June 17, 2025

PZP -v- HS Academy Trust and another (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Case number: AC-2025-MAN-000158

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

10 June 2025

Before:

Andrew Thomas KC
sitting as a Deputy High Court Judge

Between:

The King
on the application of
PZP
(by his litigation friend)

-v-

(1) HS Academy Trust
(2) The Independent Review Panel of HS Academy Trust

Order

Notification of the Judge’s Decision (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant, the Summary Grounds of Defence of the First Defendant and the Summary Grounds of Defence of the Second Defendant and the Claimant’s Reply.

ORDER of Andrew Thomas KC sitting as a Deputy High Court Judge

Anonymity:

(a) Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or s. 6 of the Human Rights Act 1998:

(i) the Claimant’s name is to be withheld from the public and must not be directly or indirectly disclosed in any proceedings in public; and

(ii) the Claimant is to be referred to orally and in writing as PZP and the Trust is to be referred to as the HS Academy Trust.

(b) Pursuant to s. 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimant or of any matter likely to lead to the identification of the Claimant in any report of, or otherwise in connection with, these proceedings.

(i) if any statement of case subsequently filed includes information likely to lead to the identification of the Claimant, a redacted copy omitting that information must be filed at the same time;

(ii) unless the Court grants permission under CPR 5.4C(6), no non-party many obtain a copy of any unredacted statement of case.

(d) Any person wishing to vary or discharge this Order must make an application, served on each party.

Permission:

Permission to apply for judicial review is refused.

Costs

The Claimant has the benefit of cost protection for the purposes of s. 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If the Defendants or either of them wishes to pursue an application for costs they must submit a further request in writing to the Court together with a Schedule of Costs within 14 days of the date of this Order.

REASONS

Anonymity

(1) The Claimant is a child and this case concerns his education. There are compelling reasons to grant anonymity in this case, which is the minimum derogation from the principle of open justice. This extends also to the identity of the Academy Trust so as to prevent jigsaw identification.

Permission

(2) The Claimant has not demonstrated arguable grounds for Judicial Review which have a realistic prospect of success.

(3) The Claimant seeks to challenge the decision of the Second Defendant (‘the IRP’) recommending reconsideration of the decision by the First Defendant (‘the Academy’) permanently excluding him from school. The Claimant’s case is that the IRP should have gone further by quashing the decision and directing reconsideration. The Claimant seeks an order quashing the IRP’s decision and requiring them to reconvene a further hearing.

(4) The Claimant was permanently excluded from his school following his admitted involvement in a serious assault on another pupil. A transcript of CCTV footage states that the Claimant and three other youths followed the victim in the street. The Claimant initiated the violence by punching the victim in the face then kicking him. The other three youths all joined in the violence by punching and kicking. A weapon is seen but it is unclear from the transcript whether it was used. It was alleged that the assault was racially motivated.

(5) The decision to exclude was made by the Headteacher. The matter was then considered by the Academy’s Governing Body who declined to reinstate the Claimant. They were satisfied that the incident was a serious breach of the Behaviour Policy and that allowing the Claimant to remain in the school would seriously harm the educational welfare of others. The Claimant’s family requested a review by an IRP.

(6) The legal framework is set out in Section 51A of the Education Act 2002 and Part 4 of the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012. Statutory guidance is provided by the Secretary of State in ‘Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’ (‘the Exclusions Guidance’). Reg 27 provides that the relevant parties “must have regard to [the Exclusions Guidance]”

Ground 1 – The SEN Expert

(7) The Claimant’s family requested the attendance of an SEN Expert. Pursuant to Reg 25(1)(b) the Academy was under a duty, following the family’s request, to appoint an SEN expert to provide impartial advice to the IRP.

(8) Due to an administrative error, the Academy failed to appoint an SEN expert. The error was not discovered until the parties attended at the IRP hearing. This eventuality is provided for in the Exclusions Guidance at para 220, which states:

“Where a SEN expert has been requested but is not present, the panel should make parents aware of their right to request that the review is adjourned until a SEN expert can attend.”

The IRP hearing record shows that this was discussed at the start of the meeting. It states:

“It had been brought to the attention of the Panel that the appellants had requested the attendance of an independent SEN Expert, but that for whatever reason, this had not been acted upon. All parties agreed to continue with the hearing but if, during the giving of evidence by either side, it became apparent that the attendance of an SEN Expert was crucial to the case of either parties, then the meeting would adjourn to a future date.”

(9) The Claimant concedes that his family declined the offer of an adjournment and agreed to continue without an SEN expert present. His case is that they were placed in an invidious position. They did not want an adjournment because his litigation friend had had to take time of work to attend the hearing. The Claimant now says that the procedure was unlawful because an SEN expert had not been appointed.

(10) This ground has no arguable merit whatsoever. Regrettable though the error was, the appropriate remedy was an adjournment. The Claimant and his family were offered the opportunity to have a reconvened hearing with an SEN expert present but declined that offer. By making that offer, Reg 25(1)(b) was complied with. Put differently, by declining the offer of an adjournment the Claimant’s family effectively withdrew their request for an SEN expert to attend.

(11) In any event, a quashing order is a discretionary remedy. It would not be appropriate to grant relief where the Claimant and his family agreed to allow the hearing to proceed but now regret that decision and wish to have a second chance.

(12) There is discussion in the pleadings about the relevance of SEN advice to this case. The Defendants submit that there is no obvious connection between the Claimant’s needs and the grounds for exclusion (serious violence). There is no need for me to reach any view on this, but it may reasonably be inferred that the decision not to adjourn might have been different had the Claimant’s needs been more obviously central to the issues.

