School behaviour policies and disciplinary sanctions

In the case of R (on the application of EBB) -v- Gorse Academies Trust the High Courts dismissed an application for judicial review seeking to challenge a school’s sanctions as being unlawful and in breach of the Article 8 European Convention on Human Rights. This case is of interest for those who are in the process of reviewing their behaviour policies ahead of the new academic year and also to consider the court’s treatment of complaints arising out of the application of school sanctions, in particular that of isolation.

The facts

The matters relate to the John Smeaton Academy in Leeds which had been rated inadequate by Ofsted in 2019. Having been rebrokered, it was operated from 1 September 2021 by the Gorse Academy Trust. In an effort to address the issues that had led to the inadequate rating, the Trust put in place a new Principal who had experience of running other schools within its Trust. A detailed plan around behavioural expectations was applied. Three years after the Trust took over the school, Ofsted returned and it was rated good in all areas with a particular note that there had been a ‘startling transformation’.  

The judicial review was bought by three of the pupils of the school and dealt with by way of a rolled up hearing. Each were anonymised to protect their identity. All had engaged in various acts of persistent breaches of the school’s behaviour policy. Of the three, one was known to have SEND. The school applied its behaviour policy with various sanctions including isolation, an alternative to suspension. The pupils were from varying age groups within the school’s community but their behaviour was consistent with a variety of defiance and disruptive behaviour, also varying in degrees of severity. Fundamentally, they all had failed to reach the behavioural standards set. 

The grounds for challenge

There were five grounds brought forward and they included as follows:

1. Breach of the statutory duty imposed by section 91 of the Education and Inspections Act 2006 by failing to consider whether repeatedly imposing the sanction of ‘isolation’ on the Claimant’s constituted a proportionate, and otherwise reasonable, punishment.  
2. Failure to follow the non-statutory guidance behaviour in schools: advise the headteachers and school staff issued by the Department for Education in February 2024.  
3. Breach of the statutory duty imposed by section 91 of the Education and Inspections Act 2006, by imposing disproportionate and otherwise unreasonable disciplinary penalties on the Claimants.  
4. Breach of the claimants’ rights to private life protected by Article 8 ECHR taken with section 6(1) of the Human Rights Act 1998.
5. Inflexible application of the school’s discipline policy to Claimant 3.

The Court dismissed all grounds.  

The judgment provides as a useful analysis of the power of a school to issue a disciplinary penalty. A “disciplinary penalty” means a penalty imposed on a pupil, by any school at which education is provided for him, where his conduct falls below the standard which could reasonably be expected of him (whether because he fails to follow a rule enforced at any such school or an institution given to him by a member of its staff or for any other reason).  

This is a statutory definition given by section 90 of the Education and Inspections Act 2006 (‘the Act’). In the application of a disciplinary penalty, it will be lawful if three conditions are satisfied as set out at section 91(3), (4) and (5) of the Act. These conditions are as follows:

• First condition is that the imposition of the penalty on the pupil -  
  • is not a breach of any statutory requirement or prohibition, and 
  • is reasonable in all the circumstances.
• The second condition is that the decision to impose the penalty on the pupil was made -
  • by any paid member of staff of the school, except in circumstances where the headteacher has determined that the member of staff is not permitted to impose the penalty on the pupil, or
  • by any other member of the staff of the school, in circumstances where the headteacher has authorised a member of staff to impose the penalty on the pupil and it was reasonable for the headteacher to do so.
• The third condition is that the decision to impose the penalty was made, and any action taken on behalf of the school to implement the decision was taken –
  • on the premises of the school or
  • elsewhere at the time when the pupils under the lawful control or charge of a member of staff of the school.
• What amounts to ‘reasonable in all the circumstances’ for the purposes of the first condition is set down at section 91(6) of the Act which requires the following to be taken into account –
  • whether the imposition of the penalty constitutes a proportionate punishment in the circumstances of the case, and 
  • any special circumstances relevant to its imposition on the pupil which are known to the person imposing it (or of which he ought reasonably to be aware) including in particular –
    • the pupils age,
    • any special educational needs he may have,
    • any disability he may have,
    • any religious requirements affecting him.

The court found that section 91 provided a substantive test across the three conditions which had to be met by the school. It did not impose a particular duty to be met. The argument that the imposition of repeated sanctions for persistent misconduct was inherently unreasonable was not accept, and there should be an expectation that sanctions will be escalated to reinforce the behaviour standards required. On the issue of proportionality, the court had no evidence before it to show that the sanction of isolation had a particular impact which would render it disproportionate. Furthermore, there was no evidence to demonstrate that the repeated use of isolation resulted in the Claimants being unable to progress. On the assertion that the school should have considered alternatives to isolation, the court struggled to identify one, as it was already an alternative to suspension.

The court did not find that Article 8 had been engaged however, if it had, the interference would have been proportionate. This is because schools had to effectively manage behaviour for all members of the school community, including the other pupils attending and staff working at the establishment.  

The court was reluctant to go behind the professional judgement of those at school with regard to the determination of the appropriate sanction in the circumstances and concluded that those sanctions which had been complained of had been lawful, proportionate and professionally justified.

Concluding thoughts

As we continue to see a rise on the levels of poor behaviour and sanctions required to effectively manage the school environment, it is important that school leaders remain alive to the legal framework that permits them to issue disciplinary penalty. In particular, school leaders should refresh on the legal conditions set out above. That should be translated into the schools behaviour policy to ensure all staff understand the parameters within which they operate on issuing sanctions, and also to manage parents and pupils clearly on what school can lawfully do to enforcement its behavioural standards. Those in governance should also be clear on this so they look at complaints and exclusion reviews through this lens.

It is also important for those who are seeking to challenge disciplinary penalties that the school will be judged by the application of the law and the professional judgement of the team within the school, including the various strategies set out within the behaviour policy. Whilst any parent is entitled to activate the complaints procedure, a statutory policy required by all schools, they should note the courts position in this case and, if they ultimately cannot reconcile their view of what should be the appropriate disciplinary action against the policy of the school, they will need to give serious consideration to identifying an alternative setting which better aligns with their views. 

Joe Orme-Paul is a partner at Hill Dickinson.