The education problems still covered by legal aid
LASPO took much – but not all – education law out of the scope of legal aid. There is still a lot that can be done to protect children having problems with their schooling. Dan Rosenberg explains the types of cases that are still funded, and how practitioners can make sure that as many young people as possible benefit from the help that remains available.
There is a widespread public perception (in some cases shared by advisers and community organisations) that legal aid is no longer available for anything other than criminal cases. Legal Action’s ‘Use it or lose it’ series will show that legal aid remains widely available in civil cases for many who need it, both to obtain advice and to take and defend legal proceedings.
All education legal aid work must go through the telephone gateway, accessed by calling the standard Civil Legal Advice (CLA) number: 0345 345 4 345. Face to face appointments can be arranged where necessary. Education law is more suited to the telephone contract than other areas as most potential clients are parents, who often have relatively stable lives, at least compared with those assisted in other areas of legal aid. It is their children who have the problems. Furthermore, and particularly in the case of special educational needs (SEN), much of the work is heavily dependent on documentation and reports, as opposed to detailed instructions from vulnerable individuals, as in areas such as community care, which are not currently subject to the gateway.
Staff in the telephone gateway’s call centre are initially responsible for working out whether a matter is within the scope of legal aid, and when the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came into force there were some difficulties with this. There have been extensive efforts by the providers working in the field both to train gateway staff and modify the ‘sifting’ process. Now, any case potentially in scope should get through the gateway and reach one of the three specialist firms that have a contract to provide legal aid for education law in England and Wales (Maxwell Gillott, Coram and Tower Hamlets Law Centre®). Potential clients are also able to request which of the three organisations their case is sent to. If they do not, the case is allocated on a rota system.
What remains in scope
Special educational needs
Anything relating to SEN/Education, Health and Care Plans (EHCP) is in scope. Most charities working with children with disabilities are aware that SEN remains in scope, as they were part of the campaign to preserve it. They signpost those who may be eligible to the CLA. The government website also makes clear that SEN issues remain in scope.1See: http://legal-aid-checker.justice.gov.uk/.
There has not been a particular drop-off in SEN cases.
It is generally easy to spot when issues relating to SEN are a factor. There is no need to work out what the issues are or what needs doing about them. Individuals can be referred to the CLA and so long as they mention that their child has some sort of SEN when explaining the problem, the call should get through the gateway. The case will then be allocated to one of the specialist firms and, assuming it is within the scope of legal aid and meets the merits criteria, the firm will be able to take it on.
Key words to look out for are ‘statement’; ‘EHCP’; ‘annual review’; ‘statutory assessment’; ‘EHC assessment’; ‘special educational needs tribunal’; ‘tribunal appeal’; ‘educational psychologist’ etc.
Discrimination remains within the scope of legal aid, with cases arising from schools dealt with under the education law contract, and those arising from further education and higher education institutions dealt with under the discrimination contract. There are relatively few discrimination cases post-LASPO and postcompulsory use of the gateway, but there were also relatively few beforehand. That is not to say that there is very little discrimination taking place. It is just that a lot of the time, the discrimination is at an institutional level or feeds through to decisions for which it is hard to prove that they have occurred because of discrimination.
However, the author’s experience is that when parents feel their children are being discriminated against, there is a legal remedy a substantial amount of the time, albeit not necessarily one based on discrimination. For example, a parent of an autistic child may say that s/he is being discriminated against because s/he is not getting the speech and language therapy that s/he should be getting and that is in his/her statement of SEN. There would be a very quick way to remedy the situation, namely, threaten judicial review (JR) to enforce the provision in the statement – a discrimination-based Special Educational Needs and Disability Tribunal claim would not be the way forward.
JR remains in scope but it is often not obvious that the remedy is there – it requires a detailed knowledge of education law to spot the potential JR. Currently, very few potential JRs are coming through the gateway to the three specialist organisations. No doubt further improvements can be made, but initial problems with the gateway have now been dealt with. Operators are no longer reliant on callers mentioning that there is a potential JR or saying that they wish to challenge a decision of a public authority. Any situation that has the potential for a JR should be transferred and it will be for the three firms with the contract to then work out whether it is actually in scope.
If the problem is not with the gateway, it must lie elsewhere. A significant amount of unlawful decisions are made by schools/local authorities. Taking just one issue, illegal exclusions, the Children’s Commissioner produced a report last year indicating that they are commonplace and affect thousands of children, mostly from disadvantaged backgrounds or with SEN.2Available at: www.childrenscommissioner.gov.uk/content/publications/content_662.
The long-term consequences for children (and society) are severe yet virtually none of these cases end up coming through to legal aid lawyers.
Why is this?
•Many parents/pupils have never heard of JR so will not realise it is an option, and are therefore unaware that a legal remedy exists.
