School Exclusions: Governors’ Policy and DfE Guidance Set the Legal Test; Behaviour Policies Cannot Elevate the Threshold — Immaterial Errors and High‑Intensity Review Clarified in SAG v Governing Body of Winchmore School [2025] EWCA Civ 1335

School Exclusions: Governors’ Policy and DfE Guidance Set the Legal Test; Behaviour Policies Cannot Elevate the Threshold — Immaterial Errors and High‑Intensity Review Clarified

Case: SAG, R (On the Application Of) v Governing Body of Winchmore School [2025] EWCA Civ 1335 (Court of Appeal, Civil Division, 21 October 2025)

Coram: Edis LJ (dissent), Elisabeth Laing LJ (majority), Arnold LJ (majority)

Result: Appeal dismissed (by majority). Permanent exclusion decision stands.

Introduction

This appeal concerns the boundaries of judicial intervention in school discipline and clarifies the policy framework governing permanent exclusions in maintained schools. SAG, a 14-year-old pupil, was permanently excluded following misconduct on a school skiing trip. The Governors’ Disciplinary Committee (GDC) initially upheld the headteacher’s decision, but an Independent Review Panel (IRP) quashed that decision for procedural unfairness and directed reconsideration. On reconsideration, the GDC again refused reinstatement. A judicial review challenge to the reconsideration decision was dismissed in the Administrative Court. SAG’s appeal to the Court of Appeal has now been dismissed by a majority.

The judgment addresses three central issues:

  • Which school policy sets the legal threshold for permanent exclusion: the governors’ Exclusions & Suspensions Policy (tracking DfE Guidance) or the headteacher’s Behaviour Policy (which, in one passage, uses the phrase “extremely serious” for one-off incidents)?
  • How far must courts apply a heightened or “anxious” intensity of review in exclusion cases, and what does that require in practice?
  • When will an error in a governing body’s reasons (here, mislabelling the conduct as “burglary”) be treated as immaterial so that the decision is not quashed under section 31(2A) of the Senior Courts Act 1981?

While Edis LJ would have allowed the appeal, finding the exclusion unlawful, the majority (Elisabeth Laing and Arnold LJJ) held that the governing body applied the correct legal framework, that the evaluative judgments were within the lawful range, and that the “burglary” mischaracterisation was immaterial to the outcome.

Summary of the Judgment

  • Policy hierarchy and the applicable legal test: The majority held that the legally governing test for permanent exclusion is set by the governors’ Exclusions & Suspensions Policy, which tracks the DfE statutory guidance (Education Act 2002, s51A; 2012 Regulations; DfE Guidance, Aug 2024). The headteacher’s Behaviour Policy cannot lawfully impose a stricter threshold (such as “extremely serious” for one-off incidents) that would bind the governors when exercising their statutory function. The Panel’s reliance on the DfE-aligned policy (Policy 1) was lawful.
  • Intensity of review: The Administrative Court correctly approached the case with a relatively exacting scrutiny (as appropriate in exclusion cases) but did not substitute its own view for that of the school’s decision-makers. The evaluative findings on both limbs of the exclusion test (serious breach; serious harm if the pupil remains) were within the range of reasonable decisions.
  • Immaterial error under s31(2A) SCA 1981: Although the GDC wrongly described SAG’s conduct as “burglary” (citing a non-existent section “91A” and misconceiving the Theft Act 1968), the majority agreed with the judge that it was highly likely the outcome would not have been substantially different absent that error. The determinative facts—the deliberate entry into a teacher’s room without permission to retrieve a confiscated phone in defiance of rules—remained, supporting the second limb judgment.
  • Outcome: Appeal dismissed. The permanent exclusion stands. The majority emphasised the limited role of courts and IRPs (both operating on public law grounds) in second-guessing school disciplinary judgments, even under heightened review.
  • Dissent: Edis LJ would have allowed the appeal, holding that the Panel unlawfully failed to apply (and could not reasonably satisfy) the “extremely serious” threshold he derived from the Behaviour Policy; that the “burglary” error tainted the limb 2 analysis; and that alternatives to exclusion were not rationally or adequately re-considered following the IRP’s quashing.

