Post by Patrick Torsney on Mar 23, 2011 10:10:02 GMT
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THE ELAS REPONSE TO THE PROPOSED REFORMS TO LEGAL AID
The following response to the MOJ's Consultation was prepared by Eleanor Wright in consultation with the ELAS Executive Committee
CONSULTATION ON PROPOSALS FOR THE REFORM OF LEGAL AID IN ENGLAND AND WALES
RESPONSE OF THE EDUCATION LAW ASSOCATION
The Education Law Association was founded to support the advancement of education for the public benefit by providing a source of advice and assistance in all matters relating to education law; promoting and developing expertise in education law for lawyers, advocates, educationalists and advisor workers; and fostering and developing co-operation with lawyers practicing in related fields and in other countries and jurisdictions. It has a wide membership comprising lawyers and advice workers acting for local authorities, schools, colleges, universities and other educational institutions, and for parents, children and young people in education, local authority officers and education professionals including teachers and lecturers and members of voluntary organsiations.
Before dealing with the specific questions raised in the consultation, we would like to register some points which are not covered by specific questions.
Paragraphs 3.35-3.40 deal with legal aid expenditure and trends in that regard. It should of course be taken fully into account that, where legal aid expenditure has risen, both in terms of criminal and civil cases, this has been substantially contributed to by the rise in legislation over the relevant period which has added a large number of criminal offences to the statute books and has also resulted in areas of uncertainty and untested law in civil categories. In education law, for example, there has been a spate of direct and indirect legislation affecting the issues with which our members deal, including a number of new statutes and statutory instruments on education and disability issues, new school and further education structures and funding arrangements, and substantially amended rules and regulations relating to the Special Educational Needs and Disability Tribunal, school admissions and exclusions.
We are very surprised that the criteria on which the proposals are based are not in themselves the subject of a specific consultation question and consider that, without this, the consultation process is seriously flawed. For example:
(A) The fundamental duty to give access to justice is not confined, as is implied in paragraph 4.20, to cases where there are immediate serious direct consequences for the client; nor can cases reasonably be “less important” because more serious consequences for the litigant will only result indirectly or in the longer term. In the education context, it is well known that failure to make proper provision for education at the right phase in a child’s life will almost inevitably result in the child failing to achieve qualifications or, in the case of a child with special educational needs and/or disabilities, failing to achieve independence and self sufficiency. That in turn has extremely serious consequences for the rest of the child’s life in terms of his ability to live independently and function in society, to earn a living and indeed to avoid involvement in criminality. There is ample statistical evidence of the very large incidence of learning disabilities amongst people in prisons and other custodial institutions, and obviously the expense which is caused by this severely outweighs any savings which the current proposals would make in relation to provision for legal help for clients with education related problems.
(B) We note that, by paragraphs 4.59-60 the consultation paper in effect adds further criteria to be taken into account in deciding whether to continue offering legal aid, namely whether the issues at stake are important because they substantially affect the individual’s ability to live an independent and fulfilled life, and whether the opponent is likely to be the state. We consider those criteria to be entirely correct and ones which should be applied in relation to all categories of work. The fact that it is only applied to a few categories is not explained and is not justifiable.
(C) The suggestion that legal aid is not always necessary for appeal proceedings is dealt with, highly misleadingly, in the section on categories of law for which legal aid will be retained. Therefore there is no specific question relating to this proposal.
Finally, in considering these proposals, the Ministry of Justice needs to bear the context very firmly in mind. People who qualify for legal help under the current rules are already seriously disadvantaged by virtue of the fact that they inevitably will be on an extremely low income. Many of our members are dealing with families where that position is not going to change because parents are unable to work because of the difficulties of caring for their disabled children. They are therefore doubly disadvantaged. It is hard enough caring for a disabled child who may need care virtually on a 24 hour a day basis without also having to cope with the problems imposed by extreme poverty. Additionally, there is a well-established statistical correlation between poverty and lack of educational attainment. To suggest that individuals and families in that situation are able to cope with complex legal issues without specialist help is extraordinary.
