Lawyers who challenged the lack of legal aid for school exclusion appeals - an area of the education sector in which children who are black and/or have special educational needs and disabilities are overrepresented - have hailed 'as a significant breakthrough' the Legal Aid Agency’s decision to grant exceptional case funding for the first time.
Garden Court's Stephanie Harrison KC and Ollie Persey, who were instructed by Coram Children’s Legal Centre (CCLC) in a landmark challenge, revealed that legal aid was granted on 15 April for representation in an independent review panel (IRP) hearing. The IRP is a specialist body that reviews the lawfulness of permanent exclusions.
The exceptional case funding scheme was introduced in April 2013, when legal aid cuts came into force, to help people whose human rights would be breached if they did not have legal aid. Mr Justice Lavender's judgment in CWJ v Director of Legal Aid Casework and the Lord Chancellor confirmed that article 6 can be engaged in an IRP hearing.
While the LAA's decision has been described as a 'sigificant step forward', Harrison told the Gazette that legal aid lawyers will still need to establish that a human right is engaged in the IRP hearing.
Article 6 of the European Convention on Human Rights is engaged ‘if the IRP is determining substantive discrimination such as disability or race discrimination’, Harrison explained. A 'disproporionate interference' with the right to education under article 2 of protocol 1 could be argued if the exclusion process was unfair or led to a significant adverse impact. Harrison gave the example of a child out of school or in a pupil referral unit 'where attainment is lower and risks of harm, including exploitation and criminalisation, is increased'.
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