School exclusions: Court of Appeal downplays the public sector equality duty in the decision making process

In TZA v A Secondary School, the Court of Appeal had to decide if a school had breached its Public Sector Equality Duty by excluding a pupil of black Caribbean heritage with special educational needs.

Facts

In May 2021, the head decided to exclude a 15-year-old boy who had assaulted two pupils on the same day. She informed the boy's mother and set out the background to her decision and the reasons she had reached it. The head didn't give them an opportunity to oppose the exclusion before reaching a decision.

The boy had previously physically assaulted other people at school, had already been suspended and had been warned that if he repeated his behaviour he might be permanently excluded. His record showed that his behaviour had deteriorated in the weeks leading up to his exclusion. He had also been given appropriate support.

The School Discipline (Pupil Exclusions) (England) Regulations 2012 required the Governing Disciplinary Committee (GDC) to consider reinstating him. They decided against that and the mother applied for an independent review of their decision. The IPR decided not to quash the governor's decision but did identify some concerns about its reasoning and recommended that it reconsider its decision. The GDC did that but didn't change the outcome.

The boy's mother brought judicial review proceedings against the school. She argued that:

• her son's exclusion was unlawful because the head had failed to comply with the PSED and had not produced any written evidence to demonstrate that she had considered it; and
• the GDC had not given adequate reasons for its decision.

She didn't want her son to return to school as he was settled elsewhere. Instead, she wanted the exclusion to be removed from his record because it affected the way he felt about himself.

The High Court dismissed both claims and she appealed to the Court of Appeal.

The PSED

This duty forms part of the Equality Act 2010. It requires those that exercise public functions to have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act
• advance equality of opportunity between persons who share a relevant protected characteristic and those who don't share it; and
• foster good relations between persons who share a relevant protected characteristic and those who don't share it.

Decision of the Court of Appeal

The Court of Appeal rejected the appeal on all grounds and made a number of observations that will be helpful to other schools.

Guidance relating to the drafting of the PSED says that exclusion should be a ‘last resort’ in response to a serious breach or persistent breaches of the school's behaviour policy, and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

The decision has to lawful, reasonable and fair and schools must not discriminate against pupils on any protected ground.

A school has to comply with both duties.

It also must comply with its statutory duties in relation to SEN. SEN children and those from Caribbean ethnicity are amongst groups who have higher than average exclusion rates. The guidance indicates that heads should consider what extra support they can provide which will address the needs of pupils from these groups and minimise the risk of exclusion. 

Applying this to the facts of the case, they found that the High Court had been entitled to find that the head had ‘due regard’ to the PSED, was aware of the boy's SEN and ethnicity and of the support he had been given.

Learning points for schools and governing bodies

1. When a IRP recommends that the GDC reconsider its decision, they must review the material presented at the original hearing. They can consider new information, if it's relevant. 

2. Schools and GDCs should consider the individual circumstances of the case including: what the child has done, the risk of harm to others (and to them) if they remained in school, and any particular features, such as whether the pupil is from a group which are disproportionately at risk of being excluded, and any failures in previous support that has been given. Focussing on the requirements of the PSED in the context of an individual exclusion is ‘liable to be distracting and unhelpful’ and adds 'nothing of substance’.

3. Schools can rely on either or both serious breach or persistent breaches to justify excluding a pupil. They don't need to choose between the two.

4. Past conduct may be relevant even if the exclusion is based on a one-off ‘serious breach’ rather than ‘persistent breaches’ over an extended period. The court made it clear that even in cases where the school is considering excluding a pupil for a single serious breach, it may be relevant to consider their record in order to assess future risk of harm, or to see if there are any extenuating circumstances which would render permanent exclusion disproportionate.

5. GDC's should independently review and decide for themselves whether exclusion is appropriate and complies with the school's legal responsibilities. 

6. If the GDC is asked to reconsider its decision, it needs to focus on whether its previous findings and decision should be changed or upheld. There is no need to consider every single point - particularly if they are irrelevant or only of marginal significance. 

7.  The decision maker- whether that's the head or the governing body must set out their reasons in a reasonable way so that they can understand why that outcome was reached. 

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