The Independent Review Panel (IRP) has to decide on the balance of probabilities whether your son/daughter has done what he/she is alleged to have done. If more than one incident of misconduct is alleged, the IRP must decide on each incident.
The lRP must apply the Civil Law standard of proof, ie on the balance of probabilities, which requires the IRP to decide that it was "more likely then not" that your son/daughter has done what is alleged.
The IRP then goes on to review the Governing Board decision not to reinstate your child. In reviewing that decision it must consider the interests and circumstances of your child, including the circumstances in which he/she was excluded, and have regard to the interests of other pupils and people working at the school.
The IRP does not have the power to reinstate your child but can decide to:
- uphold the exclusion i.e. refuse your application; or
- recommend that the governing board reconsiders their decision; or
- quash the decision and direct that the governing board considers the exclusion again.
The IRP may also:
- direct the governing board to place a note on your child's educational record;
- in the case of a governing board's decision, order that a readjustment be made to the school's budget or, in the case of an Academy, order that the Academy must make a payment directly to the local authority in which the Academy is located, if following a decision by the IRP to quash the original decision, the governing board:
i) reconsiders the exclusion and decides not to reinstate your child (where you want your child to be reinstated), or
ii) fails to reconsider the exclusion within 10 school days after notification of the IRP's decision.
The IRP may only quash the decision on the principles applicable to judicial review. Therefore, the IRP should apply the following tests:
- Illegality – did the Head Teacher / Principal and/or Governing Board act outside the scope of their legal powers in taking the decision to exclude?
- Irrationality – was the decision of the Governing Board not to reinstate your child so unreasonable that it was not one a sensible person could have made?
- Procedural Impropriety - was the process of exclusion and the Governing Boards' consideration so unfair or flawed that justice was clearly not done?
Procedural impropriety means not simply a breach of minor points of procedure but something that has a significant impact on the quality of the decision making process.
The Department for Education's Guidance (paragraph 160) gives the following examples:
- Failing to notify parents of their right to make representations;
- Governing Board making a decision without having given parents an opportunity to make representations;
- Failing to give reasons for a decision; or
- Being a judge in your own cause e.g. if the Head Teacher who took the decision to exclude were also to vote on whether to uphold the exclusion.