Exclusion procedures in schools

A further case around the exclusion process in state funded schools has been published. 

The case (R (ota SAG) v Winchmore School [2025] EWCA Civ 1335) was heard by the Court of Appeal and primarily concerned with the reconsideration of a permanent exclusion by the Governing Body (“the Governors”) following the decision of the Independent Review Panel (IRP) to quash the original decision. The Court of Appeal made it clear that it viewed R (ota TZA) v a Secondary School [2025] EWCA Civ 200 as the current leading case in this area, but there are points arising from the facts and decision made which provide some practical learning points which are worth considering by those involved in reviewing exclusions at the initial governor stage or on reconsideration.

• Following the Headteacher’s decision to permanently exclude the student, the decision was reviewed by the Governors through its discipline committee (”GDC”). The GDC heard the evidence from both parties and began to deliberate. During those deliberations, the GDC came to a decision that reinstatement of the student was required. At this point, the GDC invited the Headteacher (but no one else) into the GDC meeting for a further discussion; after which the GDC decided not to reinstate and uphold the permanent exclusion. The matter went to the IRP who found that the process operated by the GDC was procedurally unfair and contrary to the rules of natural justice as any such meeting should have also been open to the parents/advocate. The IRP quashed the decision on that basis.
• This approach was clearly contrary to the exclusions framework and the rules of natural justice. It is a clear reminder to Governors reviewing exclusions that they need to ensure that they have all the evidence they need to make a decision on a suspension or permanent exclusion decision before the formal hearing with the school and parents is concluded. The role of the Governors is to test the evidence presented by both parties to ensure that they have sufficient evidence to consider the interests of the excluded student and others in the school community; to understand the circumstances of the excluded student, including the circumstances of the exclusion and to determine whether the exclusion was lawful, reasonable and procedurally fair in light of that evidence and the Headteacher’s legal duties. It is not possible to call one party back into the meeting, in the absence of the other party, to clarify issues.
• The School had a Behaviour Policy and an Exclusion Policy – both are policies which the DfE require schools to have. The policies were not identical in terms of the tests to apply when a permanent exclusion was required. Whilst the Exclusion Policy repeated the same broad test as outlined in the DfE’s statutory guidance on Exclusions, the Behaviour Policy made reference to the need for an “extremely serious incident” to justify a permanent exclusion. This issue caused some concern within the Court of Appeal which was ultimately decided in favour of the School. 

However, it reinforces the need for Governors to ensure that their policies align with DfE guidance and, equally as importantly, align with other School policies. The Behaviour and Exclusion policies should reference the same tests as the DfE statutory guidance – this would avoid any confusion. It is also important that other policies which may require the School to take certain steps also align with the Behaviour Policy’s approach in that area, i.e. a Drugs Policy must reflect the approach of the Behaviour Policy if a zero-tolerance approach is set out in the latter document. Any lack of clarity will not allow an effective consideration of the issue by Governors or any subsequent IRP. If different wording is used in the School policies, it will be necessary for the decision makers (Headteacher or Governors) to justify why the behaviour exhibited met that enhanced standard – it would need to be carefully considered and recorded as part of the exclusions process.

The Judge (who held the minority opinion) put the approach in these terms “It boils down to the principle that they [the Governors] should have regard to the Guidance, as it is their duty, and to their own policies for which they are responsible. These documents should be applied fairly and in accordance with the facts of the case, and a decision should be produced with reasons which explain in plain and succinct language how it has been reached and how the Guidance and policies have been applied.”

• The Court of Appeal affirmed the decision in R (RWU) v Governing Body of A Academy [2024] EWHC 2929 (Admin) which looked at the role of the Governors on reconsideration following a quashing decision. It was confirmed that where the initial Governors’ decision is quashed by an IRP, it no longer subsists as a lawful discharge of the Governors’ duties to review a permanent exclusion. As such, on reconsideration, Governors must consider the lawfulness, reasonableness and procedural fairness of the Headteacher’s decision to permanently exclude in light of the IRP’s findings. It requires a full review of the Headteacher’s decision rather than just focusing on the points identified as flaws by the IRP. The role of the Governors’ on reconsideration is to undertake that full review whilst making sure that they “put right” what the IRP had identified as going wrong the first time.

As exclusions remain a consistent part of the education landscape, the decisions of Headteachers, Governors and IRPs will remain under scrutiny. Access to quality advice and training is available and if you have any questions arising from the exclusion framework, please contact Richard Freeth, Partner in the Education Team, on richardfreeth@stoneking.co.uk or 0121 387 3293 or your usual Stone King contact.