Stephanie Harrison KC and Ollie Persey of the Garden Court Chambers Education Law Team, instructed by Sabrina Simpson and assisted by trainee Abigail Hands of Coram Children’s Legal Centre.
The claim is supported by the Equality and Human Rights Commission.
From Left to Right: Sabrina Simpson (CCLC), Stephanie Harrison KC, Ollie Persey, Abigail Hands (CCLC), Yara Ali-Adib (EHRC) outside the Royal Courts of Justice.
At an oral hearing in the High Court on 21 November 2023, Mr Justice Morris granted the Claimant permission to challenge the lack of legal aid for appeals before the Independent Review Panel (‘IRP’), the specialist independent body that reviews the lawfulness of permanent exclusions. The Claimant is supported by the Equality and Human Rights Commission (‘EHRC’) as her case raises issues of significant wider public importance.
Legal aid for appeals before the IRP is out of scope. Most children and parents either do not apply for an IRP hearing or appear as litigants in person in highly complex and emotionally charged proceedings where the IRP applies judicial review principles. It is the Claimant’s case that the legal aid safety net, Exceptional Case Funding (‘ECF’), must apply in appeals where there is an allegation that a permanent exclusion is discriminatory as Article 6 ECHR (the right to a fair hearing) and/or Article 8 ECHR (the right to a private and family life) are engaged. If the Claimant can establish that those rights are engaged, it follows that there is a risk that those rights will be breached without ECF being granted for legal advice and representation to enable her, and others, to challenge discriminatory school exclusions.
There is systemic discrimination in school exclusions. Children and young people with Special Educational Needs and Disabilities (‘SEND’) and/or from certain racial groups are disproportionately permanently excluded from school. Frontline organisations estimate that 75-80% of the children they represent on a pro bono basis in school exclusions have SEND and the government’s statistics show that children from Black Caribbean backgrounds are three times more likely to be excluded than their peers.
The consequences of a permanent exclusion are profound. Permanently excluded children and young people are generally sent to a Pupil Referral Unit (‘PRU’) or Alternative Provision. Once outside of mainstream education, they are likely to have poor educational outcomes and/or to fall outside of the educational system altogether. They are also vulnerable to becoming victims of Child Criminal Exploitation (‘CCE’), including County Lines drug running. 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.
Following last week’s hearing, the High Court will hear full argument on whether Articles 6 and/or 8 ECHR are engaged in IRP appeals concerning discrimination. After the Claimant issued her case, the Lord Chancellor amended his guidance on ECF to remove a categorical prohibition on Article 6 ECHR applying to IRP appeals. The Lord Chancellor now accepts that Article 6 ECHR will be engaged in some cases before the IRP, however, the guidance remains unclear. At the oral hearing, both the Director of Legal Aid Casework (‘DLAC’) and the Lord Chancellor accepted in principle that the right not to be discriminated against in the sphere of education was a civil right that attracted protection under Article 6 ECHR. The Claimant will continue to press for further amendments to the Lord Chancellor’s guidance.
Stephanie Harrison KC, lead counsel for the Claimant and Joint Head of Garden Court Chambers, commented that:
“Establishing the right to public legal funding in school exclusion appeals is the number one priority for the School Inclusion Project. This case has the potential to establish that ECF should be granted in IRP appeals that concern discrimination. Access to justice in IRP hearings could be transformative in holding schools to account and in addressing the systemic discrimination in school exclusions.”
Sabrina Simpson, instructing solicitor at Coram Children’s Legal Centre, added:
“We are delighted that the High Court has granted permission to proceed with this vital case. Demand for pro bono support in school exclusion appeals far outstrips supply. The family who was first represented by Just for Kids Law at the Independent Review Panel informed us if they did not take on their case, there was no one else to help. We are hopeful that we can establish a precedent that will mean that legal aid practitioners can take on these cases, which could increase access to justice for children and young people who desperately need legal representation.”
Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:
“We welcome this decision by the High Court to grant permission to challenge the lack of legal aid for appeals before the Independent Review Panel.
Justice and equality are vital in education. School exclusions can impact the life chances of a person throughout later life, and we believe clarification of the law in this area is vital, hence our involvement.
The outcome of this case will play a crucial role in establishing the possibility of providing legal aid and representation for children during hearings, enabling them to challenge discriminatory decisions effectively."
The Claimant is represented by Stephanie Harrison KC and Ollie Persey of the Garden Court Chambers Education Law Team. They are instructed by Sabrina Simpson and assisted by trainee Abigail Hands of Coram Children’s Legal Centre. The claim is supported by the Equality and Human Rights Commission.
Garden Court Chambers are the coordinators of the School Inclusion Project (‘SIP’), in partnership with Coram Children’s Legal Centre, the Communities Empowerment Network and the Law Centres Network. SIP is a forum to facilitate referrals for legal representation in school exclusion hearings and related legal proceedings, share knowledge and best practice, and to identify and address systemic issues.
The next SIP policy meeting, which is open to lawyers, campaigners, policy professionals and others working to advance the rights of children who experience discriminatory treatment at school, will be a hybrid meeting held at 6pm 7 February 2024 at Garden Court Chambers. Joining instructions will be made available nearer the time.
