Tza, R (On the Application Of) v A Secondary School (Rev1)

Factual and Procedural Background

This appeal concerns the dismissal by Upper Tribunal Judge Church, sitting as a High Court Judge, of a judicial review claim challenging the permanent exclusion of a 15-year-old pupil from his secondary school. The pupil, of black Caribbean heritage and with special educational needs (SEN), was excluded following involvement in two assaults on fellow students. The claim was brought by the pupil's mother, anonymised as "the Claimant," with the pupil referred to as "the Pupil" and the school as "the School."

The exclusion process followed statutory provisions under section 51A of the Education Act 2002 and the School Discipline (Pupil Exclusions) (England) Regulations 2012, alongside statutory guidance issued by the Secretary of State for Education (the 2017 Guidance). The exclusion decision was communicated by the Headteacher on 13 May 2021. The School's Governors Disciplinary Committee (GDC) considered the exclusion on 8 June 2021 and decided not to reinstate the pupil. An independent review panel (IRP) convened in January and March 2022 and, while declining to quash the GDC decision, recommended reconsideration due to concerns about the reasoning. The GDC reconsidered on 11 July 2022 and confirmed its original decision. The claim challenges only the GDC's reconsideration decision.

Legal Issues Presented

1. Whether the GDC's reconsideration decision lawfully complied with the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010, particularly whether the Headteacher and GDC properly had due regard to the needs of the pupil's protected characteristics (race and SEN) in the exclusion decision.
2. Whether the GDC provided adequate reasons in its reconsideration decision addressing the concerns raised by the IRP.

Arguments of the Parties

Claimant's Arguments

• The Headteacher failed to comply with the PSED in making the original exclusion decision, which was unlawful.
• The GDC erred in failing to find such a failure and in declining to reinstate the pupil.
• The exclusion letter and decision lacked express reference or documentary evidence demonstrating compliance with the PSED.
• The GDC's reconsideration decision inadequately addressed the specific concerns raised by the IRP, particularly regarding the school's support for the pupil’s SEN and the proportionality of exclusion.
• The absence of contemporaneous documentation evidencing PSED compliance was fatal or at least a significant evidential factor.
• The GDC failed to properly test and explain its reasoning on various points identified by the IRP, including the seriousness of the breach, prior status of the pupil, opportunity to present the case, and support provided after fixed-term exclusions.
• The Judge erred in relying on evidence not before the GDC, such as witness statements, to conclude PSED compliance.

Defendant's Arguments

• The Headteacher did comply with the PSED, and there is no legal requirement for contemporaneous written records of such compliance.
• The GDC itself discharged the PSED when reconsidering the exclusion and was entitled to rely on the Headteacher’s evidence as recorded in the minutes.
• Even if the Headteacher erred in applying the PSED, the GDC was not bound to reinstate the pupil if it was satisfied the exclusion was justified.
• The GDC’s reasons, taken as a whole including the minutes of the original and reconsideration meetings and the exclusion letter, were adequate and addressed the IRP’s concerns sufficiently.
• The Judge properly considered all admissible evidence and correctly concluded that the PSED had been complied with and that the reconsideration decision was lawful.
• The GDC’s approach to reconsideration was consistent with statutory guidance and relevant case law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3156 (Admin)	No legal duty to make express reference to PSED in decision, but good practice to keep records demonstrating consideration.	The Judge relied on this to reject the requirement for contemporaneous written evidence of PSED compliance.
R v Governing Body of Dunraven School, ex p B [2000] LGR 494	Governors are not merely a tribunal of appeal but part of a single decision-making process with the Headteacher.	The Court held the GDC could discharge the PSED itself and was not required to reinstate simply because the Headteacher erred.
R (a Parent) v Governing Body of XYZ School [2022] EWHC 1146 (Admin)	Reconsideration by governors involves reviewing original material and deciding whether to uphold or change the decision, with discretion to consider new relevant information.	Supported the approach to the GDC's reconsideration process in this case.
South Bucks District Council v Porter (No. 2) [2004] UKHL 33	Reasons must enable understanding of why a decision was made on principal controversial issues; reasons can be brief.	The Judge applied this standard in assessing the adequacy of the GDC's reasons.
Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	Due regard under PSED requires a rigorous and conscientious focus on specified considerations.	The Judge found the Headteacher's consideration of PSED was contextually appropriate and met the duty.
R (KE) v Bristol City Council [2018] EWHC 2103 (Admin)	Context-dependent application of PSED and related legal principles.	Referenced in support of the Judge's contextual approach to PSED compliance.
R (AD) v London Borough of Hackney [2019] EWHC 943 (Admin)	Legal standards on PSED and public authority decision-making.	Referred to for principles on PSED application.
W v Education Appeal Committee of Lancaster County Council [1994] ELR 533	Use of witness statements to elucidate minutes in judicial review proceedings.	The Court accepted that witness statements could clarify the GDC's reasoning.
R (AT and BT) v London Borough of Barnet [2019] EWHC 3404 (Admin)	Requirement for cogent reasons when a public authority departs from tribunal recommendations.	The Court distinguished this case as not analogous to school exclusion reconsiderations.

