CWJ, R (on the application of) v Director of Legal Aid Casework & Anor [2025] EWHC 306 (Admin)

“Failure to consider relevant information”; “Unreasonableness and Failures to follow the statutory guidance”; and “Failure to conduct a fair hearing”

“12. The thrust of the Claimant’s case is that the Exclusion Decision was unlawful because the School failed to produce a written document which demonstrated that the Headteacher had had “due regard” to the PSED when deciding to exclude TZB permanently, and the Reconsideration Decision was itself unlawful because the only lawful option open to the GDC (given the unlawfulness of the Exclusion Decision) was to reinstate TZB. I will refer to these arguments on unlawfulness in relation to the PSED as “Ground 1”. 13. The Claimant also challenges the Reconsideration Decision on the basis that it is inadequately reasoned (“Ground 2”). 14. It was explained that TZB had no wish to return to the School to continue his education, but that his permanent exclusion was nonetheless prejudicial to him as it remained on his record and it affected the way he felt about himself.”

“The Lord Chancellor’s guidance suggests that Article 6 is not engaged in an IRP hearing, as a permanent exclusion is not determinative of a civil right. This relies on the case of R (on the application of LG) v The Independent Panel for Tom Hood School [2010] EWCA Civ 142. Tom Hood was handed down in February 2010 and relied upon Simpson v UK. However, in March 2010 the Grand Chamber of the European Court of Human of Rights decided Orsus v Croatia, which represented a sea change in the approach to Article 6 in the education context. It overturned Simpson v UK and held that Article 6 applied to an education dispute. As such, it would be an error of law to reject this application on the basis that Article 6 is not engaged. In any event, as with immigration ECF, our client could rely on the procedural aspect of Article 8 to the same effect.”

“On 18 November 2021, the Claimant filed submissions to the Defendant setting out why they considered the GDC decision was unlawful. Various arguments were raised, including the decision was unlawful and discriminatory as it breached section 149 Equality Act 2010 (the Public Sector Equality Duty).”

“The reconsideration hearing is stayed while the Claimant pursues a judicial review regarding the IRP’s misapplication of the Public Sector Equality Duty, and its failure to quash the governing body’s decision and direct reconsideration.”

“I have also had regard to [the 2021 ECF Guidance]. I am particularly mindful that the guidance sets out some of the factors that caseworkers should consider in deciding exceptional funding applications, but that it is not intended to be an exhaustive account of those factors. I remind myself that the guidance is not intended to replace the need for consideration of representations in individual cases and any applicable case law. Each application is considered on a case-by-case basis.” (4) The Director noted that: “The only issue that arises in this application is whether the case involves the determination of civil rights or obligations. …” (5) The Director also stated that: “The starting point is that the right to education in Article 2 Protocol 1 ECHR is not a guarantee of a right to be educated at or by a particular educational institution. …” (6) The Director noted the Claimant’s submissions in relation to R (V) v Independent Appeal Panel for Tom Hood School [2009] EWHC 369 (Admin); and [2010] EWCA Civ 142 (“Tom Hood School”)and Oršuš v Croatia (including the submission that paragraph 54 of the 2021 ECF Guidance was incorrect), cited paragraphs 104 to 107 of the judgement in Oršuš v Croatia, summarised what the court said in Tom Hood School and said: “In my view and considering the above authorities properly it is correct that the decision of Orsus v Croatia can be distinguished on the basis that the educational dispute to which Article 6 was held to apply in that case was not about exclusion from school but about discriminatory treatment of Roma children in schools by placing them in separate classes. The court took into account that that breached a freestanding right of the applicants under the state’s constitution not to be discriminated against (paragraph 107). The court also appeared to find at paragraphs 145 and 146 that the relevant practice was of direct relevance to the enjoyment of the right under Article 2 Protocol 1 ECHR, in terms of the right to benefit and receive recognition in respect of the education received. In respect of exclusion cases, Tom Hood remains a binding statement of the law of England and Wales in respect of the Convention right derived from Article 6 ECHR. The significance of the court’s reliance in Tom Hood to the case of Simpson v UK (1989) 64 DR 188 is in any event overstated; Wilson LJ states at paragraph 17 when referring to Simpson “I also agree that a decision of the Commission upon the existence or otherwise of “civil rights” within article 6, reached over 20 years ago, must be treated with considerable caution in the light of more recent widening in the interpretation of the phrase.” (7) In relation to Article 8, the Director quoted what was said in the review request and the renewal letter about Article 8 and said: “I am unable to discern how Article 8 engages with the current factual dynamic as you have not developed your argument beyond the unsupported assertion as to equivalence with immigration cases above. Of course, no finding of a procedural obligation under Article 8 was made in Tom Hood.” (8) The Director concluded as follows: “In the circumstances I have determined that it is not necessary to make the services available to your client under section 10(3)(a) of the Act. I am also obliged to consider under section 10(3)(b) LASPO whether legal aid should be provided because of the risk of breach of your client’s Convention rights. In that respect, it is noteworthy that the decision in Tom Hood has never been disapproved or challenged in the domestic courts in a period of over 12 years.”

