How helpful is research to practitioners in strategic cases involving challenges to the state, and what do practitioners need?
Rachel Knowles is senior education and community care solicitor at Just for Kids Law and a teaching fellow at University College London’s Centre for Access to Justice. She recently succeeded in challenging the Department for Education’s changes to guidance on permanent school exclusions.
Under the existing guidance, a child should only be permanently excluded from school in circumstances where allowing them to remain would ‘seriously harm the education or welfare of the pupil or others in school’. Under the changes proposed in January 2015, this threshold was substantially lowered to one ‘where a pupil’s behaviour means allowing the pupil to remain in school would be detrimental to the education or welfare of the pupil or others in the school.’ [emphasis added] The changes also removed the stipulation that schools should use permanent exclusion only ‘as a last resort’.
In her judicial review pre-action letters, Rachel argued that the new policy was unlawful because the Department failed to consult before its introduction and because the guidance failed to take account of the likely disproportionate impact on ethnic minority pupils and children with special educational needs (contrary to the Public Sector Equality Duty). As reported in The Guardian, the Department agreed to withdraw the guidance ‘to address some issues with process and … will be issuing updated guidance in due course’.
Just for Kids Law worked on the challenge with Communities Empowerment Network, which said that it ‘can provide overwhelming evidence that the exclusion system impacts disproportionately on ethnic minority pupils and their families, as well as those with special educational needs, some of which also have a disability’.
In strategic cases in particular, such as this one, it is invaluable to provide the evidence to support the arguments and to cite credible research. In this case, Rachel says, there was valuable research available to draw on in making her argument in her letter before action, most of which she was aware of. She looked at government data on the impact of permanent exclusions on offending as well as research carried out by the Children’s Commissioner on the high proportion of excluded pupils with special educational needs. In other strategic cases, however, she wishes there were more data as well as more analysis of the data.
Rachel will be back with a post for the UKAJI blog about research – and whether it means different things to academics than it does to practitioners.
Just a wry comment that if the Administrative Justice and Tribunals Council had not been abolished, it would almost certainly have been consulted on such proposals (as required by the law then in force) and almost certainly have advised against implementing them. If I am right about that, the DfE might have saved itself some money. More importantly, parents might have been relieved of the stress that such proposals can create. A lot of ‘mights” there but the AJTC had a good record of encouraging government departments to think more carefully about inappropriate proposals. Ho hum.