Turning to the specific questions raised in the questionnaire which are relevant to our members:-
1. Do you agree with the proposals to retain the types of case and proceedings listed in paragraphs 4.37-4.144 of the consultation document within the scope of the Civil and Family Legal Aid Scheme?
We consider that all these areas should and indeed must be retained to ensure that the UK complies with its national and international legal obligations.
However, we profoundly disagree with paragraphs 4.142-144 which properly relate to excluding rather than retaining cases in scope. The suggestion that any appeal to the Court of Appeal or Supreme Court, or a reference from the European Court of Justice, does not merit legal assistance is extraordinary. Of necessity, such appeals are on a point of law and involve an argument that a highly experienced judge has made an error. The suggestion that an unqualified litigant in person is able to identify the relevant points of law and formulate the relevant legal arguments without legal assistance is extraordinary: leave to appeal will not have been given unless there is an important and usually complex point of law involved. In virtually every such case the opponent will be legally represented, frequently at QC level, and there would be appalling inequality of arms. There would be severe injustice in particular in relation to cases where the person requiring legal aid is the respondent to such appeals but could be left in the position that he has no realistic means available to him for defending a decision which was initially in his favour. There is a substantial danger that this would lead to a culture where appeals against successfully legally aided opponents would become almost axiomatic when defeated litigants become aware that they are unlikely to receive any serious opposition. The abolition of such appeals from scope would certainly place the UK in serious breach of the European Convention on Human Rights.
3. Do you agree with the proposals to exclude the types of case and proceedings listed in paragraphs 4.148-4.245 from the scope of the Civil and Family Legal Aid Scheme?
We will confine this response to the proposal specifically relating to education law in paragraphs 4.180-4.187 and will initially comment on the individual paragraphs.
4.180 There are some significant omissions in the list of types of case with which legal help is currently concerned. This is particularly the case in relation to special educational needs (SEN). Parents, children and young people are currently assisted in relation to the entire process of claiming appropriate help in schools, colleges and other further education institutions. Lawyers become involved in assisting children to obtain assistance at pre-statement stages of the SEN system, and in applying for statutory assessment of special educational needs, assisting parents with representations in this regard, advising on proposed statements and related issues. They are further involved in enforcing provision for SEN, including ensuring that local authorities keep to statutory timetables for assessment, and that the provision of support set out in statements is properly delivered. Additionally parents regularly need assistance in relation to children who are out of school, whether because of school phobia, bullying, exclusion or otherwise. This is an issue which particular affects children with special educational needs and/or disabilities, because if they are out of school for any reason it tends to take local authorities even longer to identify alternative school placements for them than is the case with other children. Our members also regularly have to deal with issues concerning provision for education for children out of school for medical reasons, and school transport – the latter is an increasingly busy area since the law was amended in 2006 as there appears to be a large degree of local authority confusion about its duties in this area, particularly to children with SEN and disabilities.
4.181 Education issues go well beyond simply affecting children’s educational and future life choices; they can make the difference between a child being able to live an independent life or or a wholly dependent one. When we deal with severely disabled children, provision of the right support at the right time can have a massive affect on their lives. Three examples are given below:
(1) For children with cerebral palsy and other physical difficulties, it is absolutely critical that they receive the right physiotherapy, occupational therapy, and other assistance including provision of the right equipment, and this is an education issue normally included in children’s Statements of SEN because this is required in school and affects a child’s ability to access education. If they do not receive this whilst they are growing during childhood, the children concerned will inevitably suffer muscle contractures and wastage, and may well suffer scoliosis and similar problems which leave them immobile, wheelchair dependent and possibly even unable to feed themselves. Provision of the right help at the right time may make all the difference between mobility and immobility.
(2) For children with major communication problems, for example resulting from deafness or autism, receiving the specialist help can make all the difference between being able to communicate and being unable to do so – in cases involving serious communication problems there is a relatively small window of opportunity in the child’s life when help with speech will secure meaningful results, and if that window is lost because the child cannot enforce the duty to make proper educational provision, that child may lose the ability to communicate effectively throughout his life.
