Permanent Exclusion: High Court clarifies standard of reasons required from governors' disciplinary panels

In HVF v Lift Schools, the high court provides important guidance on the standard of reasons a GDP must give when it upholds a permanent exclusion. 

Facts

The pupil, referred to by the court as “Henry”, was 10 years old and had complex special educational needs and disabilities (SEND). He had attention deficit hyperactivity disorder (ADHD), autism, significant social, emotional and mental health (SEMH) needs, and an education, health and care plan (EHCP). 

The incident leading to the exclusion involved a replica butterfly knife with a blunt blade and rounded ends. During a playground break, Henry and two other pupils were playing with the knife. One of the children restrained another pupil and Henry handed the replica knife to him. The child then used it to stab another pupil. Staff intervened immediately and confiscated the knife. The injured pupil did not suffer significant harm. 

Later, when a member of staff refused Henry’s request to return the knife, he swore at her. 

The school decided to permanently exclude Henry. Both the GDP and the Independent Review Panel (IRP) upheld the decision to exclude him. 

High Court

The high court held that a GDP must show, through its contemporaneous reasons, that it has carried out its own careful proportionality assessment of whether the threshold conditions for permanent exclusion are met. 

It must explain why allowing the pupil to return would seriously harm the education or welfare of the pupil or others at the school. That assessment requires the GDP to consider: 

• The likely impact on the pupil of being unable to return to the school
• The nature and likelihood of any harm that might arise if the pupil were reinstated; and
• Whether less severe measures could adequately address the risks 

Those alternative measures might include a fixed-term suspension or an off-site direction requiring the pupil to attend another setting before returning to school. 

The court concluded that in this case, the GDP’s reasons were inadequate because they did not explain why the threshold for permanent exclusion had been met. The absence of a clear explanation was particularly significant given Henry’s complex SEND needs and the possibility that he may not have fully understood the risks associated with the knife.  

The high court therefore quashed (set aside) the GDP's decision not to reinstate Henry. 

What does this mean for schools?

This decision confirms that parents may be able to challenge the GDP’s decision itself, rather than the later IRP’s decision. 

It also highlights that decision makers must carry out a genuine and thorough proportionality assessment. The judgement also suggests that schools should be cautious about treating a child’s SEND or SEMH needs as irrelevant simply because the child appears regulated at the time of the incident. Those needs may remain highly relevant when assessing risk, culpability and proportionality. 

The case also shows that GDPs must give clear and sufficiently detailed reasons for their decisions. It is not enough simply to record the outcome. The reasons should explain why the panel concluded that the threshold for permanent exclusion was met and why alternative measures were considered insufficient. 

As the high court noted, adequate reasons serve an important purpose. They not only enable a pupil and their family to understand and, if necessary, challenge the decision, but also promote confidence that the process was fair and properly conducted. 

Please contact Esther Salter if you would like advice on permanent exclusions or managing complex SEND-related matters. 

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