A landmark High Court decision has recently shed light on the intersection of legal aid, human rights and school exclusions - and it is something schools should be aware of.

The case, R (on the application of CWJ) v Director of Legal Aid Casework, related to the decision not to grant exceptional case funding (ECF) for legal representation in an independent review panel (IRP) relating to a school exclusion.

The ruling allows ECF to apply to the IRP process where, without it, the person’s human rights - which could include factors such as disability or racial discrimination - would be breached.

Schools must, therefore, be tuned into what this means for them within a bigger picture of intensifying objections to decision making and now enhanced resources for those making challenges.

Explaining the High Court case

This case involved a student of Black Caribbean heritage, with special educational needs and receiving free school meals, who was excluded for alleged acts of physical violence.

The exclusion was upheld by the governing body and ECF was declined at the IRP stage. The IRP subsequently recommended reconsideration but the governors upheld for a second time. That decision was subject to a separate judicial review that was determined in 2023 and focused on the public sector equality duty.

But the High Court judgement, handed down on 14 February 2025, examined the challenges to the director of legal aid caseworker’s decision not to allow ECF at the IRP. Lawyers acting for a group of parents argued the decision to decline ECF was a mistake, while issuing a challenge to the ECF guidance on a fundamental basis.

While the court ultimately dismissed the challenge - largely on the basis that the parent had not raised human rights nor discrimination at the IRP stage - and refused permission on the claim about the ECF guidance, it made one key admission in favour of the claimants.

It held that Article 6 of the European Convention on Human Rights, which concerns the right to a fair trial, could be engaged where a parent is seeking to argue that their child was discriminated against.

Where discrimination is being raised at an IRP, it could mean ECF follows - although each case would very much fall on its merits.

What does this case mean for schools?

Consideration of this case must be set against wider trends. The Special Educational Needs and Disabilities (SEND) Tribunal’s latest data showed a 54 per cent increase in disability discrimination claims in the last two years, with most of those claims relating to a suspension or exclusion.

Yet we also know there is an acute shortage of specialist provision and funding, with the government overseeing an ongoing inquiry into “solving the SEND crisis”.

This, again partially, helps to explain why 65 per cent of respondents to our School Leaders Survey noted an increase in parental complaints during the 2023-24 academic year compared with 12 months previously.

So we have a combustible situation in which SEND provision isn’t fit for purpose across schools, parents increasingly - and, it must be stressed, understandably - feeling empowered to challenge decisions affecting their children and, owing to the High Court decision, will be better resourced to take legal action.

As such, we are likely to see more lawyers seeking legal aid at IRP following this decision, with more explicit references made to discrimination and human rights, too.

Schools must, therefore, ensure their exclusions process and behaviour policy are fit for purpose.

They should be clear on the steps taken before and during a decision to suspend or exclude a pupil, with any reasonable adjustments made and decisions being made that are proportionate.

Where human rights and discrimination are raised during exclusion IRP hearings, it may also be important to get legal advice, as failure to consider these issues properly early on may lead to further challenge.

Philip Wood is a senior associate in the education team at law firm Browne Jacobson

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