(3) Children with problems such as autistic spectrum disorders and ADHD may suffer mental health problems including major anxiety and trauma in school leading to a wholesale inability to access education at all. This can lead in effect to societal exclusion for the rest of their lives unless they receive the right help in time.
These are only a few amongst several examples which demonstrate that the issues with which our members deal go well beyond matters simply affecting children’s educational attainment and future life choices.
The list of “typical” cases set out in the second sentence in this paragraph is, as indicated above, far too limited, and is not necessarily typical of normal legal help case loads.
4.182 For the reasons given above, it appears to us that the MoJ has not understood the importance of the issues with which education law is concerned and therefore has not fully taken into consideration the importance of these to the litigants involved.
It is wholly incorrect to suggest that education cases do not involve threats to life and safety. Cases involving bullying pose direct threats to the safety of the victims. Our members additionally regularly deal with cases where, whether because of special educational needs, the effects of bullying or otherwise, children self-harm, become clinically depressed, develop obsessive compulsive disorders, and indeed become suicidal. In such cases bullying is a child protection issue. Again, there are all too many documented cases of school children attempting and, regrettably, succeeding in committing suicide because of pressures at school. Children who are not receiving adequate provision for education may suffer serious health issues ranging from insomnia, eating disorders, to severe phobias and mental illness. Failure to provide help in school may result, as indicated above, in wholly unnecessary exacerbation of physical problems caused by conditions such as cerebral palsy and muscular dystrophy Further, a number of educational difficulties result in children becoming violent and oppositional if they are not properly dealt with, thereby putting themselves, their families and their peers in physical danger. Our members regularly deal with cases where, for example, children have no sense of danger and will run out of school and across roads, and climb onto roofs or out of windows.
There are additionally issues concerning liberty arising in the education law context. At one end of the scale this relates to the use by some schools of compulsory detention or segregation in “time out” rooms and the like. At the other end of the scale, children who are not receiving proper educational provision are highly likely to become involved in crime which will pose a danger to society and cause them to have criminal records and potentially to lose their liberty.
We are particularly astonished that it is suggested that legal aid may not be justified because some cases may arise from personal choices, such as the conduct of children at school. Inasmuch as this relates to school exclusion cases, this is based on the false premise that every child who is excluded is guilty of the accusation made against them and that the conduct in question merited exclusion. Statistics concerning exclusion cases demonstrate that that is not correct. It cannot seriously be contended that all teachers and headteachers are infallible and that they never make an error in deciding to exclude, whether in terms of their assessment of the evidence or in terms of their assessment of whether the offence in question merits exclusion. Our members have repeated experience of, for example, cases where there is little or no evidence that the child in question is responsible for the conduct complained of, where there has been little or no proper investigation by the headteacher as required by law, or where children have been excluded for offences which other schools would regard as trivial. Indeed, we have heard headteacher members of exclusion panels making precisely that comment. By way of example, we have reports of the following:
(a) a series of cases in which one particular school sought to exclude children, particularly those with SEN, for offences which would be regarded as part of normal daily life in other schools, to the extent that the local authority was regularly supporting parents appealing against the exclusions in question and regarded the headteacher involved as posing severe problems. (b) In another case, the reason given by a headteacher for excluding a pupil was that he had been involved in a major incident in which he had thrown a full two litre bottle of liquid at the window of an underground train, causing a major terrorist alert and the disruption of the entire tube line. On investigation, not only did London Transport know nothing whatsoever of the incident in question, but they were able to produce CCTV film showing that all that had happened was that the child had flipped a pebble onto the line when no underground train was near.
(c) In another case, an academy had in place an extremely vaguely phrased discipline code and excluded a child for breach of that code, again for minor offences such as handing in homework late. It took a lawyer to draw to the academy’s attention that its own funding agreement forbade this, and few if any unassisted parents would have been aware of the need to investigate the funding agreement.
(d) A case in which it was alleged that a group of children had been smoking marijuana outside the school. CCTV evidence showed only one of the group smoking what he said was a cigarette. The only evidence put forward by the school in support of their case was that the headteacher thought it “likely” that the substance involved was marijuana.
