School Exclusion Solicitors — Governing Body Review, Independent Review Panel & SEN Challenges

A permanent exclusion can be challenged where the headteacher or governing body: failed to follow the DfE Exclusion Guidance (2023) procedures; failed to properly investigate the incident before excluding; failed to consider the pupil's SEN and whether the behaviour was a manifestation of the SEN; failed to consider whether a lesser sanction was appropriate as a first step; or reached a decision that was disproportionate to the conduct alleged. The IRP applies a judicial review standard — the question is not whether the panel would have made the same decision, but whether the headteacher's decision was lawful, reasonable, and procedurally fair. A solicitor reviews the exclusion against each of these criteria and prepares the challenge for the governing body review and IRP.

Where a pupil's behaviour is a direct consequence of their SEN or disability, excluding for that behaviour may constitute disability discrimination under the Equality Act 2010 (Part 6, s.85(2)(c)). The school must show that the exclusion was a proportionate means of achieving a legitimate aim — and where the behaviour was caused by the disability, proportionality is much harder to establish. DfE Guidance requires headteachers to consider whether the pupil's SEN contributed to the behaviour, whether appropriate adjustments were in place, and whether alternative strategies were attempted. Exclusion where the school failed to make required adjustments or where the conduct is a manifestation of the disability is both unlawful and challengeable at SENDIST. A solicitor advises on whether a disability discrimination claim alongside the IRP challenge is appropriate.

The IRP (Independent Review Panel) consists of a chair, an experienced headteacher, and a lay member (plus a SEN expert if the pupil has SEN — the parent must request this). The hearing typically involves: the school presenting its case for the exclusion; the parent and their representative presenting the challenge; the panel asking questions of both sides; and the panel retiring to make its decision. The panel applies the judicial review standard — not whether it would have made the same decision, but whether the headteacher's decision was reasonable, lawful, and procedurally fair. Where the IRP quashes the decision, it directs the governing body to reconsider (the governing body is not bound to reinstate — but must reconsider properly). Where the IRP recommends reinstatement and the governing body refuses, it must pay a financial adjustment to the school where the pupil re-enrols. A solicitor prepares the IRP application and represents the family at the hearing.

"Back-door exclusions" — the use of repeated fixed-term exclusions to manage a pupil with SEN out of school without following the formal permanent exclusion route — are unlawful. The DfE Guidance states that suspensions should not be used to put pressure on parents to remove a pupil from the school's roll. Where a pattern of repeated short exclusions is being used to manage a pupil with SEN out of school, a solicitor challenges the pattern as: unlawful (failing to follow the DfE Guidance); discriminatory (if connected to SEN or disability); and a failure to implement the EHCP. In serious cases, judicial review of the school's pattern of conduct is available — and a complaint to the Regional Schools Commissioner (for academies) or the LA (for maintained schools) is also appropriate.

Yes — where the excluded pupil has SEN, the parent can request that a SEN expert attends the IRP (EA 2002 s.51A(4)(b)). The SEN expert is not an advocate for the family — they are an independent expert who advises the IRP panel on SEN issues. The school bears the cost of the SEN expert. The SEN expert provides a brief to the IRP on how the pupil's SEN may have contributed to the conduct leading to the exclusion, whether appropriate SEN support was in place, and whether the school properly considered the SEN before excluding. A solicitor advises the parent on how to use the SEN expert effectively alongside the solicitor's own advocacy at the IRP.