Request an independent review following a permanent exclusion

The Education Act 2002 (as amended by the Education Act 2011), requires all Local Authorities (LAs) and Academies to make arrangements for enabling parents to request that an Independent Review Panel reviews the Governor's decision to uphold permanent exclusion.

This guide will help you decide whether or not to apply for a review of the decision to permanently exclude your child.

Who can apply for a review

The relevant person is:

• the pupil - if the pupil has reached the age of 18
• the parent - if the pupil is under 18

Under the Education Act, the definition of “parent” is broad. In addition to a child’s birth parents, it includes any person who has parental responsibility (which includes the local authority where it has a care order in respect of the child) and any person with whom the child lives e.g. a foster carer.

You also have the right to lodge a Disability Discrimination claim with the First Tier Tribunal, or any other type of Discrimination claim with the County Court. See section 15 for contact details. If you lodge either of these or both, an Independent Review will take place after the outcome is known. Alternatively, you can request the IRP to consider these claims.

You may request an independent review:

• even if you do not want your child to return to the school
• even if you did not attend the meeting at which the Governors or Proprietor considered your child’s permanent exclusion
• if you believe that the decision to exclude your child was unreasonable, unfair or unlawful - you will need to explain your reasons

The Independent Review Panel

An Independent Review Panel (IRP) consists of 3 people who have no connection with the school or Academy or PRU. The panel are volunteers who are recruited and trained for their roles. Each panel will include a: 

• headteacher (current or retired in the last 5 years)
• governor (must be or have been a governor within the last 6 years)
• lay member who will chair the hearing

The IRP will carefully consider submissions from you and the school, in writing and in person at the hearing.

The panel can consider whether:

• the school adhered to DFE guidance and relevant legislation such as the Special Educational Needs Code of Practice and The Equality Act 2012
• permanent exclusion was justifiable and in accordance with school policy
• procedures had been carried out fairly and without flaws which may have caused injustice
• permanent exclusion was in accordance with DFE guidance and demonstrates consistent and fair application of school policy

There are circumstances where you do not have a right to a review hearing.

You lose your right to a review hearing if your application is after the deadline for lodging a request. This is the 15th school day after you received, in writing, notice of the Governors’ or Proprietors’ decision not to reinstate your child.

Make sure you send your application for review as soon as possible after you receive the letter from the Governors or Proprietors telling you your child has not been reinstated.

If you have stated that you do not wish to have a review, or if you withdraw your application for a review part way through the process, you will lose your right to a hearing.

Give the matter careful consideration before you withdraw your application.

Applying for a review

A request for independent review must be made in writing. You must state your reasons for requesting a review, i.e. what you think the school did not properly consider or why you believe permanent exclusion was not an appropriate course of action.

Whether or not your child has recognised special educational needs, you have a right to require that the Local Authority or Academy appoint a SEN expert to attend the review hearing. You must request an SEN expert when you apply for a review of the Governors’ or Proprietors’ decision.

Disability discrimination

If your child has a disability, (physically or otherwise e.g. Aspergers, Autism, Tourette’s Syndrome etc.), and you believe discrimination has occurred, you have the right to lodge a disability discrimination claim to the First-tier Tribunal (Special Educational Needs and Disability). You must lodge your claim within 6 months of the date your child was permanently excluded.

If your claim is successful, the First-tier Tribunal can direct the school or academy or PRU to reinstate your child

You can make a claim of discrimination to the First-tier Tribunal before deciding to apply for an Independent Review. If you decide to lodge a discrimination claim, you can apply for an Independent Review Panel within 15 school days of the date the discrimination claim is finally determined.

If you apply for an IRP to review the decision to permanently exclude your child, the arrangements for the review hearing must not be delayed or postponed. Alternatively, you can choose to make this claim to the IRP, but the IRP does not have the power to direct reinstatement.

If you make a claim to the IRP, you should put the reasons for claiming disability discrimination in writing on the application form. You may also wish to contact the Equality & Human Rights Commission (EHRC) for further help and advice.

Other types of discrimination claims, e.g. Race, Gender, sexual orientation etc.

If you believe that your child suffered discrimination, other than disability, you have the right to lodge a discrimination claim with the County Court.

When reviews are heard

The IRP must meet to consider your application for review no later than the 15th school day after the day on which your application was received. However, an IRP may adjourn the hearing if there is good reason e.g. |the SEN expert is unavailable to attend or there are parallel criminal proceedings.

2 or more reviews may be combined and dealt with in the same hearing if the IRP considers that it would be fair and expedient to do so because the issues raised by the reviews are the same or connected and the parties to each review agree.

