Introduction

This Quick-Guide sets out the function and procedure of the independent review panel (IRP)

If you are attending an IRP hearing and want help preparing your written submissions you can follow the Step-by-Step Guide: Preparing arguments for the independent review panel

If you are attending an independent review panel hearing and want help on what to do on the day, follow the Step-by-Step Guide: Attending the independent review panel hearing

The requirement to arrange an IRP on request

Requests for a review of a governing board's decision must be sent to the local authority if the excluding school is a maintained school. The request must be sent to the principal of the excluding school if it is an academy.

If a request for review is received within 15 school days of the date the decision of the governing board was communicated, then an IRP must be arranged, with the cost of the review being met by the local authority for a maintained school and the academy trust for an academy. Any request received outside of the 15-day timeframe must be rejected. The request should include the grounds for requesting a review. If the family wants an SEN expert to attend the panel, they should include this in their application for review.

The IRP must be arranged within 15 school days of the request being received, according to the exclusions guidance. In practice, this is not always the case, and families may want to request a delay in their own interests if their availability is limited. In addition, even where the review begins within this time frame, the family, school, or IRP may suggest an adjournment to give parties the time to prepare.

The responsibilities of the IRP before a hearing

The IRP must choose a venue that is accessible to all parties. It is good practice for the IRP to be held somewhere other than the excluding school, so that it is "neutral" ground. However, this is not a requirement. There must be at least one panellist who is or has been a head teacher in the past five years, a person who is or was a governor in the past five years, and a chair who has no experience as a paid member of staff at a school. All panellists must have no connection to the family or the excluding school. The IRP should appoint an SEN expert who is independent of all the parties if one has been requested. The IPR must appoint a clerk who is independent of all the parties. The clerk will have responsibility for the administration of the panel. The clerk should collect grounds and evidence from all parties, create a bundle, and circulate it to all parties at least five school days before the hearing.

The responsibilities of the IRP during a hearing and the grounds of review 

The IRP’s job is not to review the headteacher’s decision, like the governing board does. Their job is to review the decision of the governing board to uphold the exclusion. This is an important distinction. The IRP may find that the governors need to reconsider the exclusion because they have not performed a satisfactory review, even if the IRP does not find anything wrong with the school exclusion itself.

The 2014 High Court case of R(CR) v Independent Review Panel for the London Borough of Lambeth considered the scope of the IRP review. The Court found that the job of the IRP is to perform a judicial review as far as possible. When considering the governing board’s decision in light of the principles applicable in an application for 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.

The IRP should not consider evidence that was not before the governing board, unless the governing board should reasonably have been expected to have obtained that evidence for themselves or unless the IRP is considering a finding of recommended reconsideration rather than directed reconsideration.

There is no law to tell the IRP what the order or content of the hearing should be. The chair 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. There is generally a typical format to the IRP which is stated below. While the order in which these components take place may vary, it is important that they all take place.

• Introductions from the panel and attendees;
• The school makes a statement;
• The panel and family ask questions of the school;
• The family make a statement;
• The panel and school ask questions of the family;
• The school makes a closing statement;
• The family makes a closing statement.

It is a requirement that panellists ensure that the hearings are procedurally fair. Procedural fairness is a public law concept. It says that flawed or unfair processes will result in a decision to exclude someone from being challengeable, even where the substance of the decision is not questioned. Every body that oversees exclusions has a duty to be fair, including the headteacher, governing board, and independent review panel.

There are a number of standard practices that panel hearings should observe to satisfy this requirement. These include that:

• All parties should enter and leave the hearing room at the same time. If one party leaves, no others should remain behind to ensure they cannot discuss the case with the IRP in private.
• All parties should be given equal time, and parties should not be allowed to speak over one another.
• Sufficient time should be allowed for the hearing so submissions can be fully heard.
• A person should be able to present the arguments they wish to in their defence, and the IRP must not pre-judge arguments, dismiss them, or prevent a party from making them.

These practices are not exhaustive, and a common-sense approach to fairness should touch on every part of the review process. It should be remembered that there will inevitably be a disparity in power between the family and the school, as the school is well practiced and has an existing relationship with the governors. Fairness will, at times, require extra care to ensure that the family is able to engage with the process, even if this means giving liberties to the family that might not be available to the school.

For example, James is in the middle of his IRP hearing. He wants to add a new point during his closing statement, but the governors object, saying that this is not the time to introduce new information. This is technically true, but James has never been through this process before and is alone against well-practiced governors.

In such circumstances, it would be reasonable to expect the school to know the process and stick to it, but greater care should be taken to ensure that James is able to present his case, even if he has not followed all the normal procedures.

You can read more about approaching fairness at the hearing in the Step-by-Step Guide: Attending the independent review panel hearing

What decision can the IRP reach? 

The IRP must come to one of the following three conclusions:

Uphold the exclusion

The IRP may uphold the exclusion. 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 reconsideration

By recommending reconsideration, the IRP sends the decision back to the school’s governing board. While this decision is titled "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. The governing board has to meet within 10 working days to reconsider. If the governing board reconsiders the exclusion and refuses to reinstate the young person, there is no cost to the school.

Directed reconsideration

By directing reconsideration, the IRP quashes the governing board's decision to uphold the exclusion and sends it back to be reconsidered. The governing board must meet within 10 working days to reconsider. If the governing board refuses to reinstate the young person, then the IRP will be expected to take a number of steps. Firstly, the IRP should direct the school to update the student’s record to keep a note of their objections to the exclusion. In addition, the IRP should be expected to order that the school’s budget for the year be amended by £4,000. The IRP’s clerk must immediately report the outcome to the local authority and, if the school is in a different local authority, to the one in which the young person lives as well as the school's.

Obtaining the decision

Generally, the clerk to the IRP will write to the family, the headteacher, and the governing board within five working days of the IRP review detailing the IRP’s decision and reasons for making that decision.