CWJ, R (on the application of) v Director of Legal Aid Casework & Anor
| Court | King's Bench Division (Administrative Court) |
| Judge | Mr Justice Lavender |
| Neutral Citation | [2025] EWHC 306 (Admin) |
| Date | 14 February 2025 |
| Year | 2025 |
| Counsel | Stephanie Harrison Kc,Ollie Persey,Malcolm Birdling,Joshua Pemberton,Shane Sibbel,Grace Brown,Nadia O’mara |
Neutral Citation Number: [2025] EWHC 306 (Admin)
Case No: AC-2022-LON-002669
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14/02/2025
Before :
MR JUSTICE LAVENDER
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Between :
REX
on the application of
CWJ Claimant
- and -
(1) DIRECTOR OF LEGAL AID CASEWORK
(2) LORD CHANCELLOR Defendants
- and -
MIND Intervener
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Stephanie Harrison KC and Ollie Persey (instructed by Coram Children’s Legal Centre) for
the Claimant
Malcolm Birdling and Joshua Pemberton (instructed by the Government Legal
Department) for the First Defendant
Shane Sibbel (instructed by the Government Legal Department) for the Second Defendant
Grace Brown and Nadia O’Mara (instructed by MIND) for the Intervener
Hearing dates: 21 and 22 May 2024
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Approved Judgment
This judgment was handed down remotely at 10:30am on Friday 14 February 2025 by
circulation to the parties or their representatives by e-mail and by release to the National
Archives.
.............................
Judgment Approved by the court for handing down. R (CWJ) v Director of Legal Aid Casework & Lord Chancellor
Mr Justice Lavender:
(1) Introduction
1. The Claimant applies for judicial review of the decision of the First Defendant (“the
Director”) of 28 June 2022 not to make an “exceptional case determination” (as
defined in sub-paragraph 10(3) of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (“LASPO”)) in relation to proceedings before a review panel
(“the review panel”) in respect of the exclusion of her son (“XWJ”) from his school
(“the school”).
2. The Claimant also applies for permission to amend her claim form and statement of
grounds and, if permission to amend is granted, applies for judicial review of
paragraph 8.2 of the Lord Chancellor’s Exceptional Case Funding Guidance (Non-
Inquests) (“the 2023 ECF Guidance”), which was issued by the Second Defendant,
the Lord Chancellor, in July 2023.
3. The question whether, and, if so, in what circumstances, exceptional case funding is
available for representation before review panels in cases of permanent exclusion is a
potentially significant one, given the issues to which I will refer and the wider
context, which includes the following factors:
(1) The number of permanent exclusions. For instance, 7,894 pupils were
permanently excluded in 2018-19 and 6,495 in 2021-22.
(2) The evidence that a significantly larger proportion of children with certain
characteristics (including children with special educational needs, children of
certain ethnicities (including Black Caribbean ethnicity) and children in receipt
of free school meals) are subject to permanent exclusion than children without
those characteristics.
(3) The significant adverse effects of permanent exclusion, which were
acknowledged by Lord Bingham in paragraph 21 of his speech in A v
Headteacher and Governors of Lord Grey School [2006] 2 A.C. 363 (“Lord
Grey School”) and which were set out extensively in the evidence relied on by
the Claimant and by the Intervener, MIND, in the present case.
(2) Background
4. XWJ is of Black Caribbean heritage, he has special educational needs and disabilities,
including poor mental health and dyslexia, and he was in receipt of free school meals.
(2)(a) The Permanent Exclusion and the Challenges to it
(2)(a)(i) The Exclusion Decision
5. By a letter dated 13 May 2021 (“the exclusion letter”) the head teacher of the school
gave notice of her decision (“the exclusion decision”) to exclude XWJ permanently
from the school because of what were alleged to be two separate acts of physical
violence towards members of the school community on 6 May 2021. The exclusion
letter also referred to XWJ’s disciplinary record, which included three fixed term
exclusions from the school, most recently in March 2021. XWJ’s permanent
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Judgment Approved by the court for handing down. R (CWJ) v Director of Legal Aid Casework & Lord Chancellor
exclusion took place shortly before he was due to sit his GSCE exams. Arrangements
were made for him to sit his exams at a different institution.
(2)(a)(ii) The GDC Decision
6. On 8 June 2021 a governors’ disciplinary committee (“the GDC”) held a hearing to
review the exclusion decision. The Claimant and XWJ attended the hearing,
accompanied by a friend of the Claimant, LKM, who is a local authority planning
lawyer. The Claimant and LKM addressed the GDC. In a letter dated 8 June 2021
(“the GDC letter”) the GDC announced its decision (“the GDC decision”) to uphold
XWJ’s permanent exclusion.
7. Minutes of the GDC’s meeting (“the GDC minutes”) were subsequently produced,
although their accuracy was disputed. The GDC minutes contained summaries of the
family’s case and of the family’s summing up, in which no reference was made to any
Convention right. Paragraph 10.10 of the GDC minutes stated as follows:
“It was further agreed that the requirements of the Equality Act had been
considered and [XWJ] had not been treated any less favourably because of his
SEN needs.”
(2)(a)(iii) The Review Panel Proceedings
8. On 15 July 2021 the Claimant requested that the GDC decision be reviewed by a
review panel.
9. I was told that LKM filed submissions dated 20 September 2021 on behalf of the
Claimant with the review panel, although I note that these submissions were not
referred to in the Claimant’s witness statements, statement of facts and grounds or
skeleton argument. In these submissions:
(1) It was alleged that the GDC’s decision was unlawful on a number of grounds,
including discrimination. In particular, it was alleged that the GDC had, by
the GDC letter, agreed that the decision to permanently exclude XWJ
amounted to direct discrimination, indirect discrimination and victimisation.
(2) It was also alleged that it was unlawful for the GDC to uphold the exclusion
decision without considering Article 8 ECHR.
10. On 18 November 2021 Sabrina Simpson of the charity Just for Kids Law (since
replaced by Coram Children’s Legal Centre) filed a further submission on behalf of
the Claimant, setting out why the Claimant contended that the governing body’s
decision was unlawful. This submission did so under three headings: “Failure to
consider relevant information”; “Unreasonableness and Failures to follow the
statutory guidance”; and “Failure to conduct a fair hearing”. The submission, which
was 10 pages long, did not expressly refer to any Convention right, although it did
refer to the public sector equality duty.
11. The hearing before the review panel took place over two days, the first of which was
25 January 2022. The Claimant and XWJ attended the first day of the hearing,
together with counsel (Mr Persey), Ms Simpson and LKM. The Claimant and XWJ
were asked questions by the school’s representative. This resulted in their becoming
Page 3
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