(e) Numerous cases where there has been a clear failure to access local authority help available for SEN and/or behavioural difficulties.
It is particular a matter of concern that, as is fully demonstrated by statistical evidence, a disproportionate number of children excluded have special educational needs and/or disabilities. Again, our members have repeated experience of children who are excluded in essence for conduct which results from their disability, notably problems such as autism. In all these cases it absolutely cannot be suggested that the cases in question arise from personal choices and the Ministry of Justice is not entitled to assume that that is the position.
Any exclusion has a massive effect on a child’s education: not only does it result in a major interruption to that education, frequently at very significant times in terms of GCSE or end of key stage yests (SATs) preparation, but the fact that it is on a child’s record will have long term effects in terms of, for example, entry to college or further training. Some excluded children are in temporary educational provision for far too long, for example pupil referral units where the peer group is constantly changing and will generally include children with major behavioural problems. This can lead to ongoing societal exclusion in adult life, problems in securing and keeping jobs, and involvement in criminality.
Additionally, our members deal with a substantial number of cases involving unlawful exclusions: it happens with surprising regularity that schools fail to log exclusions as such and therefore deny rights of appeal, or impose part time timetables which amount to exclusions, or simply regularly ask parents to come into school to collect children when they can no longer cope. The latter category of case arises in particular in relation to children with SEN and/or disabilities, which means that those difficulties are not being remediated and the child is being further prejudiced by being out of education regularly.
Disciplinary cases concerning students and young people in colleges, universities and other further education institutions are subject to the same issues, ie that it cannot be assumed that they were guilty or that the college authorities must always have been correct, nor can it be assumed that these issues do not arise from special educational needs.
It is not clear from the consultation document whether the MOJ envisages any other cases arising from personal choices. Clearly that is not the case in relation to special educational needs and disability.
We question in any event whether it is lawful to exclude cases solely because they result from individual choices. For example, school admission cases may be said to come into this category, but they have the potential to make a major difference to the course of a child’s life. In most cases the involvement of a lawyer under legal help can be limited and cost-effective: parents receive basic advice about the relevant law and procedure and assistance in preparing representations which are fully informed by the lawyer’s knowledge of the issues involved. Unrepresented parents take up a great deal of appeal panels’ time in arguing irrelevant points such as whether their child’s academic record should be considered in relation to comprehensive schools. The involvement of lawyers in some cases has been crucial where unlawful admission decisions have been made – for example, a case where an academy admitted one twin and failed to admit her sibling with the same date of birth at the same address, the difference between the two being that the sibling had learning difficulties; where a church school relied solely on references from a vicar who demonstrably was giving different references as to family church attendance for children from the same family; and where a comprehensive school unlawfully imposed its own specialist form of testing as a condition of admission.
It is obviously correct that damages claims are largely related to issues concerning monetary compensation, and our members recognise the complexities involved in such cases. We are however concerned that the withdrawal of legal funding for, in particular, negligence claims in effect sends a signal to schools and local authorities that negligence will realistically virtually never result in any sanction. Further, some negligence claims may also have the effect of improving practice, particularly in relation to, for example, the prevention of bullying.
Actions for breach of contract in provision of education services may not be confined to damages claims but litigants may legitimately request remedies such as mandatory orders to remedy the breach in question, and these again may affect fundamental issues.
4.183 Whilst a very large proportion of education cases are brought by parents on behalf of children, the consultation document ignores cases involving children who do not have parents to represent them because they are in care and whose statutory parent, the local authority, is highly unlikely to challenge its own decisions; likewise foster parents are rarely willing to bring challenges on behalf of the children they represent and indeed may come under pressure not to do so. In these cases action must be taken by the children themselves who are clearly vulnerable. Likewise, there is a substantial portion of cases brought by young people and indeed adults in relation to the provision of further education. Such individuals, particularly those with learning difficulties and disabilities, are extremely vulnerable and it would be quite wrong to suggest that they are always able to present their own cases. Young people over 16 years old can bring their own appeals against exclusion and also admission and certainly require assistance which they are unlikely to be able to access elsewhere..
