Non-binary student with special educational needs has his permanent exclusion overturned and is reinstated in time to take his GCSEs

Wednesday 20 March 2024

Oscar Davies and Ollie Persey of the Garden Court Education Law Team and School Inclusion Project (‘SIP’) successfully challenged a student’s (‘P’) permanent exclusion from school and secured his reinstatement ahead of his GCSE examinations.

Oscar and Ollie acted pro bono through Advocate in the Independent Review Panel (‘IRP’) proceedings and assisted Bethany Parr and Dan Rosenberg at Simpson Millar, funded by legal aid (legal help), in a successful proposed claim for judicial review.   

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The names of the student and school have been anonymised for the purposes of this article.  

P was 16 years old and identifies as non-binary, uses ‘he/him’ pronouns and is experiencing gender incongruence. P first openly identified as transgender in the 2020/2021 academic year. P has the protected characteristics of disability and gender reassignment for the purposes of sections 6 and 7 of the Equality Act 2010. 

In September 2023, P was permanently excluded by the headteacher after an incident where he allegedly ran around the corridors during an open evening and told parents not to send their children to the school. On 5 October 2023, the Governing Body held a meeting and upheld the headteacher’s decision to permanently exclude P from school.  

On 19 December 2023, an IRP hearing was held. Ollie drafted the written submissions and Oscar represented P at the hearing, attending with P’s parents. Five grounds of challenge were advanced to the Governing Body’s decision: misapplication of the legal test, disability discrimination in breach of the Equality Act 2010, irrationality, inadequate reasons and breach of the Public Sector Equality Duty. The IRP unanimously quashed the Governing Body’s decision and stated that it would impose a £4,000 “financial adjustment” if the Governors did not reinstate P. 

On 19 January 2024, the same panel of Governors that made the previous decision voted to uphold their previous decision, despite it having been quashed by the IRP. 

Oscar and Ollie assisted Bethany Parr and Dan Rosenberg at Simpson Millar to prepare an urgent judicial review pre-action protocol letter challenging this further decision. Following the proposed urgent claim for judicial review, the school agreed to reinstate P in time for him to complete his GCSEs.  

Despite P and his family being financially eligible for legal aid, they were dependent upon pro bono support (first from a student at City University via its School Exclusions Project, and then from Oscar and Ollie) to raise complex public law and discrimination law arguments at the IRP. Without this specialist legal assistance, the family consider that the permanent exclusion would have been upheld and P would never have returned to that school.

Because of the importance of access to specialist legal advice and legal representation in challenging discriminatory and unlawful school exclusions, securing public funding for IRP hearings is the top strategic priority for the SIP. Permission has been granted in a test case challenging the lack of ECF funding, in which Stephanie Harrison KC and Ollie Persey are instructed by Coram Children’s Legal Centre, that will be heard in the High Court in May 2024. To read more about that upcoming case, please see here.

Further details about the SIP and how to get involved can be found here.

Further information about Advocate, the pro bono charity, can be found here.

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