Analysis

Precedents and materials cited

  • R (oao TZA) v a Secondary School [2025] EWCA Civ 200: Reaffirms that governors are not simply reviewing but are part of a single composite decision-making process with the headteacher. The judgment in SAG builds upon TZA’s confirmation of the statutory scheme and the nature of the governors’ role, including on reconsideration.
  • R (RWU) v A Governing Body of A Academy [2024] EWHC 2828 (Admin) (Fordham J): After an IRP quashes a decision, the governors must reconsider “afresh” and put right what went wrong (no need for a full de novo hearing or a new panel). Also identifies a relatively exacting review in exclusion cases, reduced benevolence to reasons, and caution about “retro-reasons.” SAG applies these concepts but in an appellate setting.
  • R (KP) v Secretary of State for FCDO [2025] EWHC 370 (Admin) (Chamberlain J): Distinguishes process rationality (relevant considerations, logic, no critical gaps) from outcome rationality (decision within range). SAG deploys this framework to structure the court’s rationality review.
  • R v Governing Body of Dunraven School ex p B [2000] LGR 494 (Sedley LJ): Discipline committee is part of a single decision-making process, not an appellate tribunal. Echoed in SAG and TZA.
  • R (Greenfields (IoW)) v Isle of Wight Council [2025] EWCA Civ 488: Section 31(2A) Senior Courts Act 1981—immaterial error doctrine: a decision is not quashed if the outcome would highly likely have been the same absent the error. The majority in SAG use this to neutralise the “burglary” mistake.
  • R (SB) v Governors of Denbigh High School [2007] 1 AC 100: Cautions against courts substituting their views for school authorities; cited by the majority to emphasise institutional competence and limits of review.
  • Begbie; Kennedy; Pham; YH (Iraq): Cited or discussed via KP to show Wednesbury’s sliding scale; that more “anxious” scrutiny may be applied where the stakes are high; but the court still assesses whether the outcome falls within a range of reasonable responses.

Legal reasoning

1) Which policy sets the legal test for permanent exclusion?

The majority (Elisabeth Laing LJ, endorsed by Arnold LJ) hold that the governors’ Exclusions & Suspensions Policy (Policy 1), which “tracks” the DfE Guidance and embeds the two-limb test, sets the applicable legal standard. On the statutory framework (Education and Inspections Act 2006, ss88–89):

  • The governing body must make a written statement of general principles on discipline (s88(2)(a)) and may give the headteacher guidance (s88(2)(b)).
  • The headteacher must “act in accordance with” the governors’ statement when determining behavioural measures (s89(2)).
  • All relevant actors must “have regard to” the Secretary of State’s guidance (2012 Regulations, reg 9).

From this, the majority infer that the headteacher’s Behaviour Policy cannot lawfully increase the legal threshold for permanent exclusion beyond that in the DfE Guidance and the governors’ policy. Even if the Behaviour Policy contains language like “extremely serious” for one-off incidents, that cannot bind the Panel or re-write the statutory test. The Panel plainly applied limb 1 and limb 2 of the guidance/Policy 1 (“serious breach” and “serious harm” if allowed to remain).

Dissent: Edis LJ reads the Behaviour Policy and Exclusions Policy together and treats the Behaviour Policy’s “extremely serious one-off” benchmark as the applicable threshold, concluding the governors never lawfully addressed that higher bar and that on any view the incident could not rationally be characterised as “extremely serious.” The majority reject that approach, both as a matter of the legal hierarchy of policies and as a matter of how the Panel in fact reasoned.

