Coram Children’s Legal Centre (CCLC) is today in the High Court at the start of a vital case that challenges the current lack of legal aid available to families appealing against decisions to permanently exclude their child from school.
CCLC has instructed Stephanie Harrison KC and Ollie Persey from Garden Court Chambers to represent the Claimant, who is supported by the Equality and Human Rights Commission (EHRC), against the Director of Legal Aid Casework and the Lord Chancellor. The charity MIND have also intervened in the case, on the basis that it raises critical issues relevant to other children and families.
Currently, families of children facing permanent school exclusion are not able to access legal support in navigating the school exclusions process, as exclusions do not fall within the scope of legal aid. Under the current system, exclusion appeals are heard by the Independent Review Panel (IRP), and legal aid for such appeals is considered to be out of scope – unavailable to families facing exclusion.
Today’s 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 hearing); 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 (right to education).
School exclusion hearings are legally complicated, with parents and carers typically given a school exclusion pack, often hundreds of pages long, a few days before the hearing. The Independent Review Panel, who consider appeals, is required to apply complex judicial review principles when making its decision. This means thousands of children are facing school exclusions every year without legal representation and are at risk of having an unfair hearing, with potentially life changing consequences.
School exclusion can have a catastrophic impact on the education, health, wellbeing, mental health and future prospects of children. Once excluded from school, many children are sent to Pupil Referral Units (PRU) where most children do not obtain GCSEs. Children outside mainstream education are also at increased risk of child criminal exploitation (CCE), detention in youth offending institutions, homelessness and unemployment as they enter adulthood. Children from Black ethnicity backgrounds, Gypsy, Roma and Traveller children and children with special educational needs and disabilities (SEND) are disproportionately excluded from school.
Mital Raithatha, senior solicitor at CCLC said: “We believe this case raises critical issues relevant to other children their families, and the wider society. The school exclusion process involves families having to engage with complicated legal systems including public law principles and discrimination law. This case is vital in highlighting the importance of access to justice, through publicly funded legal advice and representation for children who are structurally disadvantaged by their race and/or disability and permanently excluded from school.”
Sabrina Simpson, solicitor at CCLC, said: “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, proportionate and used only as a last resort.”
Stephanie Harrison KC, lead counsel for the Claimant, said: “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.”
The Claimant is represented by Stephanie Harrison KC and Ollie Persey, both of Garden Court Chambers, instructed by Sabrina Simpson and Mital Raithatha of Coram Children’s Legal Centre (‘CCLC’). The charity MIND is also intervening in the case. MIND is represented by Grace Brown and Nadia O’Mara, both of Garden Court Chambers, instructed by MIND’s in-house legal team.
For further information, see CCLC’s explanation of the wider context of the case