Introduction
The law sets out a number of tests that must be satisfied for a permanent exclusion to be lawful. The governing board does not have the power to uphold exclusions that are not lawful. Therefore, if the governing board finds an exclusion to be unlawful but upholds it anyway, then they are acting outside of the scope of their lawful powers. The decision would, in such circumstances, be in breach of the public law principle of lawfulness.
For example, Hina is excluded for persistent disruptive behaviour. The family challenges the characterisation of the behaviour of 'persistent' as there were only three incidents, all occurring in the same week. The school does not assert that any individual incident was serious, instead relying on the number of incidents. The governors agree that this 'probably isn't what persistent is meant to cover', but uphold the exclusion anyway.
A permanent exclusion can only be in relation to a serious breach or persistent breaches of the school's behaviour policy. By agreeing that the exclusion was in response to neither, the governors had no lawful power to uphold the exclusion.
The governing board should not uphold the exclusion if they agree that it:
- was not compliant with the tests in the exclusions guidance;
- was discriminatory;
- was in breach of human rights standards;
- was unlawful on a public-law basis.
Next step?
Read the governing board's decision letter and any evidence of their deliberations in the minutes of the meeting. Then answer the question: Did the governing board make a decision that was outside of their lawful powers?
