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Following a successful pilot project, this year the University of Liverpool Law Clinic has launched a bespoke service to support parents of children with special educational needs (SEN) who have been permanently excluded from school.
Children with SEN make up a significant proportion of permanently excluded children across England, and our Clinic has seen this reflected in the growing number of parents seeking advice.
When a child is permanently excluded from school, their parent can ask that an Independent Review Panel (IRP) reviews the decision. The IRP can uphold the decision to exclude, or they can recommend or order that the governing body of the school reconsider their decision. Crucially, an IRP cannot order that the child is reinstated, only that the governing body reconsiders it. This means that a governing body can maintain the decision to exclude when they look again at the decision.
Over the past year, volunteer law students have helped our solicitors prepare representations to IRPs and support parents. In one case, they also secured free assistance from an expert barrister at Garden Court Chambers to represent a client at the IRP hearing. After a full day of evidence and argumets, the IRP ordered the governing body to reconsider their decision. The governing body reviewed the decision but upheld the exclusion.
In such circumstances, the only option to challenge the school’s refusal to reinstate a child is to seek legal advice to prepare a judicial review pre action letter. Expert legal advice is necessary when considering a judicial review as the process is complex and, once an application has been submitted to the court, costs are typically paid by the losing party. Our solicitors have this expertise and they sent a letter to the school explaining what action they needed to take to avoid a claim for judicial review.
At the same time, because the exclusion related to a child with special educational needs and/or a disability (SEND), a claim for disability discrimination to the Special Educational Needs and Disabilities Tribunal was lodged. As a result of these legal challenges, and before either was considered by a judge, the school agreed to reinstate the child, who subsequently returned to school.
The child’s parent said: “The positive impact of the assistance of the Law Clinic is significant, their support has directly helped improve the education, wellbeing and future prospects of a vulnerable child”.
Although the outcome was ultimately positive, the child had already been absent for over five months.
Through their casework this year, the Clinic’s solicitors observed that governing bodies were upholding permanent exclusion despite the IRP directing or recommending reinstatement. A significant proportion of permanently excluded children have SEND, and the extent to which children with SEND are being reinstated after an IRP is not clear from any data available. The latest figures available show that in 2022/23 reinstatement of pupils where the IRP has recommended or ordered reconsideration of reinstatement is very low. Only 8.03% of those where a recommendation for reconsideration was made, and 36.11% where an order was made, were offered reinstatement.
Our solicitors worked again with a barrister to prepare a judicial review pre action letter to the Secretary of State for Education. The letter argued that the extent to which schools refuse to reinstate disabled children after an IRP recommends or directs reconsideration of reinstatement is not being monitored. They said that if the Secretary of State does not monitor this, she cannot understand the extent and disparity of permanent exclusions for disabled children, and this has implications for her ability to comply with the public sector equality duty.
The response to the letter said that the Secretary of State for Education had considered whether clearer information on the process would enable her to make a more detailed assessment of the effectiveness of the IRP system, including whether there are equalities issues which could be addressed. It stated her intention to gather comprehensive data on exclusions, including any review requested, the outcome of that review and the further decision of the governing body where relevant. She intends to gather this through the School Census, which already gathers significant information from schools.
Though the proposed changes are subject to the introduction and implementation of the necessary regulations, they are to be welcomed. This development will enable parents and other interested parties, including the solicitors at our Clinic, to continue advocating for a fairer and more inclusive education system.
The Clinic will continue this important work supporting excluded children and children with SEN more generally in the coming academic year.
The Clinic is not accepting new clients until September 2025. For more information, visit the Law Clinic website.