Introduction

Challenging an exclusion at an Independent Review Panel (IRP) is not the same as presenting your case to a governing board. The IRP cannot overturn an exclusion or reinstate a pupil. Its role is to review whether the governing board’s decision to uphold the exclusion was lawful, reasonable, and procedurally fair. Your arguments therefore need to primarily focus on identifying procedural errors, breaches of statutory guidance, or failures to consider relevant evidence.

This step‑by‑step guide will take you through targeted questions and provide suggested wording to help you draft arguments that address the IRP’s specific remit.

Once you have the wording you want to use, copy and paste your arguments into the ‘Template document: Submissions to the Independent Review Panel’ to create your final document, ready for the hearing.

Using the template document

• Download: Template document: Submissions to the Independent Review Panel.
• Open: Click “Enable editing.”
• Complete basics: Add the young person’s name, school’s name, date of exclusion.
• Add background: Clearly explain events as the young person describes them, highlight where you disagree with the school’s version, and refer to any evidence that supports your account.

Building your arguments with suggested wording

• Work through this step-by-step guide: The guide outlines key factors and potential arguments, with each step including a downloadable suggested‑wording document.
• Select content: Each suggested wording document contains paragraphs for legal arguments related to the exclusion.
• Customise: Fill in any required sections and select options from drop‑downs where needed.
• Compile: Copy and paste completed arguments into your main submissions document. We also provide excerpts from DfE guidance within the suggested wording documents. You can use these to highlight what the school should be doing, compared with what they have done or are currently doing. Including these excerpts can help show how the school’s actions fall short of official guidance.

Adding and organising multiple arguments

• Add more: To add more arguments, click the + icon at the bottom right of the box.
• Title clearly: Provide a clear, specific title for each argument (for example, “Procedural fairness,” “Reasonableness of decision,” “Mitigating circumstances”).

Final review

We aim to make this process as clear and smooth as possible, but this guide cannot cover every situation. Given its complexity, your submissions should be reviewed to ensure they read well, avoid repetition, are clear, complete, and properly formatted.

Introduction

The principles of public law require that any decision made by the governing board is reasonable. This is sometimes referred to as rationality. Reasonableness requires that the governing board’s decisions and conclusions are logical and based on all relevant information. There are three elements:

1. Did the governors consider factors they ought not to have considered? Relying on factors or information that are not relevant may cause the decision to uphold the exclusion to be irrational and fail the reasonableness test.
2. Did the school fail to consider factors it ought to have considered? If there are relevant factors that the headteacher did not consider before deciding to exclude, the decision may be irrational and therefore the exclusion may be unreasonable.
3. Was the decision to exclude the young person so unreasonable that no reasonable governing board would have made it? If the governing board considers all relevant information but reaches a conclusion that does not logically follow from it, the decision may be irrational and fail the reasonableness test. This can be a difficult argument to make. As long as the governing board’s decision falls within the ‘range of reasonable decisions’, it will not be deemed unreasonable, even if it is not ideal or representative of best practice.

Explore further

Review the governing board’s decision letter and hearing minutes to assess whether, in your view, the decision to uphold the exclusion was unreasonable.

Downloads

• If applicable, consider using the suggested wording document – Argument to the IRP – Governing board’s decision irrational because it included irrelevant information.
• If applicable, consider using the suggested wording document – Argument to the IRP – Governing board’s decision irrational because it failed to include relevant information.
• If applicable, consider using the suggested wording document – Argument to the IRP – Governing board decision unreasonable because it was irrational having considered relevant information.

Introduction

The law sets out a number of tests that must be satisfied for a permanent exclusion to be lawful. The governing board does not have the power to uphold exclusions that are not lawful. Therefore, if the governing board finds an exclusion to be unlawful but upholds it anyway, they are acting outside the scope of their lawful powers. In such circumstances, the decision would be in breach of the public law principle of lawfulness.

The governing board should not uphold the exclusion if it agrees that it was:

• non‑compliant with the tests in the exclusions guidance;
• discriminatory;
• in breach of human rights standards; or
• unlawful on a public‑law basis.

Was it unlawful because the tests set out in the exclusions guidance were not met?

The exclusions guidance includes a number of tests that must be satisfied for a permanent exclusion to be lawful.

1. The test of last resort: This test is included in Part One of the exclusions guidance. It requires that the headteacher only exclude a young person where it is the only option left available to them.
2. Additional protections for vulnerable groups: Set out in paragraphs 54–62 of the exclusions guidance, this limitation is intended to protect looked‑after children, previously looked‑after children, and children with Education, Health and Care Plans (EHCPs). These groups are considered particularly vulnerable to exclusion and therefore require additional safeguards. Headteachers must avoid permanently excluding these children wherever possible.
3. Early support to prevent exclusion: Schools are required to support young people who are at risk of exclusion before one occurs. They should mitigate the risk by addressing any unmet needs and engaging proactively with parents to support the behaviour of pupils with additional needs.
4. Exclusion only on disciplinary grounds: Schools can only exclude on disciplinary grounds. They cannot exclude a pupil because they have SEN or a disability that the school feels unable to meet, for reasons related to academic attainment or ability, or for failing to meet specific conditions before reinstatement, such as attending a reintegration meeting.

