High Court hears landmark challenge to the lack of legal aid for school exclusion appeals

Today and tomorrow, 21-22 May 2024, the High Court will hear a significant challenge to the lack of legal aid for appeals before the Independent Review Panel (‘IRP’), the specialist independent body that reviews the lawfulness of permanent exclusions.

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 Convention rights will be engaged. If the Claimant can establish that Convention 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.

The Claimant has already won a significant concession after the Lord Chancellor amended his guidance for Legal Aid Agency caseworkers to remove a categorical prohibition on ECF being granted based on risk of Article 6 ECHR (the right to a fair hearing) breach. The amendments to the guidance were made in response to this litigation. However, the guidance is opaque and contains material omissions, including that Article 6 ECHR is engaged in IRP hearings where there are allegations that permanent exclusions are discriminatory. As such, the guidance is an impediment to access to justice.

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. A report by the Institute for Public Policy Research found that only “1 per cent of excluded young people achieve five good GCSEs including English and maths”. Excluded children 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.

Stephanie Harrison KC, lead counsel for the Claimant, stated:

“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 Exceptional Case Funding should be granted in Independent Review Panel (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, the Claimant’s instructing solicitor, commented on the importance of the issues raised in the case: 

“Education plays a key role in determining an individual's life chances. If we want a fair education for all and an end to systemic discrimination, it is imperative that legal aid is available as a safety net to ensure the most vulnerable are protected and to ensure school exclusions are lawful, fair and used only as a last resort.”

The Claimant is represented by Stephanie Harrison KC and Ollie Persey of Garden Court Chambers, instructed by Coram Children’s Legal Centre (‘CCLC’).

The charity MIND is intervening in the case by way of written submissions and witness evidence. Their intervention highlights the adverse impacts of permanent exclusion on children and young people’s mental health and draws upon the charity’s research on how issues of poverty and race impact upon children and young people’s mental health and access to education. MIND is represented by Grace Brown and Nadia O’Mara, both of Garden Court Chambers, instructed by MIND’s in-house legal team.

The judgment is expected to be reserved and handed down later this year.

Please see Coram's press release here.