proceed was materially uninformed because they would not have been aware of the full consequences of going ahead without the assistance of an SEN expert. The Court felt this argument did a disservice to the family’s understanding of the points they wished to press and, in particular, their obvious understanding of the relevance of the SEN expert advice that they had sought to obtain.
This was a welcome outcome for the MAT, which felt it could have done little more to accommodate PZP’s family once it became apparent that a SEN expert had not been appointed due to an honest administrative oversight.
Ground 2 – alleged irrationality by the IRP in PZP’s claim
In PZP’s case, the IRP had significant concerns about the GDP’s reasoning in deciding to uphold the permanent exclusion. It recommended that the GDP reconsider its decision. However, it did not go as far as quashing the decision and directing the GDP to reconsider.
PZP asserted that the criteria for quashing were met in this case, i.e. that the IRP had identified public law errors, and so the default position is that the decision should be quashed per 208 and 229 of the School suspensions and permanent exclusions guidance. However, the IRP failed to take that decision or explain why they did not so. In short, it was PZP’s position that these failures were enough to deem the IRP’s decision irrational.
The Court did accept that there was a lack of reasoned explanation as to why the GDP had decided to recommend reconsideration rather than quash in these circumstances. The Court therefore agreed with PZP that the IRP’s decision was irrational.
However, applying s.31(2A) of the Senior Courts Act 1981, the ground still failed as the Court determined that it was highly likely that there would be no substantial difference in the outcome if the legal error had not occurred. In applying s. 31(2A), the Court gave due consideration to the fact that the GDP had, during its reconsideration, given a clear and adequately reasoned answer to each of the points identified by the IRP. It was satisfied that the nature of the GDP’s reconsideration would have been the same had it been held following a direction or a recommendation.
This decision underlines that reconsideration hearings are not a tick box exercise whereby the IRP decision is rubber stamped. They require robust and diligent consideration of the issues raised, and a strongly reasoned reconsideration was enough in this case to cure the failures of the IRP in reaching its decision to recommend reconsideration.
Ground 3 – the alleged misapplication of s.149 of the Equality Act 2010 in STW’s claim
Section 149 of the Equality Act 2010 (the Equality Act) sets out the Public Sector Equality Duty (PSED). These are the factors that a public authority must have regard to when discharging its functions. It requires public authorities, including schools and academies, to have due regard to three aims;
Eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act;
Advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
Fostering good relations between persons who share a relevant protected characteristic and persons who do not share it.
In STW’s case the IRP mistakenly recorded that STW had no protected characteristics under the Equality Act when making its decision to uphold the permanent exclusion. This was against a background where STW contended that there were previous incidents of bullying against him by Pupil X prior to the incident of October 2024. These incidents had not been reported to the school or police prior to the October 2024 incident.
STW asserted that the IRP’s failure to identify his particular protected characteristic (one of which being race, being material due to the racially aggravated element of the assault) demonstrated a failure to adequately consider the PSED. In addition, had the IRP correctly identified that STW had a protected characteristic, they may have concluded that the previous bullying of STW was relevant to the October 2024 incident. Accordingly, the decision of STW’s IRP should be quashed.
Whilst the Court did acknowledge that there had been an error in failing to identify that STW had protected characteristics, it was not satisfied that this was a material error in the IRP’s decision making for a number of reasons.
For one, STW had invited the Court to accept that the alleged previous bullying took place, which had not been established by the school, GDP or IRP. The Court referred to the recent case of The King (SAG) -v- Governing Body of Winchmore School [2025] and again here demonstrated the Court’s reluctance to substitute their own views of the merits of a decision for those of the responsible decision-maker.
In addition, the Court affirmed that while PSED had limited relevance to individual and fact-specific cases anyway, relevant factors were considered at each stage of the decision-making process in this case. It was deemed unduly formalistic to read the IRP’s decision in isolation from the headteacher’s decision and the GDP’s conclusions which considered matters relevant to the PSED.
This case is further indication of the Court’s reluctance to impose excessively high standards on GDPs and IRPs. The Court does not expect that the lay people who constitute these panels will have the same level of understanding of the Equality Act that trained lawyers and judges would.
What does this judgment mean for academy trusts and schools?
The judgment provides welcome clarification about the administration of exclusion processes. Of particular note to academies, schools and governances professionals will be the following;
While the starting position is that a SEND expert must attend if requested, the right is capable of waiver provided that families are doing so on a fully informed and voluntary basis;
GDP reconsideration hearings are not just a tick box exercise. They require robust and diligent consideration of the issues raised; and
Courts remain reluctant to substitute their own views on the merits of a decision for those of the responsible decision-maker, and reluctant to impose overly legalistic standards on lay individuals making up GDPs and IRPs.
Hill Dickinson’s Education services
We are well placed to advise education clients on any aspects arising from exclusions or judicial review, whether helping you defend or bring a claim, or assisting with any ad hoc queries that may come up along the way.
As education specialists, we can help you navigate those parts of the regime that apply differently to schools.
Beyond judicial reviews and exclusions, we offer a full service to our education sector clients, whether you require advice on a transactional or commercial project, such as a school transfer, contract review, negotiation or settlement, or on day-to-day pupil, parent and staffing matters.
This article was co-authored by Trainee Solicitor, India Hall.
