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

Legal aid for these appeals is currently out of scope, resulting in many children and parents either not applying for an IRP hearing or representing themselves in complex, emotionally charged proceedings.

The Claimant argues that Exceptional Case Funding (ECF) must be applicable in cases where permanent exclusion is alleged to be discriminatory, as this engages Convention rights. 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, the Claimant contends that the guidance remains opaque and insufficient, particularly regarding the engagement of Article 6 in discriminatory exclusion cases, thus impeding access to justice.

Children with Special Educational Needs and Disabilities (SEND) and those from certain racial backgrounds are disproportionately affected by permanent exclusions. Estimates suggest that 75-80% of children represented pro bono in exclusion cases have SEND, and government statistics indicate that Black Caribbean children are three times more likely to be excluded than their peers.

Permanent exclusions have severe consequences, often resulting in placement in Pupil Referral Units (PRUs) or Alternative Provision, leading to poor educational outcomes. Only 1% of excluded youth achieve five good GCSEs, including English and mathematics, according to the Institute for Public Policy Research. Excluded children are also vulnerable to Child Criminal Exploitation (CCE), such as County Lines drug trafficking, with a significant portion of children in Young Offender Institutions and young adults in prison having been permanently excluded from school.

Stephanie Harrison KC of Garden Court Chambers, leading counsel for the Claimant, emphasises the importance of establishing the right to public legal funding in school exclusion appeals, particularly those involving discrimination. Access to justice in these hearings could be transformative in holding schools accountable and addressing systemic discrimination.

Sabrina Simpson, the Claimant’s instructing solicitor, highlights the critical role of education in determining life chances and calls for legal aid to ensure fair and lawful school exclusions. The Claimant is represented by Stephanie Harrison KC and Ollie Persey of Garden Court Chambers, instructed by Sabrina Simpson of Coram Children’s Legal Centre.

The charity MIND has intervened in the case, presenting evidence on the adverse mental health impacts of permanent exclusion and the intersection of poverty and race on mental health and educational access. MIND is represented by Grace Brown and Nadia O’Mara 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, potentially setting a significant precedent for legal aid in school exclusion appeals.