Quick Guide: independent review panels

This Quick-Guide sets out the function and procedure of the independent review panels.

This Quick Guide covers:

  1. The requirement to arrange an IRP on request;
  2. The responsibilities of an IRP before a hearing;
  3. The responsibilities of the IRP during the hearing and the grounds of review;
  4. The responsibilities of the IRP once the review has concluded;

1. The requirement to arrange an IRP on request

Requests for a review of a governors’ decision must be sent to the local authority A government organisation with jurisdiction over a local area such as a borough or county, often called a local council. Where multiple authorities overlap, the local education authority (LEA) has responsibility for excluded children. if the excluding school is a maintained school A school that is funded by and under the control of the local authority A government organisation with jurisdiction over a local area such as a borough or county, often called a local council. Where multiple authorities overlap, the local education authority (LEA) has responsibility for excluded children. . . 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 governors was communicated, then an IRP must be arranged, with the cost of the review being met by the local authority A government organisation with jurisdiction over a local area such as a borough or county, often called a local council. Where multiple authorities overlap, the local education authority (LEA) has responsibility for excluded children. for a maintained school A school that is funded by and under the control of the local authority A government organisation with jurisdiction over a local area such as a borough or county, often called a local council. Where multiple authorities overlap, the local education authority (LEA) has responsibility for excluded children. . , and the academy trust for an academy. Any request received outside of the 15 school day timeframe must be rejected.

The request should include the grounds for requesting a review.

If the family want an SEN Special Educational Needs, a requirement a child has in school without which they will be disadvantaged when compared to their peers. 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 Statutory Exclusions Guidance Statutory guidance to schools, governors and local authorities on the law and process for excluding, and reviewing exclusions. The 2017 edition of the guidance is the current version. . 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.

2. 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.

The IRP must appoint either three or five panel members. In practice, it is very rare for a panel to appoint give members.

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 Special Educational Needs, a requirement a child has in school without which they will be disadvantaged when compared to their peers. 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 form all parties, create a bundle and circulate it to all parties at least five school days before the hearing.

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

The IRP’s job is not to review of the headteacher’s decision, like the governors do. Their job is to review the decision of the governors 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 A Court that hears cases of judicial review A type of court case in which a judge is asked to review the decision of a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. and correct errors in decision making. . It has a range of powers to order a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. , such as a school or independent review panel, to rectify an error in their decision making. 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 A type of court case in which a judge is asked to review the decision of a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. and correct errors in decision making. as far as possible. Therefore, it must consider every ground for judicial review A type of court case in which a judge is asked to review the decision of a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. and correct errors in decision making. , and not just those included in the Exclusions Guidance Statutory guidance to schools, governors and local authorities on the law and process for excluding, and reviewing exclusions. The 2017 edition of the guidance is the current version. .

The IRP should not consider evidence that was not before the governors’ panel, unless the governors should reasonably have been expected to have obtained that evidence for themselves or unless the IRP is considering a finding of recommended reconsideration One of the findings the IRPs can make. The effect is to send the decision back to the governors to consider again. There is no penalty if the governors come to the same decision again and uphold the exclusion. , rather than directed reconsideration.

There is no law to tell the IRP what the order or content of a review hearing should be. However, a fairly typical format for a is:

  1. Introductions from the panel and attendees;
  2. The school makes a statement;
  3. The panel and family ask questions of the school;
  4. The family make a statement;
  5. The panel and school ask questions of the family;
  6. The school makes a closing statement;
  7. The family makes a closing statement.

Whilst the order in which these components take place may vary, it is important that they all take place.

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 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, governors 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 the hearing room 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 are 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.

4. The responsibilities of the IRP after the hearing

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 are also bringing a discrimination claim in the First Tier Tribunal A judicial body that will hear appeals against exclusions if the family believe the young person has been the victim of discrimination on the basis of disability. or County Court, or bringing a claim for judicial review A type of court case in which a judge is asked to review the decision of a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. and correct errors in decision making. .

Recommend reconsideration

By recommending reconsideration, the IRP sends the decision back to the school’s governors. Whilst this decision titled a “recommendation”, in fact there is not much choice in it for the governors and the High Court A Court that hears cases of judicial review A type of court case in which a judge is asked to review the decision of a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. and correct errors in decision making. . It has a range of powers to order a public body An organisation that performs a public function with public funds. Includes schools (includes academies and free-schools, but not independent or private schools), CAMHS, the local authority and the police. , such as a school or independent review panel, to rectify an error in their decision making. has said that it cannot envisage a scenario where it would be acceptable for governors to fail to reconsider. The governors have to meet within 10 working days to reconsider.

If the governors reconsider the exclusion and refuse to reinstate, there is no cost to the school.

Directed reconsideration

By directing reconsideration, the IRP quashes the governors’ decision to uphold the exclusion and sends it back to be reconsidered. The governors must meet within 10 working days to reconsider. If the governors refuse to reinstate 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 by amended by £4,000.

The IRP’s clerk must immediately report the outcome to the local authority A government organisation with jurisdiction over a local area such as a borough or county, often called a local council. Where multiple authorities overlap, the local education authority (LEA) has responsibility for excluded children. and, if the school is in a different local authority A government organisation with jurisdiction over a local area such as a borough or county, often called a local council. Where multiple authorities overlap, the local education authority (LEA) has responsibility for excluded children. to the one in which the young person lives as well as the school's.

Obtaining the decision

Most of the time, you will not get a decision on the day.

The IRP are directed to communicate the decision to the family “immediately”. Usually, in practice you should expect to get the decision within the first week after the hearing.

5. the governors’ duties once they have reviewed an exclusion

Minutes

The IRP must keep a minute of the meeting. Whilst there is no right of access to these minutes included in the Exclusion Guidance, there is no reason why they should be withheld. They constitute personal information for the young person so, if necessary, a person should be able to request them by way of subject access request The legal process for obtaining information about yourself or a person you are representing that is held by a school or other body. .

The IRP’s decision letter must set out the reasons for its decision in “sufficient detail” to enable all parties to understand why it was made.

However, there is also a general public law duty to give reasons that provides greater clarity to the detail of the reasoning that must be provided.