Permanent exclusions: High Court focuses on the need for schools to engage in careful and proportionate decision-making

The judgement provides important guidance for schools considering permanent exclusions where a pupil has complex special educational needs and disabilities (SEND).

Facts of the case

The claimant referred to as Henry in the judgement, was a 10-year-old pupil with complex SEND. He was also the subject of an Education, Health and Care Plan (ECHP).

The incident leading to his exclusion involved Henry giving a replica knife to another pupil, who then simulated stabbing a pupil. School staff intervened and no physical injury occurred. Henry later asked a member of staff to return the knife to him. When the member of staff refused, he responded with expletives.

The school permanently excluded Henry on the basis that his conduct amounted to a serious breach of the behaviour policy and allowing him to return would seriously harm the education or welfare of him or others at the school. The decision was communicated to Henry’s family by a letter from the Principal; however, the letter did not set out the detailed reasoning or explain why permanent exclusion was necessary and proportionate.

A governor’s disciplinary panel hearing (GDP) took place to consider Henry’s permanent exclusion and upheld the permanent exclusion. A letter explaining this decision was sent to Henry’s mother however, a deliberation note was not provided at the time.

Henry’s mother sought an independent review following the decision from the GDP. The Independent Review Panel (IRP) criticised aspects of the GDP’s decision-making, including a lack of recorded minutes and the fact that not all possible sanctions appeared to have been considered. Nevertheless, the IRP upheld the GDP’s decision. Judicial review proceedings were then brought against the exclusion decision.

Legal Framework

Where a permanent exclusion is not overturned, the parent may seek an IRP. The IRP has three possible outcomes: it may uphold the decision, recommend that the responsible body reconsider it, or, where the decision is flawed applying judicial review principles, quash the decision and direct reconsideration.  Schools must have regard to the Secretary of State’s statutory guidance in excluding a pupil. The current DfE guidance applies to academies as well as maintained schools and sets out the responsibilities of headteachers, academy trusts, governing bodies and IRPs.

The fundamental statutory test remains that permanent exclusion should be used only where there has been a serious breach, or persistent breaches, of the behaviour policy and allowing the pupil to remain would seriously harm the education or welfare of the pupil or others at the school. The judgement emphasises that permanent exclusion is a measure of last resort.

The two grounds challenging the GDP’s decision

The claim proceeded on two grounds.

Ground 1 – inadequate assessment of proportionality

The central issue was whether the GDP had properly assessed whether permanent exclusion was proportionate. The High Court held that it was essential for the GDP’s contemporaneous reasons to demonstrate that it had carefully assessed whether the statutory threshold for permanent exclusion had been met. This required consideration of the likely impact of exclusion on the pupil; the nature and likelihood of the harm that might result if the pupil returned; and whether less severe measures could adequately protect against that harm. The GDP’s reasons did not demonstrate this and instead, the decision asserted that the statutory threshold had been met and that permanent exclusion was proportionate, without explaining why.  The judge identified potential alternatives, including a suspension or an off-site direction. Ground 1 therefore succeeded.

Ground 2 – inadequate reasons

Ground 2 concerned the adequacy of the reasons given by the Principal and the GDP.   The Court found that this ground ultimately overlapped with Ground 1. The absence of adequate reasoning meant that it was not possible to establish from the contemporaneous decision-making record that the necessary proportionality assessment had actually taken place.  Ground 2 also succeeded.

The judgement makes an important wider point about the value of reasons. Clear reasons are not simply a procedural formality: they allow the pupil and their family to understand why such a serious decision has been made and provide confidence that the decision maker has treated the case fairly.

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The role of the IRP

The judgement also provides important guidance on the relationship between the GDP and the IRP. Where a GDP’s decision is flawed when assessed against judicial review principles, the IRP can quash it and direct reconsideration. In this case, the IRP identified shortcomings in the GDP’s decision-making but nevertheless upheld the exclusion. The High Court indicated that where the GDP’s contemporaneous reasons and records do not demonstrate that it approached its task correctly, quashing will ordinarily be the appropriate outcome, unless the issue has become academic or it is highly likely that the same decision would have been reached in any event.

Does the guidance require updating?

An interesting aspect of the judgement is the judge’s observation that there are aspects of the DfE’s statutory guidance which may be unclear and which the DfE may wish to consider when the guidance is updated.

The judge identified three areas:

1. Proportionality: the guidance does not sufficiently explain the need for a GDP to assess the proportionality of refusing to reinstate a pupil;
2. The GDP’s own decision: the guidance could more clearly explain that the GDP must make its own decision on reinstatement, rather than simply reviewing whether the headteacher’s original decision was reasonable and fair; and
3. The IRP’s public law role: the guidance could more clearly explain the full scope of the public law principles which an IRP must apply when deciding whether a GDP’s decision should be quashed.

These observations are noteworthy given that the DfE’s revised exclusion guidance came into force on 26 June 2026, shortly before the judgement was handed down. The judgement therefore suggests that, notwithstanding the recent revision, further clarification may be desirable.

Lessons for Schools

The judgement provides a number of practical lessons for schools to take on board.  Firstly, the GDP should not approach its role as a procedural endorsement of the Principal’s decision. It must make its own decision on whether the pupil should be reinstated, based on the evidence and circumstances before it at the time of the hearing.

Secondly, proportionately should be expressly addressed. A GDP should consider the harm that is said to justify permanent exclusion, the likelihood of that harm, the impact of permanent exclusion on the pupil and whether any lesser measure could adequately manage the identified risk. This will be particularly important where the pupil has SEND or other vulnerabilities.

Thirdly, the minutes and decision letter matter. It should be possible to understand from the contemporaneous record what evidence the GDP considered, what issues it grappled with and why it concluded that permanent exclusion, rather than a lesser measure, was necessary. A bare conclusion that permanent exclusion is “proportionate” is unlikely to be sufficient.

Fourthly, schools should ensure that their exclusion procedures and training reflect the distinction between the Principal’s and GDP’s functions. Governors should understand that they are making a substantive decision on reinstatement and should be equipped to scrutinise the evidence and challenge the reasons for permanent exclusion.

Finally, the IRP should not be regarded as a mechanism for curing deficiencies in the GDP’s decision-making. If the GDP’s contemporaneous record fails to demonstrate that the correct legal questions were considered, the school may face difficulty defending the decision at IRP stage.

The central message from HVF v Lift Schools is therefore clear: permanent exclusion must be demonstrably based on a careful, evidence-based and proportionate assessment. For schools, our Education team can support you with our comprehensive Exclusion package containing 5 precedent policies; letters for each stage (Headteacher/GDP/IRP); and a model witness statement.

Do get in touch with our Education team, if we can support you with any SEND matters.