•Many pupils/parents are unaware that legal aid exists for education law.
•Many solicitors, advisers and charities wrongly believe that legal aid no longer exists for education law. Of those who are aware that it was reprieved, the majority think that only SEN remains in scope, and that other problems cannot be dealt with.
•There is no government advertising/publicity about the scheme.
Types of case where JR may be an option
Children out of school
Any cases where children are out of school may have a potential remedy by way of JR. Results can often be achieved very quickly; one letter often does the trick.
For example, the author has recently dealt with the following:
•A teenage boy in his GCSE year unable to attend school (or leave his home) because of the risks of gang-related violence – the local authority was forced to provide home tuition for him.
•A very bright A* girl under the care of mental health services, whose anxieties and fear of bullying were such that she could no longer attend school. Similarly, the threat of a JR against the local authority led to it persuading the school to provide her with home tuition.
•A child out of school because of the unlawful withdrawal of a place offered once the school found out some of his background – the school was forced to take him.
All these cases can still be dealt with under the legal aid scheme. Were legal aid not available, the consequences for the child in every case would have been very significant. Obviously, there are also occasions where there is no JR and the child is out of school as a result of the actions of the parent. Such cases would be out of scope and the family would be advised accordingly once they got through to a lawyer.
These are exclusions that are not ‘official’ exclusions and they are always unlawful. Typical practices include schools telling children/parents that the child is not allowed back in school or using the threat of exclusion to persuade parents to withdraw their child from the school. The threat of JR forces schools to let the children back, if that is what the parents wish.
Formal (official) exclusions
There are alternative remedies (namely statutory appeals) when there is a formal exclusion and these appeals are not within the scope of legal aid. However, a significant amount of children are formally excluded as a result of their SEN, which brings them within scope. Often, an exclusion will also result in a child being out of school (see above).
JR is also available to challenge decisions of independent review panels (IRPs), which consider the case where a governing body has upheld the headteacher’s decision to exclude permanently, and also when the school or governing body does not follow recommendations from an IRP.
Most straightforward school admissions cases are outside the scope of legal aid. That does not mean, however, that all issues relating to school admissions are outside scope. Some schools are keen not to admit certain pupils, particularly when making ‘in-year’ admissions. This is especially true if pupils have been out of school for some time, have been excluded once, or the school otherwise thinks they may be detrimental to its results and league tables. Very often, schools employ unlawful means to avoid admitting such pupils. The one the author comes across most often is refusing entry, but not giving a right of appeal. Another is not processing applications at all or other similar delaying tactics so as to reduce the chances of having to admit that particular child. All of these tactics are unlawful and can be challenged by way of JR. Often one letter is enough.
Looked after children
There are numerous legal obligations towards looked after children in respect of their education. Local authorities have powers to direct schools to take children and duties in respect of preparing personal educational plans. If looked after children are having (non-academic) difficulties with educational provision, it is likely that there is a remedy and it is likely that it will be within the scope of legal aid.
Schools can require children to attend alternative provision, for behavioural or other reasons. Although there are generally procedures that they have to follow, these are often not followed. For some children, alternative provision may be beneficial, but for others less so. Sometimes full-time education is not being provided, which is (almost always) unlawful.
Most cases relating to student complaints and any academic issues are likely to be outside the scope of legal aid, and complaints procedures will need to be followed, including, if appropriate, a complaint to the Office of the Independent Adjudicator. Complaints procedures are generally well developed within universities but, where none exist, there is a potential JR and the case may be within the scope of legal aid, subject to the merits test (often a problem in student cases). Issues relating to funding, particularly in the case of young people who were previously accommodated by social services, also arise in this context and would be covered by legal aid.
Expert reports in SEN cases
There remains provision under the legal aid scheme for expert reports to be obtained when parents are making appeals to the tribunal on behalf of their children. This is because we, as solicitors, have no expert knowledge about what educational provision is required for a child, and the input from an expert educational psychologist, speech and language therapist, occupational therapist and other relevant professionals is necessary to move the case forward effectively. It may of course be that the expert disagrees with the parents’ wishes.
Legal aid in the child’s name
Under the Legal Help scheme, the parents’ means will be looked at, unless there is good reason not to do so. However, the action in the majority of education JR cases will be in the name of the child. For those parents of moderate means (for example, receiving tax credits) who just fail to qualify for Legal Help, there is the possibility of undertaking initial work for parents on a private basis (normally fixed fee) with the intention of applying for a public funding certificate in the child’s name if the matter is not resolved.
If someone is complaining about an education issue, then s/he should be encouraged to telephone the CLA (see above). The gateway sifting process should enable cases potentially within the scope of legal aid to get through to one of the specialist providers.