On 5 August 2026, the High Court handed down a judgment quashing the permanent exclusion of a 10-year-old child with complex special educational needs and disabilities (‘SEND’) who was permanently excluded from primary school. The High Court quashed Henry’s permanent exclusion and provided important guidance about the need for schools to undertake a “careful assessment”, including consideration of the proportionality of a permanent exclusion decision.
This is an important decision for all schools in respect of exclusions and the need to provide detailed reasons with clear analysis and reasoned assessment of the ‘serious risk of harm’ limb of the exclusion pre-conditions, together with a clear record of consideration of alternatives to permanent exclusion, particularly as the Judge notes at paragraph 37 of the judgment that:
“Thus, although it is common for schools’ behaviour policies to identify permanent exclusion as the “sanction” at the farthest end of a spectrum of “sanctions” for behaviour by pupils which breaches the policy, it is important to bear in mind that, under the Guidance, the legitimate purpose of a permanent exclusion is not punishment but protection…
the primary purpose of the permanent exclusion is not punishment, but to protect pupils and staff in the school.”
The permanent exclusion letter of the headteacher and the GDP decision consisted of statements which the Judge found were essentially just asserted conclusions: they asserted that the pre-conditions for permanent exclusion were satisfied. The documents did not provide reasoning or analysis explaining why the Principal and/or the GDP had found that those pre-conditions were satisfied.
Those documents did not provide – but ought to have provided – the following:
(1) A statement as to, and reasoned assessment of, the nature of the “serious harm” that the GDP consider would occur if [pupil] was allowed to resume attending the school.
(2) A statement as to, and reasoned assessment of, the degree of likelihood of that harm occurring.
(3) A statement as to, and reasoned assessment of, the degree of harm likely to be caused to [pupil] by the permanent exclusion, taking account of his relevant circumstances, including his SEND and the evidence that he was otherwise reasonably well-settled in the school. [A child with SEMH needs is likely to find it more difficult, as compared with an average child of similar age who does not have SEMH, to successfully transition to a new school.]
(4) Consideration of whether there were any alternatives to permanent exclusion (i.e. alternatives that would have enabled [pupil] to resume attending the school) – such as, for example, a further fixed-term exclusion, or an off-site direction – available which would sufficiently mitigate the risk of the contemplated serious harm occurring.
Notably, by the time the GDP hearing took place, Henry had already been de facto excluded from school from the day after the incident (at the beginning of July) through to beyond the last day of that academic year. Given the school holiday period, he had therefore not attended the School for around 10 weeks following the incident. This should have been recognised as a material factor when the GDP was considering whether Henry could be allowed to return to the School without this giving rise to harm to the school community.
The court found that Principal’s exclusion decision letter was also lacking in reasons and analysis.
The giving of reasons (not just asserted conclusions) is important, regardless of whether the decision included, or should have included, consideration of proportionality, that is because reasons assist individuals in exercising their rights of appeal or judicial review so as to challenge decisions that may be vitiated by unlawfulness.
There is a further reason why the giving of reasons is important:
it assists in providing individuals with a basis for having confidence in the decision- making process and that they have been treated fairly. This may be of particular value to individuals who are of minority racial or other backgrounds, or who have faced discrimination in the past.
In the case, Henry was a Black child attending a school in which Black children were a small minority. He and his mother believed he had, earlier in his education, suffered racial prejudice. A key driver of his mother’s determination to pursue these proceedings on his behalf appears to have been a concern that he may have been treated less favourably because of his race. The Judge did not find evidence that this was so. But the lack of reasoning in the Principal’s exclusion letter and the GDP’s decision letter is likely to have contributed to her lack of confidence that Henry was being treated fairly.
An IRP, in deciding whether to quash a decision, is required to apply the same principles as this Court applies on an application for judicial review.
The Judge held that an IRP should quash a GDP’s decision in circumstances where this Court would have granted that remedy upon a judicial review claim. Accordingly, if a GDP’s decision is inadequately reasoned in the sense that the written reasons (including any contemporaneous deliberation minutes supplied alongside those reasons) do not suffice to show that the GDP approached its task correctly and properly considered the matters it needed to consider, then the appropriate outcome of the IRP hearing will generally be quashing of the GDP’s decision. Quashing will be the appropriate outcome unless the IRP is satisfied either:
(a) that the question as to whether the pupil should be able to return to the school has become academic; or
(b) that it is highly likely that the outcome for the pupil, i.e. permanent exclusion, would have been the same, even if the error in approach, or lack of proper consideration, implied by the GDP’s inadequate written reasons had not occurred.
The IRP should not allow a school to salvage a GDP’s decision by presenting evidence from one or more members of the GDP that certain matters were considered, or as to why certain potential alternative options were dismissed, where this goes beyond reasonable elucidation of the reasons that the GDP contemporaneously set out in its written decision. Otherwise, IRPs would be at risk of allowing schools to succeed in sustaining poorly reasoned written decisions based on advancing previously undisclosed reasons, and/or self-serving ‘retro-reasons’, in a way that would not be permissible in proceedings in this Court.
In our view, there are lots of useful points for schools to take from this case including the need to set out carefully drafted reasons for the decision in the exclusion letter, paying particular attention to why allowing the child to remain in school would seriously harm their welfare and/or the welfare of others in the school. The governors also need to consider these issues carefully in their review of an exclusion and ensure that their deliberations are carefully reflected in their decision letter. It is also not uncommon for schools to encounter issues at an IRP because the minutes from the governors’ review meeting are not detailed enough and do not capture all of the questions asked at the meeting and the governors’ deliberations. As noted above, it is very important that the minutes are detailed and capture this detail so that the governors have evidence of the issues they have considered if the case is referred to an IRP.
For assistance with all your suspension and exclusion issues please contact our team of specialist lawyers at schoolsupport@wslaw.co.uk or on 0345 070 7437.