QUESTION: What considerations should we apply when considering permanent exclusion of a pupil with special educational needs?
ANSWER: A useful recent case is W (A Minor) v Independent Appeal Panel of London Borough of X and Governing Body of Y School  ELR 223, which looks at the meaning of ‘exceptional circumstances’.
M, a pupil with SEN, was a pupil at a school whose behaviour policy said that being in possession of a weapon would result in immediate, permanent exclusion.
The school secretary saw M with a knife, and asked him to give it to her, but he denied having it. When she said she would have to report him to the head, he said he was going to throw the knife away, and pretended to do so. She asked for it again, but he said he had thrown it away.
Later that day, M came to the staff room and told his tutor that he had found a knife and wanted to hand it in. The tutor pointed out that she had been with him at the time at which he said he found the knife, and that she had not seen him find it. They went to the secretary’s office, where M gave her the knife.
The head teacher thought that M should be immediately permanently excluded, but he referred M’s case to the governors’ disciplinary panel.
The governors said: ‘In view of the school’s behaviour management policy, which clearly states that being in possession of a weapon will result in permanent exclusion, the disciplinary committee of the governors upheld the head teacher’s decision permanently to exclude M’.
Independent appeal panel
M went to the independent appeal panel which said it could not be sure whether M had found the knife at school or whether he had brought it in, but was sure that he had a knife on his person, that when asked for it by a member of the staff he did not hand it over but pretended to throw it away, and that there was no evidence showing he intended to hand it in at that point.
The panel considered whether permanent exclusion was a reasonable response to M’s actions. It took into account, DfEE Circular 10/99 which says: ‘Other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements’, and confirmed the immediate, permanent exclusion, noting that there were no ‘special circumstances’ to justify departure from the decision.
M appealed to the High Court, which upheld the independent appeal panel’s decision. M went to the Court of Appeal.
Court of Appeal
M argued that there had been insufficient evidence before the independent appeal panel to justify its finding that M did not intend to hand the knife in when he first had an opportunity to do so, and that the independent appeal panel decision was irrational. These arguments failed.
Counsel for M referred to the circular, and argued that the independent appeal panel and the High Court Judge were wrong to find that the panel in using the words ‘special circumstances’ actually meant ‘most exceptional circumstances’ within the meaning of the circular. This argument failed.
The final decision
The Court of Appeal said: ‘That submission reflects some of the inappropriately detailed analysis of the documents that has occurred in this case.
‘Looking at the matter in the round, particularly against the background of the information that we do have about what happened at the panel hearing, we have not the slightest doubt that when that observation was recorded, it recorded a finding that, with the Department of Education’s circular well in mind, they could not rely on the considerations in that circular in order to depart from the decision that they had reached.’
Courts take exclusion seriously
Every case depends on its own facts. In this case, the Court of Appeal thought that the independent appeal panel’s decision that permanent exclusion was a reasonable response was a correct exercise of its discretion once the it had found the facts.
This does not mean, however, that if the facts in another case were similar, the decision would necessarily be the same.
This case does, however, as the Court of Appeal pointed out, indicate the seriousness with which the judicial structure of this country treats matters affecting the exclusion of pupils from schools.
Michael Segal is a district judge in the family division of the High Court