The case was brought by Coram Children’s Legal Centre (‘CCLC’) and supported by the Equality and Human Rights Commission (‘EHRC’). Stephanie Harrison KC and Ollie Persey of Garden Court Chambers, instructed by Sabrina Simpson and Mital Raithatha of CCLC, represented the Claimant throughout this long running litigation, 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 our Joint Head of Chambers, Grace Brown and our Nadia O’Mara of Garden Court.
On 14 February 2025, the High Court recognised for the first time that the right to a fair hearing under Article 6 ECHR can be engaged in school exclusion appeals before an Independent Review Panel (‘IRP’). This opens up the possibility of legal aid being granted in a significant number of school exclusions appeals going forward.
The Claimant challenged the Legal Aid Agency’s refusal to grant legal aid in her son’s IRP hearing. The High Court rejected the submissions made by the Director of Legal Aid Casework (‘DLAC’) that IRP hearings do not engage Article 6 ECHR.
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 (‘ECF’) in cases concerning a disproportionate interference with the right to education under Article 2 of Protocol 1 ECHR.
The High Court held that an IRP appeal concerning substantive grounds of discrimination under the Equality Act 2010 (‘EA 2010’) constitutes a determination of civil rights and obligations engaging Article 6 ECHR. Although the Claimant was not successful in obtaining legal aid on the particular facts of the case, and in so far as it was based upon a failure to comply with the procedural rights under the Public Sector Equality Duty, the judgment provides clear guidance that practitioners can rely upon in future ECF applications where a school exclusion concerns substantive discrimination.
The Court heard evidence from the Claimant and MIND regarding the multiple adverse impacts of exclusion on the educational attainment, health, wellbeing, mental health and future prospects of children. Once excluded from school, many children are sent to Pupil Referral Units (‘PRUs’) where a child’s education prospects are diminished. Children outside mainstream education are also at increased risk of child criminal exploitation (‘CCE’), criminal prosecution, detention in youth offending institutions, homelessness and unemployment as they enter adulthood. Children from Black Caribbean and other ethnic backgrounds, Gypsy, Roma and Traveller children, children with special educational needs and disabilities (‘SEND’), and children in poverty (e.g. receiving free school meals) are all disproportionately excluded from school. As such, this judgment is highly significant in establishing a route to legal aid funding for a highly marginalised cohort of children.
Counsel and solicitors are members of the School Inclusion Project (‘SIP’). SIP will be providing training on how to make successful ECF applications following this important ruling. SIP has been shortlisted for this year’s The Halsbury Award for Rule of Law and Pro Bono & Social Responsibility Initiative of the Year at the Bar Pro Bono Awards.
Full judgment (PDF): R (CWJ) v Director of Legal Aid Casework & Lord Chancellor [2025] EWHC 306 (Admin)
