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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.