Coram Children’s Legal Centre (CCLC) is in the High Court today and tomorrow (May 21-22) at the start of a vital case against the Director of Legal Aid Casework and the Lord Chancellor. The Claimant is represented by Stephanie Harrison KC and Ollie Persey of Garden Court Chambers, with the support of the Equality and Human Rights Commission (EHRC). In addition, the charity Mind has intervened in the case on the basis it raises critical issues relevant to other children and families.
Please see the Coram website for the news item on the case, then read on for additional information about the case and the wider context.
What is CCLC challenging in the High Court?
CCLC is challenging the lack of legal aid available to families appealing permanent school exclusions. In the 2021/22 academic year in England, there were 6,500 permanent exclusions. Currently, children and families are denied public funding for legal representation before the Independent Review Panel (IRP), the specialist independent body that reviews the lawfulness of permanent exclusions.
The Claimant challenges the Director of Legal Aid Casework’s decision to refuse Exceptional Case Funding in this individual case as well as the Lord Chancellor’s Exceptional Case Funding (ECF) Guidance.
CCLC is challenging the lack of legal aid available to families appealing permanent school exclusions. In the 2021/22 academic year in England, there were 6,500 permanent exclusions. Currently, children and families are denied public funding for legal representation before the Independent Review Panel (IRP), the specialist independent body that reviews the lawfulness of permanent exclusions.
The Claimant challenges the Director of Legal Aid Casework’s decision to refuse Exceptional Case Funding in this individual case as well as the Lord Chancellor’s Exceptional Case Funding (ECF) Guidance.
What is the Independent Review Panel?
When appealing a child’s permanent exclusion, up to three hearings may be held. The Independent Review Panel (IRP) is the second stage.
- School Governing Board: Initially, the school governing board reviews the decision. This stage is often seen as ineffective, as governors rarely overturn a headteacher’s decision to permanently exclude a pupil. According to a 2019 Justice report, governing boards upheld headteachers’ exclusion decisions 95% or more of the time among the 90 local authorities from which they received data.
- Independent Review Panel: If the governing board decides to uphold the decision to permanently exclude, the pupil’s parent or guardian has the option of appealing to the IRP. The panel’s role is to review the governing board’s decision not to reinstate a permanently excluded pupil, determining whether a pupil’s exclusion was lawful, reasonable, and procedurally fair. The IRP cannot change the decision or reinstate the pupil because it is a review panel rather than an appeal body. Therefore, it can only:
- uphold the decision;
- recommend that the governing body reconsiders the decision; or
- quash the decision and direct the governing body to reconsider the decision.
- School Governing Board reconsideration: When an IRP directs or recommends a pupil’s reinstatement, the governing board has the opportunity to look at the pupil’s reinstatement afresh.
When appealing a child’s permanent exclusion, up to three hearings may be held. The Independent Review Panel (IRP) is the second stage.
- School Governing Board: Initially, the school governing board reviews the decision. This stage is often seen as ineffective, as governors rarely overturn a headteacher’s decision to permanently exclude a pupil. According to a 2019 Justice report, governing boards upheld headteachers’ exclusion decisions 95% or more of the time among the 90 local authorities from which they received data.
- Independent Review Panel: If the governing board decides to uphold the decision to permanently exclude, the pupil’s parent or guardian has the option of appealing to the IRP. The panel’s role is to review the governing board’s decision not to reinstate a permanently excluded pupil, determining whether a pupil’s exclusion was lawful, reasonable, and procedurally fair. The IRP cannot change the decision or reinstate the pupil because it is a review panel rather than an appeal body. Therefore, it can only:
- uphold the decision;
- recommend that the governing body reconsiders the decision; or
- quash the decision and direct the governing body to reconsider the decision.
- School Governing Board reconsideration: When an IRP directs or recommends a pupil’s reinstatement, the governing board has the opportunity to look at the pupil’s reinstatement afresh.
What is the key issue in this legal challenge?