Was it unlawful because the exclusion was discriminatory?

Under the Equality Act 2010, schools must not discriminate against, harass, or victimise pupils because of their: sex; race; disability; religion or belief; sexual orientation; pregnancy/maternity; or gender reassignment. For disabled children, this includes a duty to make reasonable adjustments to any provision, criterion or practice which puts them at a substantial disadvantage.

Was it unlawful because it was in breach of the young person’s human rights?

The governing board should consider a young person’s rights under the Human Rights Act before deciding whether to uphold an exclusion. Relevant protections include the right to education, the right to private and family life, and the right to non‑discrimination. The UN Convention on the Rights of the Child also contains several Articles relevant to school exclusion, in particular:

• Protection of the child against all forms of discrimination or punishment. (Article 2)
• In all actions concerning children, the best interests of the child should be a primary consideration. (Article 3)
• A right for children, who are capable of forming their own views, the right to express those views freely in all matters affecting them. The views of the child should be given due weight in accordance with the child’s age and maturity. (Article 12)
• A right to education, on the basis of equal opportunity. School discipline should be administered in a manner consistent with the child’s human dignity. (Article 28)

Was it unlawful because it breached the principles of administrative law?

Paragraph 2 of the exclusions guidance states:

Any decision of a headteacher, including suspension or permanent exclusion, must be made in line with the principles of administrative law, i.e. that it is: lawful (with respect to the legislation relating directly to suspensions and permanent exclusions and a school’s wider legal duties); reasonable; fair; and proportionate.

Explore further

Review the governing board’s decision letter, the minutes of the meeting, and any other records of their deliberations. Assess whether these documents suggest that the exclusion may have been unlawful.

Downloads

• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision unlawful (exclusion guidance).
• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision unlawful (discrimination).
• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision unlawful (human rights).
• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision unlawful (administrative law).

Introduction

According to the principles of public law, a punishment must be proportionate to the behavioural offence. In addition, the benefit to the school must not outweigh the personal impact on the young person. Decision‑makers must weigh both the seriousness of the behaviour and the potential consequences for the pupil, ensuring that exclusion is used only as a last resort.

Downloads

If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision disproportionate.

Introduction

Procedural fairness is a key principle in law, and even if a decision is technically correct, it should not be upheld by the independent review panel if the process leading to it was flawed. While there is a body of law underpinning the concept of fairness, it can also be understood in a common‑sense way. It applies to all aspects of organising and running a governing board hearing.

Was the hearing procedurally unfair because of its timing?

Paragraph 100 of the exclusions guidance requires that the governing board consider a permanent exclusion within 15 school days. However, paragraph 105 makes clear that the decision will not be invalid simply because it was not made within these time limits. This gives you room to request a delay to the hearing where it would allow you time to receive information from the school or other services, or to explore alternatives to the permanent exclusion. If you were denied this opportunity when you requested it, and the governing board did not have good reason for doing so, this might constitute an unfair process.

Other aspects of the arrangement can also be unfair, such as if it was scheduled with too little notice for you, or if the evidence was not circulated with enough time for you to read and understand it.

Was the hearing procedurally unfair because it was not long enough to cover all of the issues?

The hearing should be arranged with ample time to cover all the issues, and you should be given equal time to speak and present your case. Any disparity in the opportunity for the parties to present their case would likely constitute an unfair process.

Was the hearing procedurally unfair because the school and the governing board had private conversations about the exclusion?

Paragraph 112 of the exclusions guidance makes it clear that the governing board should not discuss the exclusion with anyone outside the hearing. If the headteacher and school staff are already present in the room at the start of the hearing, or remain behind when the family is asked to leave, this may constitute an unfair process because the school is having access to the governing board in confidence, which may indicate bias and/or an abuse of process. If there is even an appearance of bias, it can undermine the legal validity of the governing board’s decision, because justice must be seen to be done as well as actually done.

Was the governing board’s decision procedurally unfair because the governing board were hostile?

When considering an exclusion, the governing board must remain impartial and approach the case with an open mind. It is not their role to form a view on the exclusion before the hearing, nor to act as an advocate for the school. They must not attempt to discipline the young person for the alleged behaviour – that is not the purpose of the hearing.

If the governing board engages in any of these behaviours, it can create an atmosphere of hostility and make you feel less able to put forward your case. Such conduct may also reveal a bias in favour of the headteacher or school staff, undermining the fairness of the process and potentially rendering the decision procedurally unfair.

Explore further

Review the governing board’s decision letter, the minutes of the meeting, and any other records of their deliberations. Assess whether these documents suggest that the exclusion may have been procedurally improper.

Downloads

• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board hearing unfair (arrangements).
• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board hearing unfair (insufficient time to speak).
• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision unfair (private conversations).
• If applicable, consider using the suggested wording document – Argument to the IRP: Governing board’s decision unfair (hostile).