What is an Independent Review Panel?

When a pupil is permanently excluded, their parents (or the pupil if aged 18 or over) may request an Independent Review Panel (IRP) if the school’s governing board decides to uphold the exclusion. The panel’s role is to review the governing board’s decision not to reinstate the pupil and assess whether it was properly made. IRPs were introduced under the Education Act 2011, replacing the former Independent Appeal Panels.

Who arranges an IRP?

For maintained schools, the local authority must arrange the IRP. For academies, the academy trust is responsible and must cover the cost.

How can a parent request an IRP?

In the case of a permanent exclusion where the governing board decides not to reinstate the pupil, the governing board’s decision notification must provide notice of parents’ right to ask for the decision to be reviewed by an IRP. The information provided must include where and to whom an application for a review (and any written evidence) should be submitted.

When to apply for an IRP?

The legal time frame for an application is:

• within 15 school days of notice being given to the parents by the governing board of its decision not to reinstate a permanently excluded pupil; or
• where an application has not been made within this time frame, within 15 school days of the final determination of a claim of discrimination under the Equality Act 2010 in relation to the permanent exclusion.

Any application made outside of the legal time frame must be rejected by the local authority/academy trust.

When and where will the IRP hearing take place?

The review must begin within 15 school days of the day on which the parent’s application for a review was made.

The local authority or academy trust must arrange a private, accessible, and appropriate venue for the review hearing, unless directed otherwise. They must take all reasonable steps to ensure the venue includes a suitable waiting area for parties separate from the panel, and comply with the Equality Act 2010 by making reasonable adjustments to support attendance and participation. It is good practice for the IRP to be held somewhere other than the excluding school, so that it is “neutral” ground.

Appointing panel members

The local authority/academy trust must constitute the panel with either three or five members (as decided by the local authority/academy trust) representing each of the three categories below:

• 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 who have served as a governor for at least 12 consecutive months in the last five years, provided they have not been teachers or headteachers during that time.
• Headteachers or individuals who have been a headteacher within the last five years.

A five member panel must be constituted with two members from each of the categories of school governors and headteachers.

Who may not serve as a panel member?

A person may not serve as a member of a review panel if they:

• are a member of the local authority, if the excluding school is a maintained school or a PRU ;
• are a director of the academy trust of the school, if the excluding school is an academy;
• are the headteacher of the school who has permanently excluded the pupil or anyone who has held this position in the last five years;
• are an employee of the local authority/academy trust, or the governing board, of the school who has permanently excluded the pupil (unless they are employed as a headteacher at another school);
• have, or at any time have had, any connection with the local authority/academy trust, school, governing board, parents or pupil, or the incident leading to the permanent exclusion, which might reasonably be taken to raise doubts about their impartiality (though an individual must not be taken to have such a connection simply because they are employed by the local authority/academy trust as a headteacher at another school); or
• have not had the required training within the last two years (see section on ‘training’ below).

Appointing a clerk

The local authority/academy trust may appoint a clerk to provide advice to the panel and parties to the review on procedure, law and statutory guidance on suspensions and permanent exclusions. The clerk should not have served as a clerk to the governing board in the meeting at which the decision was made by the governing board not to reinstate the pupil.

The role of the clerk

Where appointed, the clerk must perform the following additional functions:

• Make reasonable efforts to inform the following people that they are entitled to make written representations to the panel, attend the hearing and make oral representations to the panel and be represented:
  • the parents or pupil if they are 18 years or older;
  • the headteacher;
  • the governing board; and
  • the local authority (in the case of a maintained school or PRU).
• Make reasonable efforts to circulate to all parties copies of relevant papers at least 5 school days before the review. These papers must include:
  • the governing board’s decision;
  • the parents’ application for a review; and
  • any policies or documents that the governing board was required to have regard to in making its decision.
• Give all parties details of those attending and their role, once the position is clear.
• Attend the review and ensure that minutes are produced following instructions from the panel.
• Identify in advance of the meeting whether the pupil (where they are under or over 18 years old) will be attending. Where a permanently excluded pupil is attending the hearing, consideration should be given in advance as to the steps that will be taken to support their participation.
• Inform the parents of their right to bring a friend to the hearing.
• Ascertain whether an alleged victim, if there is one, wishes to be given a voice at the review. This could be in person, through a representative or by submitting a written statement.

What training must panel members and clerks receive?

The local authority/academy trust must ensure that all panel members and clerks have received training within the two years before the date of the review. This training must have covered:

• the requirements of the primary legislation, regulations and statutory guidance governing suspensions and permanent exclusions on disciplinary grounds (which would include an understanding of how the principles applicable in an application for judicial review relating to the panel’s decision making);
• the need for the panel to observe procedural fairness and the rules of natural justice;
• the role of the chair of a review panel;
• the role of the clerk to a review panel;
• the duties of headteachers, governing boards, and the panel under the Equality Act 2010;
• the effect of section 6 of the Human Rights Act 1998 (acts of public authorities unlawful if not compatible with certain human rights) and the need to act in a manner compatible with human rights protected by that Act.