The claim argues that the legal aid safety net, known as exceptional case funding (ECF), must be available in all appeals where there is an allegation that a permanent exclusion is discriminatory and engages human rights, namely:
- Article 6 of the ECHR (the right to a fair trial);
- Article 8 of the ECHR (the right to a private and family life); and/or
- Article 14 of the ECHR (the right to be protected from discrimination); and
- Article 2 Protocol 1 of the ECHR (the right to education).
The key issue is whether Article 6 (the right to a fair trial) ECHR or other Convention rights were engaged in the Claimant’s Independent Review Panel hearing.
The claim argues that the legal aid safety net, known as exceptional case funding (ECF), must be available in all appeals where there is an allegation that a permanent exclusion is discriminatory and engages human rights, namely:
- Article 6 of the ECHR (the right to a fair trial);
- Article 8 of the ECHR (the right to a private and family life); and/or
- Article 14 of the ECHR (the right to be protected from discrimination); and
- Article 2 Protocol 1 of the ECHR (the right to education).
The key issue is whether Article 6 (the right to a fair trial) ECHR or other Convention rights were engaged in the Claimant’s Independent Review Panel hearing.
What is Exceptional Case Funding?
Legal aid can help with the costs of seeking legal advice and representation in specific areas of law and issues that are “in scope”, or fall within its defined remit. However, if a case is outside the scope, the Legal Aid Agency may provide Exceptional Case Funding (ECF).
ECF is known as a safety net for cases that fall outside of the categories where legal aid is available, where there is a risk of discrimination under the European Convention on Human Rights (ECHR). Further information can be found here.
Legal aid can help with the costs of seeking legal advice and representation in specific areas of law and issues that are “in scope”, or fall within its defined remit. However, if a case is outside the scope, the Legal Aid Agency may provide Exceptional Case Funding (ECF).
ECF is known as a safety net for cases that fall outside of the categories where legal aid is available, where there is a risk of discrimination under the European Convention on Human Rights (ECHR). Further information can be found here.
Why is Exceptional Case Funding needed in this area?
Legal aid was previously available for school exclusion cases, but it was removed under the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO).
Currently, children and their families face a lack of support as they navigate the complex school exclusion process. Aside from a few charitable organisations, such as CCLC, which provide limited assistance, there is little help available.
The school exclusions process involves consideration of complex public law principles that, in our view, require legal expertise to navigate effectively. Through our work, we have advised parents with special needs or parents for whom English is not their first language, who are expected to represent themselves. These parents, typically lacking legal expertise, receive a school exclusion pack – often hundreds of pages long – a few days before the hearing and are then expected to argue why the exclusion was unlawful.
Legal aid was previously available for school exclusion cases, but it was removed under the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO).
Currently, children and their families face a lack of support as they navigate the complex school exclusion process. Aside from a few charitable organisations, such as CCLC, which provide limited assistance, there is little help available.
The school exclusions process involves consideration of complex public law principles that, in our view, require legal expertise to navigate effectively. Through our work, we have advised parents with special needs or parents for whom English is not their first language, who are expected to represent themselves. These parents, typically lacking legal expertise, receive a school exclusion pack – often hundreds of pages long – a few days before the hearing and are then expected to argue why the exclusion was unlawful.
Systemic discrimination in school exclusions
Marginalised groups are significantly overrepresented in school exclusions. Children from Black ethnic backgrounds, Gypsy, Roma, and Traveller communities, and those with Special Educational Needs and Disabilities (SEND) are disproportionately excluded from school. (See SEND figures here and ethnicity figures here). This situation puts the most vulnerable children in society at risk of exclusion without adequate scrutiny to ensure that the decision is lawful and free from discrimination.
Discrimination based on race and SEND is a common issue, especially when they intersect. Intersectionality recognises that an individual can belong to multiple social categories and thus have more or fewer privileges than others, such as a Black or mixed ethnicity child with ADHD who receives Free School Meals. In several instances, we’ve observed Black and mixed-race Black children being diagnosed late with SEND, such as Autism/ADHD, even though these needs were apparent from a young age. If diagnosed earlier, there would have been more time for early intervention and support to aid the child in reaching their full potential. However, these children were instead permanently excluded and sent to Pupil Referral Units.
