www.localgovernmentlawyer.co.uk Open in urlscan Pro
92.205.61.226  Public Scan

Form analysis
0 forms found in the DOM

Text Content

Cookies
Cookies used on the website This website uses cookies to ensure you get the best
experience on our website.Cookies Privacy policy
DeclineAllow cookies
Cookies
Functional
Statistics and Marketing

≡Open menu
 * Jobs
 * Courses and Events
 * Books
 * Directory
 * Sharpe Edge
 * The Legal Department of the Future
 * Life After Lockdown
 * Write for us

≡Open menu
 * Home
 * News
 * Careers
 * Features
 * Marketplace
 * Newsletter
 * Research
 * Webinars
 * Advertise
 * Search

   ≡
   Open menu
   
 * Adult Social Care
 * Child Protection
 * Community Safety
 * Education Law
 * Employment
 * Environment
 * Governance
 * Healthcare Law
 * Housing Law
 * Information Law
 * Licensing
 * Litigation and Enforcement
 * Planning
 * Procurement and Contracts
 * Projects and Regeneration
 * Property
 * Regulatory
 * Transport and Highways
 * Wales
 * 






HomeNewsCareersFeaturesMarketplaceNewsletterResearchWebinarsAdvertiseSearch
PrevNext
1234

SPOTLIGHT


A ZERO SUM GAME?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’
by local authorities is at a record high. Lottie Winson talks to education
lawyers to understand the reasons why, and sets out the results of Local
Government Lawyer’s exclusive survey.



PARENTS FAIL IN HIGH COURT CHALLENGE TO PERMANENT EXCLUSION OF CHILD FROM SCHOOL

 * September 16, 2024

 * 
 * Print
 * Email

The High Court has rejected a legal challenge brought by parents over a decision
of the Governors Disciplinary Committee (GDC) of a school to uphold the decision
of the headteacher to permanently exclude their child.

In LM & Anor, R (On the Application Of) v An Academy Trust [2024] EWHC 2267,
Jason Coppel KC, sitting as a Deputy High Court judge, said: “True it is that
the Independent Review Panel (IRP) made extensive and serious criticisms of the
decision of the GDC.

“But I have found no legal flaw in the reconsideration of that decision by the
RGDC (a reconstituted disciplinary committee of the Governing Body). It was in
principle open to the RGDC to effect a conscientious reconsideration of the
Headteacher's decision and in my judgment it did so, and so remedied any
shortcomings in the consideration originally given by the GDC.”

Outlining the background to the case, the judge noted that the Governors
Disciplinary Committee had been reconstituted in order to reconsider the
Headteacher's decision to exclude the pupil, TM, after an initial decision of
the Committee dated 25 November 2022 had been quashed on review by an
Independent Review Panel (IRP).

As set out in a letter in November 2022, the Headteacher had concluded that TM
had committed "acts of sexual violence and harassment towards other students on
and off the school premises".

In the Headteacher's view, these were "significant and persistent breaches of
the school's rules" which required TM's exclusion, and his return to school
would put other students at risk.

A managed move to another school had been considered but had been ruled out.

A disciplinary committee of the GDC considered TM's exclusion at a meeting later
that month, in which it upheld TM's exclusion.

The committee decided that the decision to exclude TM was lawful. The judge
said: “In its view, there had been "persistent breaches and a serious breach of
the school's behaviour policy regarding sexual abuse, harassment, or assault".”

Further, having reviewed witness statements and CCTV evidence, the panel were
“convinced on the balance of probabilities, that the behaviour attributed to
[TM] by his peers occurred".

The GDC rejected a complaint by the claimants that the Headteacher had not
compiled a formal risk assessment, on the basis that the Headteacher's approach
had been one of “continuous risk assessment”, and action in response to that
assessment, whilst investigating allegations against TM, the judge noted.

The claimants sought a review of the GDC's decision by an Independent Review
Panel (IRP).

By majority decision, the IRP quashed the GDC's decision that TM should be
permanently excluded and directed that the Governing Body reconsider TM's
reinstatement.

The criticisms of the GDC which were made by the IRP fell into two categories:
failures to consider relevant matters and procedural failings.

A reconstituted disciplinary committee of the Governing Body (the RGDC),
consisting of three different governors, met to reconsider TM's exclusion in
June 2023.

The RGDC considered that the Headteacher had been entitled to find on the
balance of probabilities that TM had engaged in unwanted touching of male and
female pupils.

The judge said: “The RGDC considered the criticisms of the IRP and of the
Claimants as to the gathering of evidence by the Headteacher. It acknowledged
that "in some areas the collection of evidence could have been better" but it
"did not feel that these issues detracted from the evidence to the extent that
it was unreasonable to rely upon it".”

Following this decision, TM’s parents sought a quashing order in respect of the
RGDC's decision and mandatory orders, including an order to readmit TM to the
school.

