| SPOTLIGHT |
The High Court will today (21 May) hear a 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.
If a school’s governors uphold a pupil’s exclusion, a parent has a right to have this decision reviewed. However, legal aid for appeals before the IRP is out of scope.
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.
Barristers' chambers Garden Court Chambers noted: “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 Lord Chancellor has already amended guidance for Legal Aid Agency caseworkers to remove a categorical prohibition on granting ECF based on the risk of breaching Article 6 of the European Convention on Human Rights (ECHR), which ensures the right to a fair hearing.
However, Garden Court said: “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”.
The charity MIND is intervening in the case by way of written submissions and witness evidence.
The claimant is represented by Stephanie Harrison KC and Ollie Persey of Garden Court Chambers, instructed by Coram Children’s Legal Centre.
Sabrina Simpson, the claimant’s instructing solicitor, 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 and used only as a last resort.”
Rheian Davies, Head of Legal at Mind, said: “The consequences of school exclusions for young people are dire. We know that only 5% of those who finish their education following permanent exclusion pass their English and Maths GCSE’s. There is also a well-documented Pupil Referral Unit to prison pipeline, together with potentially catastrophic mental health implications.
“Mind believes that the exclusion process is systematically unfair and inherently discriminatory, often extremely traumatising and inaccessible to young people and their families. The biggest predictors of exclusion are poverty, race and disability. Mind’s own report Not Making The Grade highlights how pupils suffer racism and can even be punished for having mental health problems in school.
“Given the poverty profile of those children being excluded, they will unlikely be able to afford legal representation and engage effectively with proceedings whilst schools often have experienced barristers to represent them. Having access to legal aid would make a huge difference to these young people and their families when challenging the decision to exclude them.”
The hearing is to take place today and tomorrow (21-22 May 2024), and the judgment is expected to be reserved and handed down later this year.
Lottie Winson