Legal aid must be available as a safety net to protect the most vulnerable and to ensure that school exclusions are only used as a last resort. Without legal aid, disproportionate and systemic inequalities will inevitably persist.
Marginalised groups are significantly overrepresented in school exclusions. Children from Black ethnic backgrounds, Gypsy, Roma, and Traveller communities, and those with Special Educational Needs and Disabilities (SEND) are disproportionately excluded from school. (See SEND figures here and ethnicity figures here). This situation puts the most vulnerable children in society at risk of exclusion without adequate scrutiny to ensure that the decision is lawful and free from discrimination.
Discrimination based on race and SEND is a common issue, especially when they intersect. Intersectionality recognises that an individual can belong to multiple social categories and thus have more or fewer privileges than others, such as a Black or mixed ethnicity child with ADHD who receives Free School Meals. In several instances, we’ve observed Black and mixed-race Black children being diagnosed late with SEND, such as Autism/ADHD, even though these needs were apparent from a young age. If diagnosed earlier, there would have been more time for early intervention and support to aid the child in reaching their full potential. However, these children were instead permanently excluded and sent to Pupil Referral Units.
Legal aid must be available as a safety net to protect the most vulnerable and to ensure that school exclusions are only used as a last resort. Without legal aid, disproportionate and systemic inequalities will inevitably persist.
Lifelong impact of permanent exclusion
Education is a key determinant of a child’s life chances and future success. Permanent exclusion has a catastrophic impact on children’s education, health, well-being, and future prospects.
The Timpson Review of School Exclusion identified that 7% of children who were permanently excluded, and 18% of children who received multiple fixed-period exclusions, achieved ‘good’ passes in English and math GCSEs in 2015/16. The Timpson review also highlighted that exclusion is a marker for being at higher risk of becoming a victim or perpetrator of crime. There is a well-documented PRU-to-prison pipeline, with 85% of children in Young Offender Institutions and 58% of young adults in prison having been permanently excluded from school. Additionally, statistics from the Office for National Statistics reveal that self-reported gang members aged 10-15 are 5.5 times more likely to have experienced exclusion compared to their peers.
According to a report by the IPPR, each excluded child is estimated to cost the state £370,000 per young person across their lifetime in education, benefits, healthcare, and criminal justice costs.
Children who face permanent exclusion often find themselves placed in a Pupil Referral Unit (PRU), which serves as an alternative educational provision for those unable to attend mainstream schooling. Children we’ve assisted shared their experiences of not being able to pursue GCSEs in subjects crucial for their career aspirations, such as arts, sports, and advanced mathematics papers, due to attending a PRU. When we engage with parents who have to consider a PRU placement, they express concerns that their child’s educational opportunities may be severely limited, understandably so.
Education is a key determinant of a child’s life chances and future success. Permanent exclusion has a catastrophic impact on children’s education, health, well-being, and future prospects.
The Timpson Review of School Exclusion identified that 7% of children who were permanently excluded, and 18% of children who received multiple fixed-period exclusions, achieved ‘good’ passes in English and math GCSEs in 2015/16. The Timpson review also highlighted that exclusion is a marker for being at higher risk of becoming a victim or perpetrator of crime. There is a well-documented PRU-to-prison pipeline, with 85% of children in Young Offender Institutions and 58% of young adults in prison having been permanently excluded from school. Additionally, statistics from the Office for National Statistics reveal that self-reported gang members aged 10-15 are 5.5 times more likely to have experienced exclusion compared to their peers.
According to a report by the IPPR, each excluded child is estimated to cost the state £370,000 per young person across their lifetime in education, benefits, healthcare, and criminal justice costs.
Children who face permanent exclusion often find themselves placed in a Pupil Referral Unit (PRU), which serves as an alternative educational provision for those unable to attend mainstream schooling. Children we’ve assisted shared their experiences of not being able to pursue GCSEs in subjects crucial for their career aspirations, such as arts, sports, and advanced mathematics papers, due to attending a PRU. When we engage with parents who have to consider a PRU placement, they express concerns that their child’s educational opportunities may be severely limited, understandably so.
