High Court quashes permanent exclusion of disabled child in landmark SEND judgment (5 August 2026)

Duncan Lewis Solicitors has successfully represented a child with complex special educational needs and disabilities (SEND) in a significant High Court challenge against his permanent exclusion from primary school.

In a judgment handed down on 5 August 2026, the High Court quashed the decision to permanently exclude "Henry", providing important guidance for schools, governors and Independent Review Panels (IRPs) on the lawful approach to permanent exclusion decisions. The judgment reinforces that permanent exclusion is a measure of last resort and that decision-makers must undertake a careful and proportionate assessment before concluding that a child should be permanently removed from school.

The case is one of very few permanent exclusions to reach a final hearing in a judicial review and establishes important case law. It is expected to have wider significance for schools, academy trusts and families across England, particularly where children with SEND are involved.

Background

The case concerned an incident in July 2025 in which Henry brought a replica butterfly knife to school and handed it to another child during an altercation. The school's Principal decided to permanently exclude Henry, and a Governors' Discipline Panel (GDP) declined to reinstate him. An Independent Review Panel (IRP) later upheld that decision by a majority, while criticising aspects of the GDP's recorded reasoning.

The High Court addressed the core principles underpinning the law on permanent exclusion, explaining that "the legitimate purpose of a permanent exclusion is not punishment but protection" and that permanent exclusion is a tool of last resort, to be used to "protect the pupil and/or other members of the school community from serious harm that is likely to result if the pupil remains at the school" (paras. 36–37).

The claim was brought on two grounds:

1. Inadequate assessment of proportionality.
2. Inadequate reasons.

Proportionality

The High Court's judgment explains that a GDP must undertake its own careful assessment of whether the statutory threshold for permanent exclusion is met; namely, whether allowing the pupil to return would seriously harm the education or welfare of the pupil or others at the school.

In particular, the Court held at paragraph 8:

"...in my judgment, it is essential that the GDP's contemporaneous reasons demonstrate that it has made its own careful assessment of whether the threshold conditions for permanent exclusion have been crossed, including the condition that allowing the pupil to return to the school 'would seriously harm the education or welfare' of the pupil or others at the school. Such an assessment will necessarily involve considerations of proportionality and, specifically, of:

(a) the likely impacts on the pupil of being unable to resume attending the school;

(b) the nature of the harms that could be suffered either by the pupil, or by other members of the school community, if the pupil were allowed to resume attending the school, and the degree of risk of those harms occurring; and

(c) the sufficiency or otherwise of any potential lesser measures under which the pupil would remain on the school's roll and ultimately be able to resume attending the school, for protecting against the contemplated harms.

Such lesser measures could, for example, include a fixed-term suspension or an "off-site direction" (a requirement that the pupil attend another setting for a fixed period before returning to the school)."

The High Court held that the reasons given by the Principal and the GDP did not show that these matters had been properly considered. In particular, the decision failed to provide a reasoned assessment of:

• the serious harm said to arise if Henry returned;
• the likelihood of that harm occurring;
• the impact of permanent exclusion on Henry, given his SEND; and
• whether alternatives to permanent exclusion had been adequately considered.

The importance of reasons

Ground 2 was allowed on largely the same basis as Ground 1.

The Judge added a further observation on the importance of providing reasons, noting at paragraph 56:

"...there is a further reason why the giving of reasons is important: it assists in providing individuals with a basis for having confidence in the decision making process and that they have been treated fairly. This may be of particular value to individuals who are of minority racial or other backgrounds, or who have faced discrimination in the past..."

Henry was a Black child attending a school where Black pupils formed a small minority. Although the Court found no evidence that race played a role in the exclusion decision, it held that the lack of reasoning was likely to have contributed to his mother's lack of confidence that he had been treated fairly.

Independent Review Panels (IRPs)

The High Court also provided important guidance on the role of Independent Review Panels.

Where a GDP's contemporaneous records do not demonstrate that it approached its task correctly, the Court observed that quashing the decision will generally be the appropriate outcome unless the matter has become academic or it is highly likely that the same outcome would have been reached.

The judgment also confirms that, in appropriate circumstances, it is possible to judicially review the decision of a Governors' Discipline Panel even where an Independent Review Panel has upheld the exclusion.

CCTV evidence

The Judge recorded "misgivings" about the fact that CCTV footage relied upon by the Principal was not shown to Henry's mother or to all members of the GDP because it also depicted other children.

The Court observed that schools should consider practical steps, such as blurring the faces of other pupils where appropriate, rather than withholding relevant evidence entirely where this would not impede proper consideration of the footage.

Does the statutory guidance need reviewing?

The judgment concludes by suggesting that the Department for Education may wish to review its statutory guidance on suspensions and permanent exclusions.

In particular, the Court identified the need for greater clarity regarding:

• the requirement for Governors' Discipline Panels to assess proportionality;
• the responsibility of GDPs to make their own decision on reinstatement based on the circumstances at the time of the hearing; and
• the public law principles to be applied by Independent Review Panels.

Significance of the judgment

This important judgment reinforces that schools must provide clear, contemporaneous reasons when deciding whether to permanently exclude a pupil and demonstrates the need for a careful, evidence-based assessment of proportionality, particularly where a child has special educational needs and disabilities.

The decision provides important guidance for schools, academy trusts, governors, local authorities and families, and is likely to significantly influence how permanent exclusion decisions are approached in future.

Duncan Lewis Solicitors

The successful claimant was represented by Duncan Lewis Solicitors' Public Law team.

The legal team was led by Angelo Monni, assisted by Nadia Roberts and Freya Wainstein.

Counsel for the claimant were Ollie Persey and Rosa Thomas of Garden Court Chambers' Education Law Team.

Duncan Lewis is one of the UK’s leading legal aid providers, which is multi award-winning and renowned for its exceptional legal services and commitment to justice. The company employs a team of highly skilled solicitors offering top-tier representation in 25 fields of law, and ranked as top tier by the Chambers and the Legal 500 legal guides, and as one of the top 250 law firms in the country by the Times. Duncan Lewis was crowned Law Firm of the Year at the Modern Law Awards 2023, further establishing its credentials as one of the leading law firms in the UK.

The firm’s Immigration and Public Law team is particularly renowned for handling complex and high profile cases involving human rights and asylum seekers. With landmark successes in cases such as Brook House, the Rwanda Challenge, and Manston House, Duncan Lewis continues to provide unparalleled legal representation, ensuring justice for the most vulnerable.