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

The claimant sought judicial review of the Director of Legal Aid Casework’s decision of 28 June 2022 refusing exceptional case funding (ECF) for representation before an independent review panel in relation to her son’s permanent school exclusion. The key legal issues were whether the review panel proceedings involved the determination of civil rights or obligations for the purposes of Article 6(1) ECHR (and thus engaged the ECF test in section 10 LASPO), and whether any procedural requirements of Article 8 or Article 2 of Protocol 1 (alone or read with Article 14) made exceptional funding necessary.

The judge analysed (i) the nature and limits of the public sector equality duty (section 149 Equality Act 2010) and the statutory civil right not to be discriminated against in education (section 85 Equality Act 2010); (ii) the “directly decisive” requirement for Article 6; and (iii) the content and lawfulness of the Lord Chancellor’s 2023 ECF Guidance (paragraph 8.2). Applying Gudanaviciene and the Strasbourg and domestic authorities (including Tom Hood School and Lord Grey School), the court concluded that the Director had not erred in law. Critically, the material ECF application documents did not put the Director on notice that the review panel would be asked to determine a discrimination claim under section 85 or to decide a Convention right under Article 2 Protocol 1 or Article 8; while a review panel can in principle make directly decisive findings, it had not done so in the present case. The challenge to paragraph 8.2 of the 2023 ECF Guidance was rejected as unarguable.

Procedurally the judge granted permission to amend in relation to the challenge to the second review decision (and permitted certain amendments invoking Article 2 Protocol 1 and Article 14), dismissed the application for judicial review of the second review decision, and refused permission to amend so as to challenge paragraph 8.2 of the 2023 ECF Guidance.

Background and parties. The claimant (mother of a pupil, referred to as XWJ) challenged the Director of Legal Aid Casework’s decision dated 28 June 2022 refusing exceptional case funding for legal representation before an independent review panel that had considered and declined to quash a governors’ disciplinary committee decision to uphold a permanent exclusion. The Lord Chancellor was a second defendant by way of proposed challenge to the 2023 Exceptional Case Funding Guidance; MIND intervened in support of the claimant. The factual backdrop included the pupil’s Black Caribbean heritage, special educational needs and disabilities, and timing of the exclusion shortly before GCSEs.

Relief sought and procedural posture. The claimant sought judicial review of the Director’s second review decision refusing ECF and sought permission to amend to challenge paragraph 8.2 of the Lord Chancellor’s 2023 ECF Guidance. Earlier procedural steps included an initial refusal of ECF, an internal review, a letter before action, and prior litigation in which aspects of the underlying exclusion and reconsideration were considered (including a separate judgment identified as R (TZA) v A Secondary School [2023] EWHC 1722 (Admin)). Permission to pursue JR of the second review decision was granted by Morris J; Baker J had earlier refused permission. The review panel’s decision was available to the Director at the time of the second review decision.

Issues framed by the court. The court framed the issues as: (i) whether the review panel proceedings involved the determination of civil rights or obligations for Article 6(1) purposes and thus could attract a requirement to provide civil legal services under s10 LASPO; (ii) whether the procedural aspects of Article 8 or Article 2 Protocol 1 (and Article 14) engaged the need for ECF; (iii) whether the public sector equality duty (section 149 Equality Act 2010) gives rise to a civil right within Article 6; (iv) whether a review panel’s decision could be “directly decisive” of civil rights (and whether it was so here); and (v) whether paragraph 8.2 of the 2023 ECF Guidance was unlawful under the relevant judicial review tests (Gillick categories and the UNISON access-to-justice principle).

Reasoning and outcome on the issues. The judge applied the statutory text of s10 LASPO and the principles summarised in Gudanaviciene about the Director’s assessment of risk of a Convention breach. The court held that:

• The ECF application materials (the application, review request and letter before action together with the exclusion, GDC papers and the review panel decision) did not put the Director on notice that the review panel would determine a discrimination claim under section 85 Equality Act 2010 or a Convention violation under Article 2 Protocol 1 or Article 8. The Claimant had not pleaded a discrimination claim under section 85 in the ECF papers sent to the Director.
• Section 149 (the public sector equality duty) is a duty of process and, while legally important, does not of itself confer a private civil right for Article 6 purposes; where a claim of discrimination exists it is section 85 that provides the statutory private right in education. On the facts, the review panel had not been asked to, and had not, decide a section 85 discrimination claim.
• Although a review panel can in principle make a directly decisive decision for Article 6 (because its decision is binding pursuant to the regulations), the shape of the present proceedings meant no directly decisive determination of a civil right under section 85 or a Convention right had been made or was fairly presented in the ECF materials.
• Article 8 and Article 2 Protocol 1 (and Article 14) were not engaged in the review panel proceedings as pleaded to the Director in the ECF application; the Director was not obliged to consider arguments that had not been advanced in the application materials.
• The claimant’s challenge to paragraph 8.2 of the 2023 ECF Guidance failed: the guidance did not positively authorise unlawful conduct, it did not purport to be exhaustive, and the Gillick / A v SSHD tests and the UNISON access-to-justice principle did not show the guidance was unlawful or created a real risk of denial of access to justice.

Remedy sought and disposal. The court granted permission to amend in respect of the challenge to the second review decision, dismissed the judicial review of the second review decision, granted no permission to amend so as to add a challenge to paragraph 8.2 of the 2023 ECF Guidance, and expressed reasons as above. The court took into account the wider context (numerous permanent exclusions and their disproportionate impact on children with protected characteristics) but found no legal error in the Director’s decision on the material before her.

The claim is dismissed. The court held that the Director did not err in law in refusing exceptional case funding on the basis that the review panel proceedings, on the material before the Director, did not involve a determination of civil rights or otherwise give rise to a sufficiently serious risk of a breach of Convention rights such that ECF was required under section 10 LASPO. The public sector equality duty (section 149) does not of itself confer a civil right for Article 6 purposes and, although a review panel can in principle make directly decisive findings, this was not the position on the ECF application materials. The challenge to paragraph 8.2 of the 2023 ECF Guidance is refused as unarguable and discretionary permission to amend to pursue that challenge is refused. Permission to amend in respect of the challenge to the second review decision is granted, but the substantive JR is dismissed.

The judgment records prior procedural steps: the ECF application and reviews in 2022, the claimant's earlier application for judicial review of the governing body’s reconsideration decision (see R (TZA) v A Secondary School [2023] EWHC 1722 (Admin) (UTJ Church) which dismissed the claimant’s JR at first instance and against which permission to appeal to the Court of Appeal has been granted), an initial refusal of permission to apply for JR by Andrew Baker J on 9 March 2023, and a subsequent hearing before Morris J on 21 November 2023 which granted permission to apply for JR of the Director’s second review decision and ordered proposed amendment steps. The claim form in this matter was issued on 28 September 2022.