School exclusions – the Public Sector Equality Duty

The recent case of R (TZA) v A Secondary School [2023] has considered whether a school’s decision not to reinstate a permanently excluded pupil was unlawful on the basis of a failure to have due regard to the public sector equality duty under the Equality Act 2010, or because of inadequate reasoning.

Public Sector Equality Duty

Pursuant to the Equality Act 2010, public authorities must have due regard to the need to eliminate discrimination against, and advance equality of opportunity for, individuals with protected characteristics, when exercising their public functions. This means that reasonable steps should be taken to obtain information where it would be irrational for the public authority not to do so, and public authorities should be prepared to give reasons to substantiate their decision-making. This is referred to as the Public Sector Equality Duty (PSED).

As public authorities, academies and maintained schools are subject to the PSED.

Background

In May 2021, the headteacher of a secondary school (the school) made the decision to permanently exclude a 15-year-old student of Black Caribbean heritage (the child) from the school. The child had special educational needs.

The decision to permanently exclude the child was made following a ‘serious breach of discipline’. The child was alleged to have assaulted another student in the toilets on the school premises, and a further assault on a second student outside the school premises. Whilst the headteacher’s exclusions letter set out the reasons for the decision to permanently exclude the child, it did not set out any consideration of the PSED to which the school was subject.

A hearing was held with the Disciplinary Committee of the Governing of the School (the committee) the following month, and it was decided that the child would not be reinstated to the school. However, the matter was referred to the Independent Review Panel which considered that the committee’s decision raised concerns, and recommended that the decision be re-considered. Particularly, the committee was considered to have failed to consider elements of the child’s circumstances. However, ultimately, the committee again decided not to reinstate the child.

The child’s mother challenged the committees decision by way of judicial review. The grounds upon which the challenge relied were:

• The decision to permanently exclude the child was unlawful because the headteacher’s exclusion letter did not demonstrate any regard to the PSED, and therefore the decision not to reinstate the child was unlawful
• When reconsidering potential reinstatement, the committee did not adequately reason its decision not to reinstate the child.

The school accepted that the headteacher had failed to provide evidence that the PSED had been considered prior to making the decision to permanently exclude the child.

The court’s decision

In respect of the first ground of the claim, the court found that failure by the headteacher to provide documentary evidence, created before deciding to permanently exclude the child, of consideration of the PSED did not alone make the decision unlawful.

It is helpful to note that there is no specific legal requirement to provide documentary evidence of consideration of the PSED or to reference the PSED in the headteacher’s exclusion letter. In the absence of evidence that the headteacher had not had due regard to the PSED prior to making the permanent exclusion decision, this ground failed.

Further, the committee was provided with evidence, after the date of the headteacher’s exclusion letter, demonstrating that the PSED was considered by the headteacher. Given that the committee had experience of the headteacher, it was well placed to consider the credibility of the headteacher’s evidence after the date of the exclusion decision. In addition, the minutes of the committee meeting evidenced that the committee had considered PSED in deciding whether to reinstate the child both during its first meeting and when reconsidering the position.

The court also rejected the second ground of the claim as the concerns raised by the Independent Review Panel had either been adequately addressed by the committee, or did not need to be addressed or explained. Whilst the committee had confirmed that the child’s protected characteristics, and the PSED more broadly, had been considered, this does not mean that the committee was not entitled to favour the permanent exclusion having balanced the child’s protected characteristics against the alleged violent incidents in which the child had been involved.

Implications

The court’s decision in this case clearly demonstrates that, where a child has protected characteristics, including special educational needs, those characteristics do not prevent the headteacher from applying appropriate sanctions, including permanent exclusion when necessary.

However, schools should always be mindful of the need to consider the PSED and, whilst documentary evidence is not necessary as part of the headteacher’s exclusion letter, an evidence trail should be created to demonstrate, if necessary, that the PSED was given due regard prior to any decision to permanently exclude a child being made.

Schools should ensure that their exclusions policies clearly set out the need to give due regard to the PSED prior to an exclusion decision being made, and that training clearly sets out the expectations in terms of evidencing consideration of the PSED.