Ground 2 – Lack of impartiality / appearance of bias

(13) Pursuant to Reg 25(1)(a), it was the Academy’s responsibility to make arrangements for the review of the Governing Body’s decision by the IRP. Paras 161 to 188 of the Exclusions Guidance provides guidance on the appointment of panel members and (if required) a suitably qualified clerk. Para 165 states that care must be taken to avoid bias or the appearance of bias, and makes provision for the declaration of any conflicts of interest.

(14) The Claimant alleges that the IRP in this case did not appear ‘independent’ from the First Defendant, because the panel had been appointed by the Academy. He submits that the statutory duty to ‘make arrangements’ does not require that the Academy appoints the individual members of the panel, and could be satisfied by delegating that task to an independent third party. The Claimant submits that there was a breach of the common law duty of procedural fairness and/or Art 6 ECHR. The Claimant acknowledges that the Exclusions Guidance contemplates the appointment being made by the Academy, but submits that the Academy could have departed from that in this case.

(15) This ground has no arguable merit whatsoever. For the purposes of this decision, it is unnecessary to decide whether Art 6 is arguably engaged. The panel were appointed lawfully and in accordance with the Exclusions Guidance. There is no arguable grounds for a reasonable apprehension of bias merely because the Academy did not delegate the appointment to a third party. It was reasonable for the Academy to follow the Guidance, which ensures independence by the express requirement to consider bias and the appearance of bias when the appointment is made.

(16) The Claimant’s Statement of Facts and Grounds do not properly address the reason why it is said that the family were concerned about the independence of the panel. Their reasons are to be found in Para 26 of the supporting witness statement [CB/48]. Those reasons were (a) the family had requested that the members of the panel should all come from outside the city region; and (b) as one of the panel members was the headteacher of another school a few miles away, they suspected that she may know the Claimant’s headteacher.

(17) Neither of those are capable of showing a reasonable apprehension of bias. As to (a), it was not unreasonable for the panel to include members from the same the city region, and the family have not explained why they thought it necessary to exclude them. Indeed, there may be reasons why it is positively desirable to have members who have some local understanding. As to (b), the point has no substance. It has been comprehensively answered in Paras 25 to 28 of the witness statement served on behalf of the Academy.

Ground 3 – Irrational failure to quash the Academy’s decision

(18) The powers of the IRP are set out in Section 51A(4) of the Education Act 2002, which states:
“On an application [for a review], the review panel may:
(a) uphold the decision of the responsible body,
(b) recommend that the responsible body reconsiders the matter, or
(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.”
(19) In the present case, the IRP found that there had been a number of errors in the Governing Body’s decision. These are set out at Para 11 of the IRP’s hearing record. The first of these is expressed as a ‘concern’ around the process of the Governing Body’s own hearing, but stating that it was ‘not a clear or fundamental failure of process’. Under the heading of ‘irrationality’, the IRP considered that there had been a ‘major failure’ in that the Governing Body had not adequately considered how the Claimant’s actions fell under the Behaviour Policy. They concluded ‘The Panel felt that the Governors should revisit the case and seek to satisfy themselves as to whether the assault was racially motivated or not and make a decision accordingly’. Accordingly, they recommended reconsideration of the decision, but they did not quash the decision and direct reconsideration.

(20) The Claimant’s case is that it was irrational for the IRP merely to recommend reconsideration because the reasons they gave amounted to public law errors which were sufficient grounds to quash the decision.

(21) I am satisfied that the Claimant has not shown that this is an arguable ground for judicial review which has a realistic prospect of success. This is for two reasons.

(a) Even if public law errors are shown, it is not mandatory for an IRP to quash a decision and direct reconsideration. The IRP has a discretion. Where a recommendation for reconsideration is made, the expectation is that the Governing Body will follow it. (See R (CR) v Lambeth LBC [2014] EWHC 2461 (Admin) at [76]-[77].

(b) In any event, the substantive outcome would have been no better for the Claimant if the IRP had directed reconsideration rather than recommending it. The fact is that the Governing Body did reconsider their decision in the light of the IRP’s recommendations and they upheld it. There has been no challenge to their decision on reconsideration. If the Governing Body had failed to take account of the IRP’s views that would have been grounds to impugn their decision.

(22) This conclusion is reinforced by Part 12 of the Exclusions Guidance, and in particular by the opening words of Paras 254 and 255. Its provisions apply equally to both “where the panel directs or recommends that the governing body reconsider…”. It states: “It is important that the governing body conscientiously reconsiders whether the pupil should be reinstated, whether the panel has directed or merely recommended it to do so”.

(23) It is correct to note that Lang J made the observation in R (A) v Governing Body of XYZ School [2022] EWHC 1146 (Admin) at [24] that a recommendation for reconsideration is a “lesser power” but that does not mean that in a case where the recommendation has in fact been followed the outcome would have been substantially different. In either case, the governing body has an equal duty to “conscientiously reconsider” and any challenge to whether that standard has been met should be directed at the reconsideration decision.

(24) The only remaining material difference is that which is identified in the reply, namely that a consequence of a decision to quash may be that the Academy has to pay an ‘adjustment’ payment of £4,000. However, that would not be a lawful material consideration for the Governing Body on reconsideration and therefore has no arguable bearing on the outcome for the Claimant.

Delay

(25) Both Defendants submit that permission should be refused on grounds of delay in any event. I am satisfied that the Claimant has not shown arguable grounds for Judicial review and therefore do not consider it necessary to reach any conclusion on that issue.

Costs

(26) Both Defendants have made a request for an order that the Claimant pay the costs of preparing the Acknowledgement of Service and Summary Grounds, but neither has served a Schedule of Costs. I have made provision for any Schedule to be submitted within 14 days but the Defendants should bear in mind that the Claimant is legally aided and has costs protection.

Signed: Andrew Thomas KC
Date: 10th June 2025