Turning to those cases where parents are involved, we consider that the assumption that they are unlikely to be particularly vulnerable is not justifiable and is clearly not based on the facts. Our members acting for parents are aware that, particularly in relation to parents whose income is low enough for them to qualify for legal help, many are extremely vulnerable because of their personal circumstances: they may well be educationally disadvantaged themselves, have learning difficulties, or be simply overwhelmed by the manifold problems associated with poverty, including, frequently, poor housing conditions, illness, lack of transport, lack of basic facilities at home, inadequate diet, lack of partners and other family support, and having to deal with a number of children and/or other dependents such as elderly parents. Such people are simply not in a position to find out their legal rights, let alone to enforce them without help. Parents of children with disabilities and special educational needs are particularly vulnerable and we will deal with these further in relation to the following paragraph.
4.184 As indicated above, most of this paragraph assumes that SEN work is mainly confined to dealing with appeals to the Special Educational Needs and Disability Tribunal (SEND). That is incorrect as advice in this field goes far beyond that.
Parents of children with special educational needs and/or disabilities are, in our members’ experience, extremely vulnerable. As is in part recognised in the consultation document, a large number of parents in this situation are themselves disabled – statistics demonstrate that 50% or more of disabled children live with disabled parents, as compared with 2% of non-disabled children. It appears likely that, if anything, recorded statistics underestimate the problem in view of the incidence of failure in the past to diagnose learning difficulties, particularly those such as autism and dyslexia. It cannot reasonably be suggested that such parents are not vulnerable or that they are easily able to deal with the complexities of the SEN system and SEND appeals.
Further, parents of children with learning difficulties are, in our members’ experience, regularly dealing with appalling home circumstances. It is not uncommon for families to have a number of children with similar difficulties: one member has recently deal with a case involving triplets with fairly severe autism. Families may be dealing with children with life threatening illnesses which means that an adult has to be with them 24 hours a day, or has to check them or sleep with them throughout the night so as to deal with problems such as seizures. Some children have conditions which may result ininterrupted or poor sleep patterns, which means that an adult needs to be awake with them; or which may result in their becoming violent, destructive and uncontrollable for several hours at a time. It is unfortunately the case that in many of these situations the families concerned are single parent families. Parents may have to tread an impossible tightrope between looking after the child with learning difficulties and keeping him safe, and also giving adequate attention to other children and, possibly, keeping them safe from their violent sibling. Such parents are permanently exhausted, frequently suffer major health problems themselves, and cannot be expected to deal with Tribunals and paperwork without assistance.
Even without these difficulties, in our members’ experience, parents find it extremely difficult dealing with Tribunal cases on their own. This is stressful for any litigant, but the fact that they are representing their own children very severely exacerbates this: they are haunted by the fear that they are letting their children down if they do not do everything possible. Some parents describe this as feeling that they are minus one layer of skin. Parents who are very heavily emotionally involved in their children’s cases are virtually never able to present those cases properly.
The suggestion that parents do not need legal help because the Tribunal is designed to be accessible to individuals without legal assistance demonstrates a lack of knowledge of what is involved in SEND cases. Education law is becoming increasingly complex, and involves issues with which even lawyers have difficulties in coming to grips, as witness the number of cases which go on appeal. The interpretation of section 9 and schedule 27 Education Act 1996 has resulted in court and Upper Tribunal findings which are very difficult to reconcile and which in a number of cases appear to be directly contradictory. If it is the position that experienced tribunal judges make major errors on cases of this nature, it cannot be suggested unqualified parents are qualified to argue these points. Similarly, issues concerning the meaning of a waking day curriculum, when and in what circumstances this may be required, and other circumstances justifying provision in residential schools are highly complex and difficult for parents to present. It would be inherently wrong to say that legal matters should be left solely to the tribunal in circumstances where they have only heard a one-sided legal argument from lawyers represented by local authorities.
