Court of Appeal decision on permanent exclusion from school for serious one-off incident

Decision highlights the need for consistent school policies in line with the statutory exclusions guidance.

The Court of Appeal has dismissed a parent’s appeal against a school’s decision to permanently exclude a pupil, providing clarity on how exclusion decisions should be approached where there are inconsistencies between different school policies and the statutory exclusions guidance.

The  statutory exclusions guidance states that the decision to exclude a pupil permanently should only be taken:

• 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 such as staff or pupils in the school.

The judicial review case of R (on the application of SAG) v Governing Body of Winchmore School [2025] EWCA Civ 1335 considered a governing body’s decision to uphold a permanent exclusion following a pupil’s misconduct during a school trip.

The facts

The case concerned a pupil who was permanently excluded following a one-off incident of serious misconduct during a school ski trip.

The pupil breached the school’s rules on mobile phone use during the trip. After the phone was confiscated, the pupil entered a teacher’s private hotel room without permission (having first obtained the room key) in an attempt to retrieve it.

The headteacher concluded that the conduct amounted to a serious breach of the school’s behaviour policy and that allowing the pupil to remain in school would seriously harm the welfare of others. A decision was therefore taken by the headteacher to permanently exclude the pupil.

The governing body upheld the exclusion on review. An Independent Review Panel (IRP) then quashed the exclusion decision and directed the governing body to reconsider reinstatement.  The IRP considered that the governing body’s procedure was fundamentally flawed as it had invited the headteacher back into the review meeting at the stage where the governing body was deliberating on its decision and when the parents were not present.  

The governing body reconsidered the decision and again upheld the permanent exclusion. As part of its consideration, it noted its view that the pupil had committed the criminal offence of burglary by entering a teacher’s room to retrieve her phone without permission. 

The pupil’s parents brought a judicial review challenge, which was dismissed by the High Court.The parents appealed to the Court of Appeal. The parents argued, amongst other things, that permanent exclusion could only be justified if the one-off incident for which it was imposed was “extremely serious” as this was the termed used in the school’s Behaviour Policy, which the headteacher expressly mentioned in the exclusion letter.

By contrast, the schools’ Exclusion Policy and the statutory guidance on exclusions refer to permanent exclusion decisions only being taken “in response to a serious breach or persistent breaches of the school's behaviour policy”.

The Court of Appeal’s decision

The Court of Appeal dismissed the appeal on a majority decision, with one of the three judges dissenting.

The Court confirmed that the correct test for permanent exclusion is that set out in the statutory exclusions guidance: where the conduct is a one-off incident, it must be a serious breach of the behaviour policy, and it must be the case that the pupil’s continued presence in school would seriously harm the education or welfare of the pupil or others in the school.

The Court noted that the Behaviour Policy set a higher threshold for the use of permanent exclusion for a one-off incident, using the phrase “extremely serious one-off incidents”. The Court confirmed that the governing body’s exclusion policy (aligned with the statutory exclusions guidance) was the appropriate framework to apply to exclusion decisions and that a behaviour policy should not be read as imposing a higher threshold that conflicts with the statutory guidance.

The Court noted that the governing body had been incorrect to label the pupil’s conduct as burglary. However, it did not consider that this error had a material impact on the decision to uphold the exclusion. The Court confirmed that errors in reasoning will not render a decision unlawful where they are immaterial to the outcome, and reiterated that headteachers and governing bodies are afforded a wide margin of discretion in exclusion decisions.

Key points for schools

• Ensure behaviour and exclusion policies are consistent with each other and aligned with the statutory exclusions guidance to avoid confusion and a lack of clarity.

• Clearly apply and record consideration of the two limbs of the statutory test in exclusion decisions.

• Focus on the conduct and its impact, rather than seeking to define conduct in terms of a criminal offence.

• Ensure that the governing body review is conducted in line with the statutory guidance and that the school representative does not attend the governing body’s deliberations on its review decision.

• Carefully document the reconsideration process where required with specific attention to any points raised by the IRP.

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice, please feel free to contact Wrigleys Solicitors.