A landmark case challenging the lack of legal aid for parents who question permanent exclusions could be “transformative in holding schools to account”, lawyers claim.
But it could also lead to a rise in challenges and leave schools feeling the need to pay for their own legal counsel.
High Court judges have granted permission for a test case arguing parents should get access to public funding to challenge exclusions that are potentially discriminatory.
At present parents cannot claim legal aid for independent review panel (IRP) hearings, which consider a governing board’s decision not to reinstate an excluded pupil.
Stephanie Harrison KC from Garden Court Chambers, lead counsel for the claimant, said “access to justice” could be “transformative in holding schools to account and in addressing the systemic discrimination in exclusions”.
She argues the legal aid “safety net”, called exceptional case funding (ECF), must apply in appeals where a discriminatory school exclusion is alleged.
The case is supported by the Equality and Human Rights Commission.
The High Court will consider whether two articles of the European Convention on Human Rights – the right to a fair hearing and the right to a private and family life – are engaged in such cases.
If so, these rights could be breached if the parent does not have ECF to seek legal advice and representation at the hearing, the claimant says.
Legal aid was previously available for advice and assistance but not representation in school exclusion cases, Coram Children’s Legal Centre said, but this was removed in 2012.
Parents can request a special educational needs (SEN) expert be present to give impartial advice to the panel.
Garden Court Chambers said frontline organisations estimate that 75 to 80 per cent of children it represents pro-bono have special educational needs and disabilities.
Black children more likely to face exclusions
They also highlight that children from black Caribbean backgrounds were nearly twice as likely to be excluded compared with their white British peers in 2021-22, according to government data.
In the 453 IRP hearings that year, 58 per cent of exclusions were upheld.
Sabrina Simpson, an instructing solicitor at Coram, said pro-bono support for exclusion appeals “far outstrips supply”.
“We are hopeful that we can establish a precedent that will mean that legal aid practitioners can take on these cases, which could increase access to justice for children and young people who desperately need legal representation.”
Margaret Mulholland, a SEND and inclusion specialist at ASCL, the leaders’ union, said this case could lead to a small increase in the number of appeals heard by the IRP.
“It’s important to remember that no school leader ever wants to exclude a pupil and it is an action taken as a last resort.”
Laura Berman, a partner at Stone King, said there would “inevitably” be more challenges, but it was unlikely “to open the floodgates”.
“If you have public funding to engage a lawyer, obviously it’s going to put you in a better position and give you confidence.”
Barney Angliss, a SEND specialist, said if ECF was made available, there was “no doubt” that schools would also seek legal representation because governors would support their school’s leadership and staff by presenting their case “as firmly as they can”.
Schools’ legal representation would have to be funded from their budgets at a time when many were close to returning a deficit.
The Ministry of Justice was approached for comment.
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