Who attends the Review Hearing:

• You and your partner, where requested, a friend, representative or legal adviser and, if you wish, your child (if you have any special requirements e.g. interpreter, please contact state this when preparing your request)
• the Independent Review Panel (3 members)
• the Clerk to the Review Panel
• the Head Teacher or Principal of your child's school or academy or PRU and their representative, if there is one
• any witnesses called by either the school or academy or PRU or by you
• if the school or PRU is maintained by the Local Authority (LA), an LA representative may attend.
• if the school or alternative provision has academy status, an LA representative may attend at your request but may only make representations with the consent of the Academy
• an SEN expert, but only if you had requested one when you lodged your application for review
• possibly, and where relevant, the alleged victim or their representative may be present for part of the review hearing

Sometimes there is also an observer. This may be someone who is training to be an Independent Review Panel member or Clerk to the Panel.

You and the school will be asked for your consent for an observer to be present for any part of your review hearing. You are free to object.

The SEN expert will be someone with appropriate expertise and experience of special educational needs (SEN). It may be possible to offer you a choice of SEN experts. They will not have, or at any time have had, any connection with the School or Academy or PRU, or the incident leading to the exclusion, or you or your child (or their sibling), which might raise doubts about their ability to act impartially.

The SEN expert’s role will not include assessing your child’s special educational needs. They can only make objective and impartial statements to the panel relating to SEN.

The IRP can decide to:

• uphold the exclusion
• recommend that the governing body or proprietor reconsiders their decision
• quash the decision and direct that the governing body or proprietor considers the exclusion again

The IRP may only quash the decision on the principles applicable to judicial review. Therefore, the IRP will apply the following tests:

• illegality - did the Head Teacher, Principal and/or Governors or  Proprietor act outside the scope of their legal powers in deciding to exclude?
• irrationality - was the decision of the Governors or Proprietor not to reinstate your child so unreasonable that it was not one a sensible person could have made?
• procedural Impropriety - was the process of exclusion and the Governors’ or Proprietors’ consideration so unfair or flawed that justice was clearly not done?

Procedural impropriety means not simply a breach of minor points of procedure but something that has a significant impact on the quality of the decision-making process. The Department for Education’s Guidance (paragraph 149) gives the following examples:

• bias
• failing to notify parents of their right to make representations
• Governors or Proprietor making a decision without having given parents an opportunity to make representations
• failing to give reasons for a decision
• being a judge in your own cause e.g. if the Head Teacher who decided to exclude were also to vote on whether to uphold the exclusion

The IRP may direct the governing body or proprietor to place a note on your child’s educational record. They may also, in the case of a governing body’s decision, order that a readjustment be made to the school’s budget or, in the case of an Academy, order that the Academy must make a payment directly to the local authority in which the Academy is located, in the sum of £4,000 if, following a decision by the IRP to quash the original decision, the governing body or proprietor:

• reconsiders the exclusion and decides not to reinstate your child (where you want your child to be reinstated)
• fails to reconsider the exclusion within 10 school days after notification of the IRP’s decision

Interpreter or signer and other help

You may have an interpreter or signer at your review hearing. If you would like the Clerk to arrange this for you (free of charge), please ask the Clerk well before the hearing. Alternatively, if you would prefer, you may arrange for your own interpreter or signer to come with you.

The Review Panel’s decision is binding on the relevant person, the Governors or Proprietor, the Head Teacher or Principal and the LA.

However, where you or the school or academy or PRU apply for a judicial review of the IRP’s decision and are successful in that application, the High Court may order a rehearing of the review.

Outcome of a review

The Clerk will send a letter to you, the Headteacher or Principal and the Governor or Proprietor as soon as possible after the IRP has decided on your case. Please allow 2 to 5 working days for receipt of the decision letter.

In the first instance, please contact the Appeals Manager who can help you with any queries or concerns you may have. They may be contacted by emailing [email protected]

If the excluding school is a Local Authority maintained school, you can make a complaint to The Local Government Ombudsman within 3 months following the panel’s decision. The Ombudsman is not able to overturn the panel’s decision, but you have the right to make a complaint about maladministration. You can do so via their advice line at 0300 061 0614, visit their website, email [email protected] or write to:

The Local Government Ombudsman
PO Box 4771
Coventry
CV4 0EH

For Academies, you can make a complaint to the Secretary of State by using the online complaint form or by writing to:

The Department for Education
Sanctuary Buildings
Great Smith Street
London
SW1P 3BT

If you disagree with the panel’s decision, you can challenge this by applying, through your own solicitor and at your own expense, for permission to seek Judicial Review. This must be done within 3 months following the panel’s decision.

Other sources of advice

If you would like further advice or information, the Advisory Centre for Education (ACE) is an independent national education advice centre which provides information on the education system. 

The DfE has produced guidance for the Head Teachers, Governing Bodies, Proprietors and Review Panels.

If you do not have access to a computer, your local library may be able to help you. Alternatively, you can request a copy of the guidance from the Review Panel Manager at 07500 605693.

If your child has a Statement of Special Educational Needs or Education, Health and Care Plan, free, impartial advice and support can be obtained from Information and Advice Service.

IPSEA provide free legally based advice on SEN and Disability issues.

Coram Children’s Legal Centre.