Appointing a SEN expert

The parent or a pupil if they are 18 years or over have a right to request the attendance of a SEN expert at a review, regardless of whether the school recognises that their child has SEN.

The SEN expert must be someone who has expertise and experience of special educational needs considered appropriate to perform the functions specified in the legislation. They should be a professional with first hand experience in the assessment and support of SEN, as well as an understanding of the legal requirements on schools concerning SEN and disability. Examples of suitable individuals might include:

• educational psychologists;
• specialist SEN teachers;
• SENCOs; and
• behaviour support teachers.

The final decision on the appointment rests with the local authority or academy trust, but it should take reasonable steps to ensure that parents have confidence in the SEN expert’s impartiality and expertise.

The role of the SEN expert

The SEN expert’s role is analogous to an expert witness, providing impartial specialist advice to the panel on how SEN might be relevant to the permanent exclusion. The SEN expert should base their advice on the evidence provided to the panel. The SEN expert’s role does not include making an assessment of the pupil’s special educational needs.

The focus of the SEN expert’s advice should be on whether the school’s policies which relate to SEN, or the application of these policies in relation to the permanently excluded pupil, were lawful, reasonable, and procedurally fair. If the SEN expert believes that this was not the case, they should, where possible, advise the panel on the possible contribution that this could have made to the circumstances of the pupil’s permanent exclusion.

Where the school does not recognise a pupil as having SEN, the SEN expert should advise the panel on whether they believe the school acted in a legal, reasonable, and procedurally fair way with respect to the identification of any SEN that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s permanent exclusion.

The role of the panel and its decision-making process

The role of the panel is to review the governing board’s decision not to reinstate a permanently excluded pupil. In reviewing the decision, the panel must consider the interests and circumstances of the permanently excluded pupil, including the circumstances in which the pupil was permanently excluded, and have regard to the interests of other pupils and people working at the school.

The panel’s role is not to review the headteacher’s decision, as the governing board does. Its role is to review the governing board’s decision to uphold the exclusion. This is an important distinction. The panel may conclude that the governing board should reconsider the exclusion due to an unsatisfactory review process, even if no issues are identified with the exclusion itself.

The chair (lay panel member) should outline the procedure to be followed and explain to all parties that the panel is independent of the school, the local authority and (in the case of an academy) the academy trust. The panel should support all parties to participate in the review and ensure that their views are properly heard. The independent review should be conducted in an accessible, unthreatening, and non adversarial manner.

Judicial review principles

The 2014 High Court case R (CR) v Independent Review Panel for the London Borough of Lambeth considered the scope of the IRP’s review. The court found that the IRP’s role is to conduct a judicial review as far as possible. When assessing the governing board’s decision in light of the principles applicable to a judicial review, the panel should apply the following tests:

• Illegality – did the governing board act outside the scope of its legal powers in deciding that the pupil should not be reinstated?
• Irrationality – did the governing board 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 governing board’s consideration so procedurally unfair or flawed that justice was clearly not done?
  • Procedural impropriety means not simply a breach of minor points of procedure but something more substantive that has a significant effect on the quality of the decision making process. This will be a judgement for the panel to make, but the following are examples of issues that could give rise to procedural impropriety:
    • bias;
    • failing to notify parents of their right to make representations;
    • the 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 case (for example, if the headteacher who took the decision to exclude were also to vote on whether the pupil should be reinstated).

Equality Act 2010

It is not the duty of the panel to determine whether there has been a breach of the Equality Act 2010, but it is an important consideration when assessing the lawfulness of the governing board’s decision.

Evidence

The panel should not consider evidence that was not available to the governing board, unless the board could reasonably have been expected to obtain that evidence themselves, or unless the panel is considering a finding of recommended reconsideration rather than directed reconsideration.

What decision can the IRP reach?

Following its review, the IRP can decide to:

• Uphold the governing board’s decision not to reinstate
  • This will end the challenge process unless the family is also bringing a discrimination claim in the First-tier Tribunal or County Court, or bringing a claim for judicial review.
• Recommend that the governing board reconsiders reinstatement
  • The IRP sends the decision back to the school’s governing board. While this decision is titled a “recommendation”, in fact, there is not much choice in it for the governing board, and the High Court has said that it cannot envisage a scenario where it would be acceptable for the governing board to fail to reconsider.
• Quash the governing board’s decision and direct that the governing board reconsiders reinstatement
  • By directing reconsideration, the IRP quashes the governing board’s decision to uphold the exclusion and sends it back to be reconsidered.

Written notification

Following the review, the panel must issue written notification to all parties without delay. This notification must include:

• the panel’s decision and the reasons for it;
• where relevant, details of any financial readjustment/payment to be made if a governing board does not subsequently decide to offer to reinstate a pupil within ten school days; and
• any information that the panel has directed the governing board to place on the pupil’s educational record.