Where the Governing body decides to ‘uphold’ the permanent exclusion and you disagree with the decision, you have a further opportunity to make your representations (raise any questions or concerns) by requesting an Independent Review Panel (IRP).
The IRP can decide to:
uphold the exclusion decision;
recommend that the governing body reconsiders their decision; or
quash the decision and direct that the governing body considers the exclusion again.
The IRP has no power to direct the governing body to reinstate your child, or remove the exclusion from your child’s school record.
The review panel may order that the school pay £4,000 from their budget where the governing body, if after a decision to ‘quash’ the exclusion, reconsiders and makes the same decision to exclude.
Child Law Advicehave lots of information and advice on exclusions including frequently asked questions about the IRP process.
Whether you decide to request an IRP will depend on the outcome you seek and how strongly you feel about the decision to uphold the permanent exclusion. You may feel you would prefer to focus on next steps for your child’s education and put it all behind you. It’s important to do what’s right for you and your child, you should not feel pressured by anyone.
Parents that have gone through the IRP process generally say they found it a very fair process, that they felt empowered being able to put their questions to school overseen by an independent panel, and that they were pleased to have taken it to that stage – even where they did not get the outcome they hoped.
You can request an IRP even if you have decided that you do not want your child to be reinstated to the school. The panel will still consider the exclusion and their findings could be recorded on your child’s educational record along with acknowledgement from the governing body.
If you believe your child has been discriminated against under the Equality Act 2010, you can lodge a disability discrimination claim within six months of an exclusion decision and you can do this at the same time as, or instead of, an IRP.
Requesting an IRP
Your letter from the governing body should explain your right to request an IRP and include:
the deadline by which you must submit any application for a review (15 school days from the date of the decision letter)
the name and address where you can send your application and evidence for a review
that your application needs to explain the grounds on which you are requesting a review, and that you should include information about how special educational needs (SEN) are considered to be relevant to the exclusion *
your right to request the Local Authority/Academy Trust to appoint a SEN expert to attend the review, regardless of whether your child has recognised SEN
details of the role of the SEN expert, including that this will be at no cost to you
that you may, at your own expense, appoint someone to make written and/or oral representations to the panel and that you may also bring a friend to the review;
details about your right to lodge a claim for disability discrimination within 6 months of the exclusion
The panel members
A panel of three members must represent each of these three categories (a five member panel must have two members from both school governors and head teachers):
A lay member to chair the panel who has not worked in any school in a paid capacity, disregarding any experience as a school governor or volunteer.
Current or former school governors (including members of PRU management committees and directors of academy trusts) who have served as a governor for at least 12 consecutive months in the last five years, provided they have not been teachers or head teachers during that time.
Head teachers or individuals who have been a head teacher within the last five years.
The local authority/academy trust should take every care to ensure the avoidance of bias and request that any panel members declare any conflict of interest.
The SEN expert should be a professional with first-hand experience of the assessment and support of SEN, as well as an understanding of the legal requirements on schools in relation to SEN and disability. Examples of suitable individuals might include educational psychologists; specialist SEN teachers; special educational needs coordinators (SENCOs); and behaviour support teachers.
Recently retired individuals are not precluded from fulfilling this role, though the local authority/academy trust would need to assure themselves that the individual had a good understanding of current practice and the legal requirements on schools in relation to SEN. (131)
They must be impartial but can be employed by the local authority involved provided that they have had no previous involvement with assessment or support of your child.
The SEN expert’s role does not include making an assessment of your child’s special educational needs, their focus will be on whether the school’s policies which relate to SEN, and how they were applied in relation to the exclusion, were lawful, reasonable and procedurally fair.
Where the school does not recognise your child as having SEN, the SEN expert should advise the panel on whether they believe the school acted in a legal, reasonable and procedurally fairway regarding the identification of any SEN that your child may potentially have, and any impact this may have had to the circumstances of the exclusion.
Preparing your case
Send your case including any evidence in advance of the review panel to allow this to be circulated by the Clerk. Evidence received too late or on the day may result in an adjournment.
On the day of the review you will be waiting separately to the panel members, and the Clerk will call you through when the panel is ready. The process is formal though the panel will understand that this can be emotional for children and their parents.
The likely structure of the review panel will be:
Chair person’s introduction
Case for the Governing body(GB)/Head teacher (HT)
Questions for the GB/HT
Local authority view (only for non academy schools & may only comment as to whether the decision was conducted fairly)
Questions to the local authority
Your case including your child’s view
Questions to you/your child
SEN expert (if attending)
Questions for the SEN expert
Summing up GB/HT
Summing up you/your child
If you have any question marks over the ‘impartiality’ of any review panel member, for example if you know they have prior knowledge of your child you should highlight this at the start and could seek an adjournment.
When considering the governing body’s decision, the Panel should apply the following tests which need to be satisfied to quash the decision:
Illegality – Did the Head teacher and / or Governing body act outside the scope of their legal powers in taking the decision to exclude?
Irrationality – Did the Governing body rely on irrelevant points, fail to take account of all relevant points or make a decision so unreasonable that no governing board acting reasonably in such circumstances could have made it?
Procedural impropriety – Was the process of exclusion and the Governing body’s consideration so unfair or flawed that justice was clearly not done?
The IRP will decide to:
uphold the exclusion decision;
recommend that the Governing body reconsiders their decision; or
quash the decision and direct that the Governing body considers the exclusion again.
The Clerk will write to you explaining the decision made, the reasons for it and, where the decision is to recommend or direct the Governing body to reconsider reinstatement, they must do so within ten school days and notify you of their reconsidered decision without delay.
There is no further appeal. For schools other than academies, if you believe there were procedural flaws in how the review was conducted, you can contact the Local Government Ombudsman.
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