“the Defendant erred in law and misapplied section 10 LASPO in finding that there was not a risk of an ECHR breach if ECF was not granted.”

“The Claimant’s submissions at the IRP hearing focused in large part on the Headteacher’s (lack of) compliance with the PSED in permanently excluding [XWJ], who is Black and disabled. The hearing therefore concerned [XWJ’s] right not to be discriminated against in the sphere of education. …”

“On an application by virtue of subsection (3)(c), the review panel may— (a) uphold the decision of the responsible body, (b) recommend that the responsible body reconsiders the matter, or (c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.”

“The review panel’s decision is binding on the relevant person, the principal, the proprietor …”

“The jurisdiction of the First-tier Tribunal (Special Educational Needs and Disability) and County Court to hear claims of discrimination relating to a permanent exclusion does not preclude an independent review panel from considering issues of discrimination in reaching its decision.”

“(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied. (2) This subsection is satisfied where the Director— (a) has made an exceptional case determination in relation to the individual and the services, and (b) has determined that the individual qualifies for the services in accordance with this Part, (and has not withdrawn either determination). (3) For the purposes of subsection (2), an exceptional case determination is a determination— (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of— (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are assimilated enforceable rights, or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.” (a) has made an exceptional case determination in relation to the individual and the services, and (b) has determined that the individual qualifies for the services in accordance with this Part, (and has not withdrawn either determination). (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of— (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are assimilated enforceable rights, or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.”

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

“for Art 6 s. 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law.

“must not discriminate against a pupil— (e) by excluding the pupil from the school;” (c) “Discrimination” includes both direct discrimination contrary to section 13 and indirect discrimination contrary to section 19 of the Equality Act. (2) The right conferred by section 6 of the Human Rights Act 1998 not to be a victim of a violation of a Convention right. Section 6(1) of the Human Rights Act 1998 provides as follows: “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

“The Court notes that the 1976 Act guaranteed persons a right not to be discriminated against on grounds of religious belief or political opinion in the job market including, and of relevance to the instant case, when bidding for a public works contract or sub-contract. In the Opinion of the Court that clearly defined statutory right, having regard to the context in which it applied and to its pecuniary nature, can be classified as a “civil right” within the meaning of Article 6(1) of the Convention. It observes in this regard that in submitting their complaints in accordance with the procedures laid down in the 1976 and 1989 Acts, the applicants were seeking a ruling that they had been denied the opportunity to compete for and obtain work on the basis of their abilities and competitiveness alone and to be given security clearance for this purpose without regard to their religious beliefs or political opinions. Had it been established that the applicants were indeed the victims of unlawful discrimination, the county court in the case of Tinnelly and the Fair Employment Tribunal in the case of the McElduffs were ultimately empowered under the 1976 and 1989 Acts to assess the extent of the applicants’ loss and order financial reparation in their favour including for direct and indirect loss of profits. The fact that the contracts at issue were public procurement contracts or that the applicants’ offers were never accepted cannot prevent that right from being considered a “civil right” for the purposes of Article 6(1).”