The claimants submitted the following grounds:

 1. The RGDC's findings of fact were irrational and unclear.
 2. The RGDC acted irrationally and contrary to statutory guidance in deciding
    that it could decide whether to uphold the Headteacher's decision without
    obtaining a risk assessment.
 3. The RGDC acted unreasonably by not seeking further evidence in relation to
    the authenticity of the pupil's statements and how independently they had
    been obtained.
 4. The RGDC acted irrationally in concluding that permanent exclusion was a
    last resort in the absence of evidence that alternatives had been properly
    explored.
 5. The RGDC acted procedurally improperly by not allowing the Claimants (nor
    TM) to make oral representations before the RGDC.
 6. Taken together the forgoing establishes that it was not possible for the
    RGDC, on a paper-based review of the materials, to uphold the Headteacher's
    decision to permanently exclude TM.

On ground 1, the claimants' allegation of illegality by the RGDC due to lack of
clarity in its findings of fact was founded on a dictum of the Court of Appeal
in Re K (Children) [2022] EWCA Civ 468 [2022] 1 WLR 3713, §85:

"There is, in our view, a real danger in reducing bespoke, detailed and subtle
findings made by a judge to one or two word headline labels, in place of the
original detail. The case analysis uses the labels of rape, bullying,
manipulation and physical abuse, each of which emits a neon light in an
erroneous and unjustified manner."

On this, the judge said: “The Claimants allege that the RGDC failed to
particularise its findings of fact, falling foul of the danger articulated in Re
K. However, the dictum in Re K is a flimsy basis for a public law challenge.”

He added: “The Court of Appeal was, in §85, criticising a case analysis which
had been compiled by CAFCASS and which included a summary of the findings of
fact made in the first instance family law judgment which was under appeal.

“[..] CAFCASS was not a decision-maker, and the Court of Appeal was not
analysing any decision made by it, or the reasoning underpinning such a
decision. The Court's dictum was no doubt intended to stand as guidance for the
compilation of other similar reports in the future, but it was plainly not
intended to be applicable in the very different context of public law
decision-making and cannot easily be read across to that context, where there
are already well-established standards of adequacy of reasons and rationality.”

The claimants submitted that the RGDC acted irrationally "by not inviting TM's
view or engaging seriously with the lack of an account from TM".

Considering this, the judge said: “I do not accept that there was any failure to
invite TM's views on these or indeed other allegations against him. […] The
Claimants were present and legally represented at the GDC and IRP hearings.

“Whilst TM's own contribution to these hearings was limited (he answered a
number of questions at the IRP hearing), that was down to the Claimants' choice
to take up the great majority of their time with other forms of evidence or
submission, including lengthy cross-examination of the Headteacher at the GDC
hearing. The Claimants also had the opportunity to make written submissions, to
the GDC, the IRP and the RGDC.”

On ground 2, the claimants submitted that that the RGDC acted irrationally and
“contrary to statutory guidance” by not itself obtaining a risk assessment
before proceeding to uphold the Headteacher's decision to exclude TM.

The judge noted that the requirement for a risk assessment in a case of alleged
sexual violence is set out in the KCSIE Guidance and is “not a pre-condition for
exclusion under the Exclusions Guidance”.

He added: “Second, it is alleged that the RGDC lacked the specialist evidence
which it needed to allow it to consider the risk which TM posed to other pupils
at the School. That is not correct: the RGDC had the specialist evidence of the
Headteacher as to the risk posed by TM.

“The Claimants disagree with the Headteacher's assessment, but the RGDC
considered it and in my judgment was entitled to rely upon it in circumstances
where it had accepted the significant majority of the Headteacher's factual
findings, including the most serious of them.”

Thirdly, it was alleged that the RGDC did not properly consider whether TM could
safely be educated at an alternative school.

However, the judge noted: “The Headteacher had sought to agree a managed move to
another school in the same locality but none of the schools which he approached
would agree to accept TM. When the Claimants found another school for TM, the
Headteacher cooperated with the admissions process at that school and TM was
admitted, and continues to be educated, there.”

Turning to ground 3, the judge noted that the RGDC was not required to accept
all of the findings of the IRP, but only to give “conscientious reconsideration”
to whether TM should be reinstated in the light of those findings.

He said: “In my judgment, it fulfilled that obligation in its approach to the
witness statements relied upon by the School.”

The judge added: “It was at one stage floated by [counsel for claimants], that
the RGDC was required to accept and give full effect to the findings of the IRP,
save unless the School had successfully brought judicial review proceedings to
challenge the IRP's decision.

“No authority was cited for that proposition, and I reject it as inconsistent
with the well-established approach that a Governing Body give conscientious
consideration to the findings of an IRP. A Governing Body must of course embark
upon a reconsideration if that is what is directed by an IRP, save unless it
successfully judicially reviews that direction. But having embarked upon a
reconsideration, the standard is conscientious consideration which is not
constrained by having to abide by every finding made by an IRP which has not
been subject to judicial review challenge.”