We find it astonishing that the consultation document suggests that “individuals should only need to present the facts to the Tribunal” as if that is a simple matter. SEND is not in reality a true inquisitorial system as suggested in the consultation document, as it has no power to investigate cases beyond what is put before it; nor realistically can it order parents in particular to produce evidence which is beyond their means or capability to produce. This is not the inquisitorial system as operated in other countries. It should be said in this context that we do not in any event accept the premises that there is less need for legal representation in an inquisitorial system: manifestly that is simply not the case in countries routinely using such a system.
The reality is that no parent can expect to succeed in a SEND case unless he has expert evidence. Where the Tribunal agrees that provision in a statement is inadequate for a child, they cannot decide on what the child actually needs because they have not assessed the child, observed him in school, or entered into in depth discussions with his teachers and other professionals dealing with him. They cannot order improved provision unless there is evidence before them as to precisely what the child’s difficulties are and what he needs to meet those difficulties. They will not be prepared to take simple assertions in this connection from parents, and indeed nor should they since parents will rarely be specialists in all the areas concerned. Equally, they cannot and should not rely only on local authority evidence, since such evidence is, in general, what has led to the statement being challenged in the first place. It is regrettably the case that local authorities rarely, if ever, instruct their experts to advise them on detailed and specific SEN provision as required by statute, and consciously or otherwise local authority experts tend to advise in accordance with LA resources rather than in accordance with the child’s needs. Where evidence comes from other sources, like Primary Care Trusts, in our members’ experience it is the tendency of such Trusts also to advise on vague and non-specific provision, and/or the model of support which their individual organisations routinely provide as opposed to the support which the child actually needs. Parents who qualify for legal aid are not in a position to pay for independent expert advice. Therefore they simply cannot “present the facts to the Tribunal” without legal aid assistance.
Parents are not necessarily in a position to identify the evidence that is required or to interpret the reports. For example, many cases concerning schools turn heavily on costs issues, but parents tend to have little or no knowledge of what costs are to be taken into account, how to access the relevant information, or how to interpret what are frequently very complex calculations put forward by local authorities.
Tribunals also require parents to co-operate with local authorities in the production of working documents setting out proposed amendments to statements under appeal, and very few parents are able to deal with this somewhat complex and intricate work without assistance.
It cannot be suggested that SEND’s free DVD or written guidance are of adequate assistance to parents in dealing with Tribunal procedure. The guidance is outline in nature and does not advise, for example, on the criteria required for specific types of application, or the process involved in case management hearings. There have been particular difficulties because, after the current SEND regulations came into force in 2008, there has been a constant process of modification of Tribunal procedures which are not fully explained in SEND documentation. Further, SEND now has far-reaching powers, for example to require children to be produced for examination, which may have quite serious significance and on which legal assistance is required. Where tribunals are dealing with complex situations, such as joint appeals concerning siblings with similar conditions, or children with very complex needs, SEND often makes additional directions or holds case management meetings which parents find very daunting to deal with on their own. It is also the position that SEND judges in our members’ experience have very varied approaches to the interpretation of the rules, so that it cannot be said that these are easy for individual litigants in person to deal with.
As indicated above, whilst we accept that it is rare for a SEND appeal to be brought solely in the name of a child, that is not wholly unknown and should be taken into account.
It is the experience of our members, both those acting for parents and those acting for schools and local authorities, that cases involving unrepresented parents almost invariably involve very much more work than those where parents are represented. Unrepresented parents may have difficulty in identifying all the issues concerned, may file large volumes of evidence not all of which is relevant, and may spend disproportionate amounts of time on issues which they perceive to be important but which may not be relevant to the matters at issue. Having lawyers involved invariably helps in confining cases to the issues which are directly relevant and to keeping evidence, case statements and submissions to manageable levels. It is frequently the case that a great deal of Tribunal time is saved when lawyers are able to advise clients against pursuing hopeless points and in favour of settling cases early. In general Tribunal appeals stand a better chance of being settled where parents are represented. Legal help which is currently available for SEND is already significantly limited as it does not cover representation at hearings. There is a major issue as to inequality of arms between unrepresented parents and local authorities who are increasingly legally represented, or who may be represented by case officers with long experience of SEND hearings who are clearly much more comfortable with them.