“20. According to the Government, the regulation of enrolment in higher-education establishments was a matter falling within the sphere of public law. In the Court’s view, however, this public-law aspect does not suffice to exclude the right in question from the category of civil rights within the meaning of Article 6 § 1. It further points out that in several cases (see, in particular, König and Le Compte, Van Leuven and De Meyere, both cited above; Benthem v. the Netherlands, 23 October 1985, Series A no. 97; and Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99), State intervention by means of a statute or delegated legislation has not prevented the Court from finding the right in issue to have a private, and hence civil, character. Proceedings which fall within the sphere of “public law” in the domestic legal order may come within the scope of Article 6 § 1 where their outcome is decisive for civil rights and obligations. 21. In addition, in the Kök v. Turkey judgment (no. 1855/02, § 36, 19 October 2006), the Court found Article 6 to be applicable to a dispute concerning the setting-aside of the authorities’ refusal to authorise the applicant to practise a medical specialisation. It also found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 61, Reports of Judgments and Decisions 1998-IV). 22. It is important also to emphasise that Ms Araç was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but simply in her personal capacity as the user of a public service. Hence, she was challenging the regulations in force, which she considered prejudicial to her right to continue her studies in a higher-education establishment. 23. Furthermore, in its recent case-law the Court, leaving the door open for the application of Article 6 to the right to education, has consistently examined whether proceedings concerning the regulations on higher education conform to the requirements of Article 6 § 1 (see, by way of example, Mürsel Eren v. Turkey (dec.), no. 60856/00, 6 June 2002; D.H. and Others v. the Czech Republic (dec.), no. 57325/00, 1 March 2005; and Tig v. Turkey (dec.), no. 8165/03, 24 May 2005). 24. Accordingly, given the importance of the applicant’s right to continue her higher education (as regards the key role and importance of the right of access to higher education, see Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005-XI), the Court does not doubt that the limitation in question, imposed by the regulations in issue, fell within the scope of the applicant’s personal rights and was therefore civil in character. 25. In the light of the foregoing, and given that the lawfulness of proceedings concerning a civil right was capable of being challenged by means of a judicial remedy, of which the applicant made use, the Court considers that a dispute (contestation) concerning a “civil right” arose in the instant case and was determined by the Administrative Court. Article 6 § 1 is therefore applicable in the present case.”

“The principal question raised on this appeal is what kind of connection is required between proceedings A (in which an individual’s civil rights or obligations are not being explicitly determined) and proceedings B (in which his civil rights or obligations are being explicitly determined) for article 6 to apply in proceedings A as well as proceedings B. Does the connection have to be so strong that the decision in proceedings A in effect determines the outcome of proceedings B (as Mr Bowers QC submits)? Or is it sufficient that the decision in proceedings A has an effect on proceedings B which is more than merely tenuous or remote (as Mr Drabble QC submits)? Or does the connection lie somewhere between these two positions?”

“… in my view, the jurisprudence contains no clear explanation of what “directly decisive” means. …”

“… likely to be met where the decision in the relevant proceedings has a substantial influence or effect on the later vindication or denial of the Claimant’s Convention right. …”

“(1) Proceedings relating to a contravention of this Act must be brought in accordance with this Part.” “(3) Subsection (1) does not prevent— (a) a claim for judicial review;” (a) a claim for judicial review;”

“(1) The county court … has jurisdiction to determine a claim relating to— (a) a contravention of Part 3 (services and public functions); … (c) a contravention of Part 6 (education);” “(3) Subsection (1)(c) does not apply to a claim within section 116.” (a) a contravention of Part 3 (services and public functions); … (c) a contravention of Part 6 (education);”

“If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds— (a) that it is not within the relevant powers, or (b) that any of the relevant requirements has not been complied with in relation to the order, he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court …”

“In my judgment the phrase “claim for judicial review” as used in section 113 of the Equality Act is a term of art and refers only to a claim for judicial review in the strict sense of a claim under CPR Part 54. …”

“… the Appellant, insofar as she alleges that the ETROs contravene s.29 of the 2010 Act, faces irreconcilable provisions as to jurisdiction: the RTRA 1984 providing for the High Court and the 2010 Act providing for the County Court. …”

“… where the provisions of two statutes cannot stand together, the later provisions prevail and the earlier provisions are treated as repealed by implication or amended to the extent necessary to remove the inconsistency. …”

“A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

“A failure in respect of a performance of a duty imposed by or under this Chapter does not confer a cause of action at private law.”

