R on the application of CWJ v Director of Legal Aid Casework

Hearing dates: 21 and 22 May 2024

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.

(1) Introduction

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”).

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.

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

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

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 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

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.

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

On 15 July 2021 the Claimant requested that the GDC decision be reviewed by a review panel.

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.

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.

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 distressed and leaving the hearing, a matter which was addressed by Ms Simpson in a letter dated 28 January 2022.

The second day of the hearing before the review panel was on 11 March 2022. The Claimant and XWJ did not attend, but they were represented by Mr Persey and Ms Simpson, with LKM also attending. The review panel issued its decision on 23 March 2022. The review panel decided not to quash the GDC decision, but recommended that the governing body reconsider its decision.

The review panel's decision is 14 pages long. Amongst other things, it summarises the Claimant's case and the closing submissions made on behalf of the Claimant. The decision records that it was submitted on behalf of the Claimant that the school had acted in breach of the public sector equality duty, a submission which the review panel described as “at the heart of the [ Claimant's] case”. However, the decision does not record any submission that XWJ's exclusion was an act of direct or indirect discrimination or victimisation or was a violation of Article 8 or of Article 2 of Protocol 1 to the ECHR.

(2)(a)(iv) The Application for Judicial Review

The Claimant applied for judicial review of the review panel's decision. The GDC met on 11 July 2022 and decided to uphold XWJ's permanent exclusion (“the GDC reconsideration decision”). The Claimant applied for judicial review of the GDC reconsideration decision, apparently as part of the same application as that concerning the review panel's decision.

On 11 July 2023 the Claimant's application for judicial review was dismissed by UTJ Church, sitting as a deputy High Court judge: R (TZA) v A Secondary School [2023] EWHC 1722 (Admin). UTJ Church summarised the Claimant's case as follows in paragraphs 12 to 14 of his judgment:

“12. The thrust of the Claimant's case is that the Exclusion Decision was unlawful because the School failed to produce a written document which demonstrated that the Headteacher had had “due regard” to the PSED when deciding to exclude TZB permanently, and the Reconsideration Decision was itself unlawful because the only lawful option open to the GDC (given the unlawfulness of the Exclusion Decision) was to reinstate TZB. I will refer to these arguments on unlawfulness in relation to the PSED as “Ground 1”.

13. The Claimant also challenges the Reconsideration Decision on the basis that it is inadequately reasoned (“Ground 2”).

14. It was explained that TZB had no wish to return to the School to continue his education, but that his permanent exclusion was nonetheless prejudicial to him as it remained on his record and it affected the way he felt about himself.”

In summary, UTJ Church decided that:

(1) The public sector equality duty did not require the head teacher to produce a contemporary document demonstrating her compliance with that duty when making the expulsion decision.

(2) The GDC was entitled to find in the GDC decision that the head teacher had complied with the public sector equality duty when making the expulsion decision. In particular, the GDC was not obliged to make further enquiries before making its decision.

(3) The GDC gave adequate reasons for the GDC reconsideration decision.

(4) The GDC had not misunderstood the public sector equality duty when making either decision.

I am told that permission has been granted to the Claimant to appeal to...