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Should you apply for a Review by an Independent Review Panel?

Introduction

The Education Act 2002 (as amended by the Education Act 2011), requires all Local Authorities (LAs), Academies and Pupil Referral Units (PRUs) to make arrangements for enabling parents to apply for a Review of the decision of a Governing Board not to reinstate a pupil who has been permanently excluded from a school maintained by an LA, Academy or PRU.

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

Who has the right to apply for a Review?

The "relevant person", defined as:

  1. Where a pupil has reached the age of 18 it is the pupil him/herself; or
  2. Where a pupil is under 18, his/her parent.

Important

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 who the child lives with for example: a foster carer.

Is there any point in applying for a Review?

It is for you to decide but you should understand that the role of the Independent Review Panel is to review the decision of the Governing Board to exclude your child. It cannot reinstate your child or remove the permanent exclusion from their record. The Independent Review Panel can ask the Governing Board to Review or reconsider its decision to permanently exclude and/or ask for its comments to be added to your child's record. For more information on decision making please see What powers does the Independent Review Panel have?

It is important you know that:

  • An Independent Review Panel (IRP) has no power to reinstate your child.
  • You may have the decision reviewed by an Independent Review Panel even if you do not want your son/daughter to return the school/PRU.
  • You can apply for a Review even if you did not make a case to, or attend, the meeting at which the Governing Board considered your child's permanent exclusion. An IRP of three people (who have no connections with the school or Academy or PRU) will hear your Review.
  • The IRP carefully considers your case and that of school or Academy or PRU.
  • If you think that your child may has or has special educational needs (SEN) and these have not been properly taken into account or the Governing Boards' meeting was unfair in any way you should consider applying for a Review.

Are there circumstances where I do not have a right to a Review Hearing?

Yes. There are two circumstances:

1. You lose your right to a Review Hearing if your application is received after the 15th school day after the day on which you are informed, in writing, of the Governing Boards' decision not to reinstate your child (unless you are pursuing a claim for discrimination please see Does anyone have the power to reinstate my child?).

2. If you withdraw your application for a Review, you also lose your right to a hearing.

Important

Make sure you send your application for Review as soon as possible after you receive the letter from the Governing Board telling you your son/daughter has not been reinstated.

Give the matter careful consideration before you withdraw your application.

How do you apply for a Review?

  1. You must fill in the Notice of Application for an Independent Review form.
  2. You must set out your reasons for applying for a Review in writing and, if relevant, state how you consider your child's SEN are relevant to the exclusion.
  3. Important: Whether or not your child has recognised special educational needs, you have a right to require that the Local Authority or Academy appoint an SEN expert to attend the Review.
  4. You must request an SEN expert attends the Review Hearing at the time you apply for a Review of the Governors' or Proprietors' decision.
  5. Sign and date the form.
  6. Send your completed form to: School Appeals Service, Dakota, 11 De Havilland Drive, Weybridge, KT13 0YP.

Please note: The School Appeals Service must receive the application form/letter within 15 school days of the date you received Governing Boards' decision letter, unless you are pursuing a claim for discrimination.

When will my Review be 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. SEN expert unavailable to attend or there are parallel criminal proceedings.

Please note: Two or more Reviews may be combined and dealt with in the same hearing if the IRP consider that it is suitable to do so because the issues raised in the applications are the same or connected.

In potential cases of combined Reviews, the IRP will ask all parents if they have any objections to combining the hearings.

Who will be at the Review Hearing?

  • You and your partner and, if you wish, your son or daughter;
  • Where requested, a friend; representative or legal adviser (who would attend at your own cost);
  • If relevant. the Social Worker;
  • If relevant, the Virtual School Head (VSH) in the case of a Looked After Child (LAC) may attend;
  • The Independent Review Panel (3 members);
  • The Clerk to the Review Panel;
  • If attending, the legal or other representative of the Governing Board;
  • The Head Teacher/Principal of your son's or daughter's school or academy or PRU;
  • Any witnesses called by either the school or academy or PRU or by you;
  • If school or PRU is maintained by the Local Authority (LA), an LA representative may attend;
  • If school/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 when you requested one attends at the time you lodged your application for Review. NB The LA or Academy bears this cost;
  • If attending, and where relevant, the alleged victim or his/her representative may be present for part of the Review hearing;
  • If requested, an interpreter.

Please note:

There is a limit to how many people can be accommodated. If either party wishes to bring more than one representative, the Clerk to the IRP would have to speak to the IRP to seek its agreement.

Sometimes there is also an observer. This may be someone who is training to be an Independent Review Panel member or Clerk to Panel. They will play no active role in any part of the hearing or decision making process.

You will be asked if you object to an observer being present for any part of your Review hearing.

Who is the SEN expert?

The SEN expert will be someone with appropriate expertise and experience of special educational needs (SEN).

The final decision on the appointment of the SEN expert is for the LA or Academy to make but the LA or Academy should take reasonable steps to ensure you have confidence in the impartiality and capability of the SEN expert.

