14 months to overcome an unlawful school exclusion: Daniel’s story

12 Mar 2021

Daniel was 13 years old when he set a firework off in school. It was November 2019. This came as a surprise to his family and teachers as Daniel had always engaged well with school and this was completely out of character.

His dad got a call from the headteacher who told that him Daniel would be excluded for 5 days, but that the headteacher might make it permanent after that. The family asked for a meeting with the school and wrote to them, asking for Daniel to have another chance.

The whole family acknowledged that, whilst no one was hurt and no property damaged in the incident, it was still very serious and a poor choice for Daniel to have made. None felt this more so than Daniel himself, who wrote a formal apology to the school, donated 6 months of allowance to a local burn charity, completed a fireworks safety course and produced a leaflet to help other young people avoid the same mistakes.

Despite this, the headteacher decided to permanently exclude Daniel and the school’s governors, who must review all permanent exclusions, decided to uphold it. Daniel, through his representatives, had argued that Daniel had learned a severe lesson and that exclusion was not necessary to prevent him doing something like this again. The governors accepted that this was a one-off incident, but felt that if they did not exclude Daniel, it might encourage other students to repeat his actions.

Daniel’s representatives were concerned that this was not a proper and lawful reason to exclude someone. The law requires that the governors assess whether that young person “will seriously harm the education or welfare of themselves or others” if allowed to return. If the answer is no, they must readmit that young person. Since the governors accepted it was a one-off incident and that Daniel had learned his lesson, they had no lawful choice but to allow him to return to school.

On the strength of this, the family appealed to the Independent Review Panel (IRP) who assess a permanent exclusion independent of the excluding school. The IRP also upheld the exclusion. The family felt the IRP’s decision was poor, it also misapplied the law and, further, the panellists were appointed by the school and there was reason to doubt whether their decision was truly independent.

The family therefore brough a judicial review case in the High Court to ask a judge to overturn the IRP’s decision. A few months after the case was filed in court the IRP suddenly offered to settle it outside of court. They agreed to quash their first decision and send the exclusion back to the governors to consider again by quashing the governors’ decision. This is the strongest power the IRP have as, even where they find an exclusion to be unlawful, they do not have the power to reinstate an excluded young person.

On reconsideration, despite the IRP’s decision, the governors upheld the exclusion a second time. The decision was flawed for many of the same reasons as the first decision, so the family were left with no option but to bring a fresh legal claim in the High Court to challenge the governors’ decision and ask a judge to reinstate Daniel.

Similarly to the IRP in the first review, after the second claim was filed in court, the school offered to settle it. Finally, in January 2021, they offered to reinstate Daniel at the school.

This case shows us how woefully ineffective the system for reviewing school exclusions is. Daniel was excluded in November 2019, and was not readmitted until 14 months later, after he had fought six separate reviews. He missed so much education that he had to repeat a year of schooling, and all to find out that he should not have been excluded in the first place.

This is no good for the public either. The school will have to spend significant amounts of money on theirs and the family’s legal fees.

The enormous emotional strain, frustration and sense of injustice to Daniel cannot be overstated. This was a senseless dispute that leaves Daniel a year behind his friends and peers – a harm that can never be undone.

Cases like this are why Just for Kids Law calls for reform of how the exclusion process works. Daniel was lucky to be able to get a legal team to fight two court cases and secure justice. But even then, it was not quick enough.

In 2019 Just for Kids Law contributed to the Justice Report: “Challenging School Exclusions”, where you can read more about how the system needs to be changed.

Written by Alex Temple, Public Lawyer and Policy Officer at Just for Kids Law.

All names and places have been changed.