Turning to the fourth ground, the judge concluded that it was “far from
irrational” for the RGDC to accept the Headteacher's account of events,
notwithstanding the absence of supporting documentary evidence.

He said: “In my judgment, the RGDC was not required to reject the Headteacher's
account as untrue (or unproven) in the absence of such evidence, in particular
when it had found the Headteacher's findings to be essentially credible and
reliable and regarded his account of the managed move enquiries, and the
reported reaction of the other schools, as inherently plausible.”

On ground five, that the RGDC acted “procedurally improperly” by not allowing
the claimants (nor TM) to make oral representations before the RGDC, the judge
noted that the claimants failed to identify any particular issue on which TM was
required to be heard, due to not having had an opportunity to speak on the issue
previously.

Dismissing the claimants' submissions on ground 5, he said: “Absent an important
issue on which TM had not been enabled to be heard, it is difficult to see how
an error made by the RGDC in its reasoning could serve to establish, ex post
facto, that fairness required that TM be given the opportunity to make oral
representations. The requirements of procedural fairness should be apparent
before the decision in question is taken.”

Finally, on ground 6, the judge concluded that after rejecting each of the
foregoing grounds of claim, he must also reject the overall claim of
irrationality.

Concluding the case, Mr Coppel said: “I accept the submission of the school that
this overall claim adds nothing in circumstances where Grounds 1 to 5 have
failed. True it is that the IRP made extensive and serious criticisms of the
decision of the GDC. But I have found no legal flaw in the reconsideration of
that decision by the RGDC.

“It was in principle open to the RGDC to effect a conscientious reconsideration
of the Headteacher's decision and in my judgment it did so, and so remedied any
shortcomings in the consideration originally given by the GDC. I cannot agree
that no reasonable RGDC would have reached the decision to uphold TM's
exclusion.”

The parent’s claim was dismissed.

Lottie Winson




RELATED ARTICLES

Sep 18, 2024

THE INQUISITORIAL JURISDICTION OF THE FIRST-TIER TRIBUNAL (HESC)


Sep 18, 2024

DISPOSAL OF SCHOOL LAND AND SECRETARY OF STATE CONSENT


Sep 18, 2024

UPDATED SCHOOL ATTENDANCE GUIDANCE: THE KEY POINTS


Sep 18, 2024

ACADEMY CONVERSIONS AND SCHOOL ROLLS


See all in this section


FEATURED BOOKS

EMPLOYMENT IN SCHOOLS: A LEGAL GUIDE SECOND EDITION

Employment in Schools is the first book available to tackle the distinctive
legal and practical issues surrounding employing school staff. Teachers' terms
are largely imposed by legislation specific to education and the relevant
processes and structure of accountability are unique.

--------------------------------------------------------------------------------



Click here to visit the bookstore

--------------------------------------------------------------------------------




FEATURED JOBS

SOLICITOR (CHILDREN’S SAFEGUARDING)

£44,428 - £47,420 per annum

HEAD OF LEGAL SERVICES

c£75,445



Locum roles







Click here to register for job alerts

--------------------------------------------------------------------------------

Your job vacancy here from just £595 + VAT

Click here for further details
 



DIRECTORY

PrevNext
12345678910111213

 * Directory
   * Consultants
   * Drug and Alcohol Testing
   * Expert Witnesses
   * Legal Advisers
   * Legal Publishers
   * Litigation Support
   * Member/Councillor Training
   * Probate Genealogists
   * Training
   * Translation






FEATURED EVENTS


A-Z Family Law Podcast - 42 BR
02-08-2024
Online (pre-recorded)
Representation of clients with disabilities in Family Proceedings - Spire
Barristers
26-09-2024
Online (live)
Public Sector Insights – Mental Health & Capacity Matters - Blake Morgan
10-10-2024
Online (live)
Act Now - Working with Childrens Data
29-10-2024
Online (live)
To Fact-Find or not to Fact-Find? - 42 BR
30-10-2024
Online (live)
Children Public and Private Law Conference - St John's Chambers
19-11-2024
Bristol
DWF Public Sector Webinar: Neurodiversity
20-11-2024
Online (live)
Parental Responsibility - having it, acquiring it, removing it - 42 BR
27-11-2024
Online (live)
Enforcing orders made in financial remedy proceedings - 42 BR
27-11-2024
Online (live)
Act Now - Working with Childrens Data
17-12-2024
North-east
Child Competence in Public Law Proceedings - Caselaw & Top Tips - MBL
On demand
Online (pre-recorded)
Section 1 Children Act 1989 - The Nuts & Bolts - MBL
On demand
Online (pre-recorded)
 * About Local Government Lawyer
 * Terms and Conditions
 * Log in
 * Privacy policy
 * Sitemap
 * Polls

(c) HB Editorial Services Ltd 2009-2022