Court's Reasoning and Analysis

The Court analysed the Public Sector Equality Duty (PSED) ground by first confirming that the Headteacher and the Governors (GDC) were subject to the PSED under the Equality Act 2010. It emphasised that the PSED requires decision-makers to have “due regard” to eliminating discrimination, advancing equality of opportunity, and fostering good relations among persons with protected characteristics, including race and disability.

The Court noted the statutory guidance and that the pupil belonged to groups disproportionately affected by school exclusions (Caribbean ethnicity and SEN). However, it accepted that the PSED’s application in individual exclusion decisions is context-dependent and is not absolute. The test for permanent exclusion requires serious misconduct and serious harm, which may override PSED considerations in some cases.

The Court rejected the Claimant’s argument that contemporaneous written records of PSED consideration were legally required, relying on established authorities that due regard must be paid but need not be documented contemporaneously. It found that the Headteacher’s oral evidence, as recorded in the GDC minutes, sufficed as proof of compliance.

The Court held that the GDC was entitled to rely on the Headteacher’s evidence and that the GDC itself had discharged the PSED in reconsidering the exclusion. It rejected the contention that a legal error by the Headteacher could not be cured by the GDC’s proper consideration, holding that the GDC’s ultimate decision was independent and that it had properly considered the relevant factors, including PSED.

On the adequacy of reasons, the Court applied the legal standard that reasons must enable understanding of the decision and conclusions on principal issues but need not address every point raised. It found the GDC’s reasons adequate, noting that the GDC addressed the IRP’s concerns sufficiently in its minutes and decisions, particularly on the seriousness of the breach, support provided, and the pupil’s examination status.

The Court rejected the Claimant’s argument that the GDC had to address every IRP concern individually, finding that some concerns were irrelevant or immaterial to the reinstatement decision. It accepted that the GDC’s broad review of the pupil’s support was sufficient to meet the IRP’s criticism about reviews after fixed-term exclusions and social, emotional, and mental health assessments.

The Judge’s consideration of evidence not before the GDC, such as witness statements, was deemed appropriate to clarify the GDC’s reasoning and did not amount to error.

Holding and Implications

The Court DISMISSED the Claimant's appeal, upholding the Judge’s dismissal of both grounds of challenge.

The decision confirms that:

• There is no legal requirement for contemporaneous written records evidencing PSED compliance in individual exclusion decisions; oral evidence and the decision-maker’s conduct may suffice.
• The Governors’ Disciplinary Committee may cure any legal error by the Headteacher in relation to PSED by properly discharging the duty themselves in reconsidering exclusion decisions.
• The adequacy of reasons for decisions requires clarity on principal issues but does not mandate addressing every point raised by an independent review panel if those points are irrelevant or immaterial.

The ruling directly affects the parties by affirming the lawfulness of the permanent exclusion and the GDC’s decision not to reinstate the pupil. No novel legal principles were established beyond the application of existing law to the facts.