2) The intensity of judicial review in permanent exclusion cases

Both the Administrative Court and the Court of Appeal recognise that permanent exclusion engages important interests for a child and merits relatively exacting scrutiny. The Administrative Court judge (drawing on RWU and KP) applied a “high intensity of review,” assessing process and outcome rationality and reading the reasons with reduced benevolence.

The majority in the Court of Appeal hold that, even on a heightened scrutiny, the evaluation of whether the two limbs are met is primarily for the governors. Courts and IRPs operate on public law grounds, not merits-substitution. The governors’ conclusions here fell within the range of reasonable outcomes. Arnold LJ stresses institutional competence: schools are better placed to assess the seriousness and community impact of conduct; even under “high intensity,” the court must not substitute its view for that of the decision-maker.

Dissent: Edis LJ considers that, given the gravity for a 14-year-old, the intensity of review should lead the court to conclude the only reasonable outcome was reinstatement: the Behaviour Policy’s higher threshold was never lawfully engaged; the “burglary” mischaracterisation infected limb 2; and alternatives were not properly reconsidered after the IRP’s quashing.

3) Immaterial errors under section 31(2A) Senior Courts Act 1981

The GDC’s reconsideration letter wrongly labelled SAG’s conduct as “burglary,” even citing “section 91A” of the Theft Act 1968 (a miscitation; and the analysis of burglary was wrong on the facts). The Administrative Court judge treated this as immaterial under s31(2A), and the majority agreed: the determinative facts were undisputed (entry into a teacher’s room without permission to retrieve a confiscated phone; breach of a specific dispensation; initial dishonesty; and the perceived breakdown of trust). On those facts, it was highly likely the outcome would not have been substantially different if the error had not been made.

Dissent: Edis LJ regards the “burglary” label as consequential: it buttressed speculative harms (e.g., community perceptions of “safety” and “vulnerability of property”) and displaced mitigating findings recorded at the first hearing (no tampering, no loss, no alternative motive). For him, the error was part of a process irrationality affecting limb 2, not a harmless misnomer.

4) Reconsideration after an IRP quashes a decision

RWU instructs that a quashing requires an “afresh” reconsideration, which must “put right what went wrong.” Here the IRP quashed the initial reinstatement decision mainly for procedural impropriety (ex parte discussion with the headteacher after parents withdrew). On reconsideration, the same three governors issued a reasoned decision letter setting out a 17-point limb 2 analysis. The Administrative Court and the majority found this adequate to address the IRP’s critique; there was no necessary requirement to convene another full hearing. Edis LJ considered that the reconsideration failed to cure the earlier flaws and illegitimately leaned on new and erroneous points (burglary, changed view of the behaviour log) without cogent explanation, undermining proportionality and alternatives analysis.

Impact of the Judgment

  • Policy hierarchy clarified: In exclusion cases, the governors’ Exclusions & Suspensions Policy—which must track and apply the DfE Guidance—supplies the controlling legal test. A Behaviour Policy cannot raise the exclusion threshold in a way that binds the Panel. Practitioners should therefore anchor arguments to the DfE-aligned policy and the two-limb test.
  • Heightened review, but no merits substitution: Courts may bring “reduced benevolence” to their reading of reasons and look closely for process gaps, but the evaluative judgements about seriousness and harm remain primarily for schools. SAG confirms the line: searching scrutiny does not entail re-hearing or substituting views.
  • Immaterial error doctrine confirmed in exclusion context: Misstatements of criminal law in reasons are perilous and should be avoided, but not every error will vitiate a decision. Under s31(2A), decisions may stand where the outcome is highly likely to be the same without the error.
  • Reconsideration after IRP quash: The reconsideration is “afresh” and must cure the identified defect, but it need not be a de novo evidential hearing. A careful, structured decision addressing limb 2 will normally suffice, unless reasoning shows critical gaps or reliance on irrelevant/tainted factors.
  • Practical governance lessons: Governors should avoid ex parte discussions; ensure headteachers are absent from deliberations; anchor reasoning in the two-limb test; avoid criminal labels unless strictly necessary and correct; explain any departure from earlier evaluative views (e.g., treatment of behaviour logs); and record the consideration of alternatives.

