The High Court has today opened up the possibility of legal aid being granted in a significant number of school exclusions appeals following a case brought by Coram Children’s Legal Centre (CCLC).
The claimant, supported by CCLC, had challenged the Legal Aid Agency’s refusal to grant legal aid for her excluded son’s Independent Review Panel (IRP) hearing. The High Court rejected the submissions made by the Agency that IRP hearings do not engage Article 6 of the European Convention on Human Rights (ECHR)which protects individuals’ right to a fair trial or hearing when a public authority is making a decision that has an impact on their civil rights or obligations.
Ahead of the hearing, and in response to this litigation, the Lord Chancellor amended her policy to remove a categorical ban on legal aid being granted and to provide for exceptional case funding in cases concerning a disproportionate interference with the right to education under the ECHR.
Today’s decision by the High Court has determined that an IRP appeal concerning substantive grounds of discrimination under the Equality Act 2010 constitutes “a determination of civil rights and obligations engaging Article 6 of the ECHR”.
Although the claimant was not successful in obtaining legal aid on the particular facts of the case, the judgment provides clear guidance that practitioners can rely upon in future exceptional case funding applications where a school exclusion concerns substantive discrimination.
Mital Raithatha, Head of Education Law at CCLC, said: “Many families are often left seeking to challenge permanent exclusion decisions without any legal advice or support. This is despite the significant adverse impact that an exclusion can have on a child’s life chances. This case has been vital in highlighting the importance of families having access to publicly funded legal advice for children who are structurally and often disadvantaged by reason of their race, disability and/or social class in schools and when permanently excluded from school.”
Sabrina Simpson, the instructing solicitor at CCLC, said: “No one wins when a child is excluded from school. Today’s decision by Mr Justice Lavender has provided a clear path to assisting children and families accessing justice when challenging a permanent school exclusion by receiving legal aid funding, which is a vital safety net to ensuring a fair education for all and an end to systemic discrimination in education.”
The case was brought by Coram Children’s Legal Centre and supported by the Equality and Human Rights Commission. Stephanie Harrison KC and Ollie Persey from Garden Court Chambers, instructed by Sabrina Simpson and Mital Raithatha of CCLC, represented the claimant, with the claim having been issued in 2022. MIND intervened ahead of the two-day final hearing to highlight the impact on children’s mental health of permanent exclusion. MIND was represented by Grace Brown and Nadia O’Mara of Garden Court Chambers.
If you would like support with a school exclusion, please visit https://schoolexclusionshub.org.uk/referrals/.