He or she will not have, or at any time have had, any connection with the Local Authority, School or Academy or PRU, or the incident leading to the exclusion, which might raise doubts about their ability to act impartially. He/she will not have any connection with you or your child (or his/her sibling). The SEN expert must also declare any known conflict of interest before the start of the Review Hearing. Current legislation states that individuals are not automatically taken to be partial simply because they are an employee of, or contracted by, a local authority or Academy Trust.

Important:

The SEN expert's role will not include making an assessment of your child's special educational needs.

Who are the Independent Review Panel members?

The IRP will have three members and:

  • One must be, or have been within the previous five years, a Head Teacher/Principal;
  • One must be, or have been:
  1. a governor of a maintained school,
  2. a member of a pupil referral management committee,
  3. (a director of the proprietor of an Academy,

Provided they have served in that capacity for at least 12 consecutive months within the last five years, and they have not been a teacher or Head Teacher during the last five years;

  • One must be a lay person, that is, someone who has never worked in a school in a paid capacity (disregarding any experience as a school governor or volunteer).

Please note: The Lay member must be the Chairman of the Panel. All the IRP members (and their clerk) will have received the required training.

Important:

Anyone who has, or has had, a connection with the school or with any of the parties involved in the case cannot sit on the Independent Review Panel.

What powers does the Independent Review Panel (IRP) have?

The IRP does not have the power to reinstate your child but can decide to:

  • uphold the exclusion i.e. refuse your application; or
  • recommend that the governing board reconsiders their decision; or
  • quash the decision and direct that the governing board considers the exclusion again.

Important:

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

  • Illegality – did the Head Teacher/Principal and/or Governing Board act outside the scope of their legal powers in taking the decision to exclude?
  • Irrationality – was the decision of the Governing Board 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 Governing Boards' consideration so unfair or flawed that justice was clearly not done?

Please note:

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 gives the following examples:

  • Bias;
  • Failing to notify parents of their right to make representations;
  • Governing Board making a decision without having given parents an opportunity to make representations;
  • Failing to give reasons for a decision; or
  • Being a judge in your own cause e.g. if the Head Teacher who took the decision to exclude were also to vote on whether to uphold the exclusion.

The IRP may also:

(a) direct the Governing Board to place a note on your child's educational record;

(b) in the case of a Governing Boards' 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, if following a decision by the IRP to quash the original decision, the Governing Board:

(i) reconsiders the exclusion and decides not to reinstate your child (where you want your child to be reinstated), or

(ii) fails to reconsider the exclusion within 10 school days after notification of the IRP's decision.

Does anyone have the power to reinstate my child?

Yes. In addition to the right to apply for a Review to be heard by an IRP, under the Equality Act 2010, if you believe the exclusion has occurred for a reason related to your child's disability, you can make a disability discrimination claim to the First-tier Tribunal Health, Education and Social Chamber (Special Educational Needs and Disability). You must lodge your claim within 6 months of the date your child was permanently excluded.

Also, if you consider that your child has been victimised, or directly or indirectly discriminated against on e.g. racial or other grounds, you can make a discrimination claim to the County Court, which you must lodge within six months of the date your child was permanently excluded.

Alternatively, you can choose to make these claims to the IRP. However 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 discrimination in writing on the application form. You may also wish to contact the Equality & Human Rights Commission (EHRC) for further help and advice (see Appendix).

You can make a claim of discrimination to the First-tier Tribunal and/or County Court before deciding to apply for a Review hearing. Where this is the case you must apply for a Review hearing within 15 school days of the date the discrimination claim is finally determined.

Where you make such claims at the same time as applying for the IRP to Review the decision to permanently exclude your child, the arrangements for the Review hearing must not be delayed or postponed.

When will you hear the outcome of the Review hearing?

The Clerk will telephone you as soon as possible after the IRP has decided on your case and will also write to you, the Head Teacher / Principal, Governing Board detailing the IRP's decision as soon as possible.

Is the Review Panel's decision binding on anybody?

Yes. The IRP's decision is binding on the: Governors; Head Teacher; LA; and (in the case of an academy) academy trust. Department of Education (DfE) guidance states that where the IRP directs or recommends that the Governing Body reconsiders their decision, the Governing Board must reconvene to do so within 10 school days of being given notice of the IRP's decision.

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 re-hearing of the Review.

What happens if I need an interpreter or signer or other help?

You may have an interpreter or signer at your Review hearing. If you would like the School Appeals Service to arrange this for you, free of charge, please indicate this on the form or contact us directly well before the hearing. Alternatively, if you would prefer, you may arrange for your own interpreter/signer to come with you, please contact the School Appeals Service to discuss (see Appendix).

Is there anyone who can help me with preparing for my Review Hearing?

In the first instance, please contact the School Appeals Service who can help you with any queries or concerns you may have. See School Appeals Service contact details in the Appendix.

If you would like further advice or information, please see Appendix for contact details of the following:

Coram Child Law Advice Service

Provides legal advice on exclusions

SEND Advice Surrey

If your son/daughter has Special Educational Needs (SEN) and has an education health and care plan or your child receives SEN support in their education setting, you may wish to contact this Team.

