CWJ, R (on the application of) v Director of Legal Aid Casework & Anor

Exceptional case funding for representation before a permanent-exclusion review panel depends on the particular shape of the proposed proceedings. Article 6 may apply where the proceedings concern a genuine dispute over a civil right and the panel’s decision is directly decisive of that right. A right not to be discriminated against under section 85 of the Equality Act 2010 may qualify. The public sector equality duty under section 149 does not itself confer a civil right. Article 2 of Protocol 1 does not guarantee education at a particular institution, and Article 8 engagement is fact-sensitive. Guidance on exceptional funding is unlawful under the Gillick test only where it authorises or approves unlawful conduct, or falls within the related recognised categories of misleading legal guidance. Guidance need not be exhaustive.

The claimant challenged the Director’s decision of 28 June 2022 refusing exceptional case funding for representation before a review panel considering her son’s permanent exclusion from school. The proposed proceedings raised public law arguments concerning the public sector equality duty, alleged discrimination, Article 6, Article 8, and Article 2 of Protocol 1 taken with Article 14 of the Convention.

The claimant also sought permission to amend her claim to challenge paragraph 8.2 of the Lord Chancellor’s 2023 exceptional case funding guidance. Permission to challenge the second review decision was granted. The central issues were whether the review panel proceedings involved the determination of civil rights and obligations, and whether the guidance unlawfully misstated or omitted relevant legal principles.

1. Second review decision. The judicial review claim was dismissed. The lawfulness of the Director’s decision had to be assessed by reference to the material supplied to her, including the ECF application, review request, pre-action letter, and documents relating to the exclusion and review proceedings.
2. Under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, exceptional funding may be required where refusal would breach, or create a relevant risk of breaching, Convention rights. The assessment is case-specific and requires consideration of the likely shape of the proposed litigation and effective access to justice.
3. The public sector equality duty under section 149 of the Equality Act 2010 is a duty of process. It does not confer a private-law cause of action or, in the circumstances of this case, a civil right for Article 6 purposes. Non-compliance may make discrimination harder to justify, but does not itself establish discrimination and does not automatically invalidate a decision.
4. The right not to be discriminated against in education under section 85 of the Equality Act 2010 is capable of being a civil right. A review panel could, if discrimination were properly raised, make a decision quashing the governing body’s decision because the exclusion was unlawful by reason of discrimination. Such a decision would be within the panel’s judicial-review jurisdiction and binding under regulation 25(6) of the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012, and would therefore be capable of being directly decisive.
5. On the material before the Director, however, no discrimination claim was advanced as a ground of challenge in the ECF application or review request. References to disproportionate exclusion of Black pupils and pupils with special educational needs did not amount to an allegation of direct or indirect discrimination in the individual case.
6. Article 2 of Protocol 1 does not guarantee education at a particular school. The review panel had not been asked to determine an alleged violation of that provision, alone or with Article 14. Nor had the ECF application formulated an Article 2 procedural-right argument. The reliance on Oršuš v Croatia did not alter that conclusion.
7. The Article 8 argument was also insufficiently formulated. Although mental health and personal development may fall within private life, the material before the Director did not explain how Article 8 was engaged in the review panel proceedings. The court declined to give broader guidance on the circumstances in which school exclusion might engage Article 8.
8. Paragraph 8.2 of the 2023 guidance was not unlawful. Read with the guidance as a whole, it correctly recognised that permanent-exclusion proceedings may involve civil rights on particular facts. It did not positively authorise unlawful conduct, purport to be exhaustive, or create a real risk of preventing access to justice. Permission to amend the claim to challenge the guidance was therefore refused.

First-instance judicial review in the Administrative Court. Permission to challenge the Director’s second review decision was granted by Morris J. The claim was dismissed by Mr Justice Lavender. Permission to amend to challenge paragraph 8.2 of the 2023 guidance was refused.