“… This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. …”

“Cranston J’s finding that the Secretary of State was in breach of the public sector equality duty also means that the ministry is not in a position to show that the discrimination involved in the different provision made for men and for women is a proportionate means of fulfilling a legitimate aim. It may or may not be. But it is for the Secretary of State to show that the discrimination is justified. Given that the Ministry has not addressed the possible impacts upon women, assessed whether there is a disadvantage, how significant it is and what might be done to mitigate it or to meet the particular circumstances of women offenders, it cannot show that the present distribution of APs for women is a proportionate means of achieving a legitimate aim.”

“We accept (as is common ground) that the PSED is a duty of process and not outcome. That does not, however, diminish its importance. Public law is often concerned with the process by which a decision is taken and not with the substance of that decision. This is for at least two reasons. First, good processes are more likely to lead to better informed, and therefore better, decisions. Secondly, whatever the outcome, good processes help to make public authorities accountable to the public. We would add, in the particular context of the PSED, that the duty helps to reassure members of the public, whatever their race or sex, that their interests have been properly taken into account before policies are formulated or brought into effect.”

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

“106. As to the present case, it seems clear that a “dispute” arose in respect of the applicants’ initial and then continuing placement in Roma-only classes during their schooling in primary schools. The proceedings before the domestic courts concerned the applicants’ allegations of infringement of their right not to be discriminated against in the sphere of education, their right to education and their right not to be subjected to inhuman and degrading treatment. The applicants raised their complaints before the regular civil courts and the Constitutional Court and their complaints were examined on the merits. 107. Furthermore, the applicants’ right not to be discriminated against on the basis of race was clearly guaranteed under art.14(1) of the Constitution and, as such, enforceable before the regular civil courts in the national legal system (see, mutatis mutandis, Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, at [42], 28 February 2008, and Gülmez v. Turkey, no. 16330/02, at [29], 20 May 2008). In view of the above, the Court concludes that art.6(1) is applicable in the instant case.”

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“… the engagement of article 8 is of its nature a question of fact to be determined on the facts of the particular case …”

“… that there may be cases in which the permanent exclusion of a pupil from, say, the only school in an area which he or she had attended for years could engage Article 8 rights.”

“43. Thus it is said that being excluded from the School might infringe V’s arguable Article 8 rights. I am unable to accept that for four main and to some extent overlapping reasons which individually and cumulatively lead me to that conclusion. First, there is no suggestion whatsoever in the contentions put before the Panel or in the claim form that V’s personal relationships have been interfered with in such a way whatsoever by his exclusion from the School. In other words this case was totally different from those of the claimants in Wright’s case. Second V has not wanted to return to the School and that decision undermines an Article 8 claim. 44. A third reason is that even if Article 8 (1) might have been engaged, then Article 8 (2) would preclude the claimant showing even an arguable article 8 right as it provides insofar as is relevant that “there shall be no interference by a public authority with the exercise of [the Article 8 right] except such as is in accordance with the law and is necessary in a democratic society in the interests of … public safety …for the prevention of disorder or crime…or for the protection of the rights and freedoms of others”

“A decision of an Independent School Appeal Board to permanently exclude a pupil does not involve the determination of civil rights and obligations.”

“Proceedings before an Independent School Appeal Board in relation to the permanent exclusion of a pupil may involve the determination of civil rights and obligations, if on the particular facts the exclusion is an arguably disproportionate restriction on the right to an education under Article 2 Protocol 1 of the European Convention of Human Rights, and/or if such exclusion arguably gives rise to a right to a judicial remedy under the applicable law.”

“In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 181F (reading the word “permits” in the proper way as “sanction” or “positively approve”) and by adapting Lord Templeman’s words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.”

“In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (ie the type of case under consideration in Gillick); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. …”