The Equality and Human Rights Commission (EHRC):

Provides advice regarding discrimination claims

Department for Education (Central Government)

The DfE has produced statutory guidance on School suspensions and permanent exclusions, which the Head Teachers, Governing Boards and Independent Review Panels must have regard to.

How to complete your Application for an Independent Review Form

The numbered paragraphs below correspond with the questions similarly numbered on the Notice of Application for Independent Review Form. Please complete in CAPITAL LETTERS AND BLACK INK.

Questions 1 and 2

Please give your full name, home address, mobile and/or daytime telephone number and email address. If you wish correspondence to be sent to another address, please include a note of that address.

Question 3

Please ensure that your child's full name and date of birth is inserted.

Question 4

Please state the name of the school/college from which your child has been permanently excluded.

Questions 5

You are strongly recommended to attend the Review in person to present your case.

Questions 6, 7, 8 and 9

Please indicate if you wish for an SEN expert to attend your appeal hearing.

If your child has been excluded from an academy please indicate if you wish for an LA representative to attend your appeal hearing. Please note that the LA representative can only act as an observer and may only make representations if agreed by the excluding school. Please also give details of your child's Social Worker and or Virtual School Head if relevant.

If you are not sure please contact the School Appeals Service.

Questions 10 and 11

Please give details in the spaces provided if you have a disability and need assistance. If you require an interpreter, please state which language you speak if you wish the School Appeals Service to arrange an interpreter to be present at your appeal hearing. Please also give details if you require us to arrange a signer to be present at your appeal hearing. Please note you may arrange for your own interpreter or signer if you prefer.

Questions 12, 13, 14, 15, 16 and 17

In making your decision you may wish to have regard to the following:

(a) You have the right to attend the hearing and to make oral representations, or to have your case put to the Panel by a representative. You may instead be accompanied by a friend.

(b) If you feel that there are reasons why you should be legally represented, please give the reasons under Question 12.

(c) Please indicate whether you will wish to call any witnesses and give brief details of the matters their evidence will concern. You should indicate the nature of the evidence to be given by your witnesses because it may be possible to agree a statement which they can submit to the hearing therefore avoiding the need for the witness to attend in person.

(d) You may elect not to attend the Review but to allow the hearing to be considered on the written statements submitted by yourself. The Head Teacher and Governing Board will, of course, not be permitted to add new reasons to their case in your absence. They may however expand upon their written submissions and/or respond to questions presented by the Panel.

Questions 18, 19 and 20

Please give details of any special education needs your child may have.

Questions 21, 22 and 23

This is your "written statement" detailing the grounds of your request for Review. Regulations governing independent reviews against permanent exclusion state that a request must be made in writing setting out the grounds on which is it made. Any request for Review form received without any grounds will not be considered to have been lodged properly and will be returned to you. You can submit a brief summary of your case and additional information and evidence supporting your request for Review can be submitted at a later date before the hearing. If you choose not to attend the hearing, this will be the statement considered by the Review Panel. You may, of course, add additional sheets If there is not sufficient room on the form.

Where possible please enclose with your form, copies of any letters and/or documents which you intend to use and which you intend to refer to at the hearing. This will enable the IRP to be well aware of these before the hearing. However, you must ensure that your request for Review is lodged by the date on the bottom of the form as any forms received after the relevant date cannot be accepted. If you cannot include evidence you want to support your case this should be submitted as soon as possible but before the start of your hearing.

Appendix: Useful contact details

School Appeals Service contact details

Email: surrey.schoolappeals@surreycc.gov.uk

Address: School Appeals Service, Dakota, 11 De Havilland Drive, Weybridge, KT13 0YP

SEND Advice Surrey

Address: Woodhatch Place, 11 Cockshot Hill, Reigate, Surrey, RH2 8EF

Telephone: 01737 737 300

Email: SENDAdvice@surreycc.gov.uk

Website: https://www.sendadvicesurrey.org.uk

Coram's Child Law Advice Service:

Telephone: 0300 330 5485

Website: https://www.childlawadvice.org.uk

The Equality and Human Rights Commission (EHRC):

EHRC
FREEPOST RRLL-GHUX-CTRX
Arndale House
Arndale Centre
Manchester M4 3EQ

Telephone: 0845 604 6610

Textphone: 0845 604 6620

Email: englandhelpline@equalityhumanrights.com

Website: www.equalityhumanrights.com

The Secretary of State for Education can be contacted at:

Address: Department for Education (DfE), Sanctuary Buildings, Great Smith Street, London SW1P 3BT

Telephone: 0370 000 2288

Typetext: 18001 0370 000 2288

Website: Contact the Department for Education website

First-tier Tribunal (Special Educational Needs and Disability) (for disability discrimination claims only)

Address: First-tier Tribunal, 1st Floor, Darlington Magistrates Court, Park Gate, Darlington

To obtain Education Acts and relevant Regulations:

Website: Legislation website

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