Complex Concepts Simplified

  • The two-limb test for permanent exclusion:
    • Limb 1 — “serious breach or persistent breaches” of the school’s behaviour policy.
    • Limb 2 — allowing the pupil to remain would “seriously harm” the education or welfare of the pupil or others (pupils or staff).
  • “Have regard to” vs “act in accordance with”: The headteacher must act in accordance with the governors’ statement of principles on discipline (s89(2)); all must have regard to DfE Guidance (Reg 9). “Have regard to” means paying real attention to the guidance and departing only with good reason.
  • Process rationality: The reasoning must consider all mandatory matters, avoid irrelevant ones, and contain no logical gaps.
  • Outcome rationality: Even with a sound process, the decision must fall within the range a reasonable decision-maker could reach.
  • Section 31(2A) Senior Courts Act 1981: A court may refuse relief for a public law error if it is highly likely the outcome would not have been substantially different had the error not been made.
  • IRP’s role: The IRP applies public law standards (legality, rationality, procedural fairness). It can quash or recommend reconsideration; it cannot substitute its own merits decision on sanction.
  • “High intensity” or “anxious” review: Where consequences are grave (like permanent exclusion), the court scrutinises reasons more closely and with less “benevolence,” but still does not substitute its views for those of the school.

Practical takeaways and guidance

For schools and governing bodies

  • Base exclusion decisions squarely on the DfE Guidance and the governors’ Exclusions & Suspensions Policy; make clear how both limbs are met.
  • Do not allow the headteacher to remain for private deliberations. Record who is present at each stage.
  • Avoid criminal law characterisations unless they are accurate, necessary and supported by evidence. Focus on conduct and its educational impact.
  • If an IRP has quashed a decision, expressly address the defect it identified. Explain any change of view (e.g., on behaviour logs) with reasons.
  • Show that alternatives were considered and why they were rejected. If proportionality is debated, demonstrate why lesser sanctions would not safeguard welfare/education.
  • Keep reasons succinct but coherent: avoid speculation, tether conclusions to facts, and explain the “serious harm” analysis in plain language.

For parents and representatives

  • Challenge decisions by testing both limbs. For limb 2, seek concrete evidence of serious harm beyond assertion; identify speculative leaps or missing links.
  • Scrutinise whether reconsideration truly “put right” the IRP’s criticism, and whether new reasons are relevant and fair.
  • Be realistic about the court’s role: even under heightened review, the court will not reweigh the merits unless the outcome falls outside the range of reasonable decisions.

Conclusion

This judgment clarifies a crucial structural point in school exclusion law: the legally controlling test for permanent exclusion is the DfE-aligned policy made by governors; a Behaviour Policy cannot ratchet up the threshold in a way that binds the Panel. The Court of Appeal also underscores the balance in judicial review of exclusions: courts may apply searching scrutiny where consequences are serious, but they will not replace the school’s evaluative judgments so long as those judgments are within the reasonable range and the process is lawful.

Although the GDC erred by describing the conduct as “burglary,” the majority held that the error was immaterial under section 31(2A) because the core facts—deliberate defiance, trespass into a staff room to retrieve a confiscated phone, and a breakdown of trust—rationally supported the limb 2 conclusion. The dissent would have set aside the decision as disproportionate and procedurally flawed in substance, emphasising the Behaviour Policy’s “extremely serious” one-off threshold and the inadequacy of alternative-sanction reasoning.

Going forward, governors should be meticulous in avoiding ex parte deliberations and criminal law labels, and in explaining the limb 2 analysis with fact-based reasoning. Practitioners should orient arguments to the DfE-aligned policy and the two-limb test, appreciating that even under heightened review, the court’s function remains supervisory, not substitutive.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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