The MoJ will be aware that the statistics demonstrate that SEND appeals result in a high success rate for parents leading, as a minimum, to proper assessments of children’s learning difficulties and substantially improved provision in their statements. Therefore, given that the proposals in this regard will inevitably mean that the most vulnerable families will have no effective access to SEND, clearly this will mean that failures to make proper provision will go unremedied leading to potentially massive prejudice for the children affected. The proposals will have the unfortunate result that the reality is that SEND will become available in practical terms only to those parents able to afford it, leading to the paradoxical result that good state-funded SEN provision and special schools will become the province of the children of economically advantaged parents.
No consideration has been given in this section to further issues which arise for children with SEN, such as enforcing the statementing timetable and the educational provision set out in statements of special educational needs. Such issues can be resolved quite quickly with the intervention of lawyers, whether on the basis that they simply point out the relevant statutory duties to local authorities or threaten enforcement action through the courts. Few if any parents are aware of their legal rights. .Our members regularly deal with situations where children have been without proper and appropriate SEN provision for months and years because their parents have not known how to enforce their children’s statutory entitlement.
There are also major SEN issues relating to young people beyond statutory school age which are wholly ignored in the consultation document. Provision for young people with learning difficulties and disabilities in colleges is a complex area of the law, particularly following the institution of the Young People’s Learning Agency, and young people needing such help do not necessarily have the support of their parents. These are not procedures which young people with learning difficulties can conceivably deal with on their own and they need to be able to access legal assistance.
Further, it is increasingly the position that cases involving children with SEN and/or disabilities also involve very complex care issues, and the two cannot necessarily be easily separated. It is regrettably the case that local authorities do not always comply with their duties under section 10 Children Act 2004 to provide holistic care and education services for children in this situation. The proposals recognise the need to keep community care cases within scope, but ignore the fact that many community care issues concerning children and young people are inextricably tied up with education issues. It is frequently the case that, for example, children with major disabilities who would otherwise require complex and expensive care packages at home, would be best provided for in residential schools, and the involvement of educational lawyers is required in such cases if this is contested. Further, suitable educational provision can have the result of cutting down social services costs and indeed keeping children out of the care system in some particularly serious cases.
Upper tribunal appeals
We are particularly concerned at proposals that funding should also be withdrawn for appeals to the Upper Tribunal. These can only be brought on matters of law, and very few parents, particularly those eligible for legal aid, are able to identify such issues let alone argue them either in appeal documents or before the tribunal. In our experience all such appeals are complex. Further, local authorities will always be represented by experienced counsel in the Upper Tribunal and unrepresented parents will inevitably be at a serious disadvantage. This would be particularly regrettable in cases where parents are simply defending an appeal brought by unsuccessful opponents. Withdrawal of funding for this purpose would certainly represent the denial of the Convention right to a fair hearing.
It is also worth bearing in mind that the involvement of lawyers actually saves costs for the Upper Tribunal and local authorities in terms of efficient preparation of the arguments and paperwork, and of course in dissuading parents from pursuing hopeless appeals.
The consultation fails to consider the ability of parents to deal on their own with other types of education cases. Legal aid does not in any event pay for representation before independent appeal panels for exclusions, admissions and school transport, but legal help can be used economically and effectively to help parents prepare for such appeals and indeed to dissuade them from pursuing unmeritorious appeals. Similar issues as those referred to above in relation to parental vulnerability arise in particular in exclusion appeals. With the advent of more academies and free schools, the legal issues involved in such cases are becoming increasingly complex, and it is the case that such schools tend to be more restrictive in terms of admissions and more willing to exclude than others. In exclusion cases in particular parents who have had no help in preparing their cases are at a severe disadvantage because they are opposed by headteachers who are on occasion legally represented, may be backed up by their staff and a governor, and who are in any event much more familiar with such hearings than parents.
School transport cases can be vital for parents, particularly those with disabled children who may well not go to the same school as their siblings. Our members regularly deal with cases where children who are clearly entitled to transport have been denied it because local authority officials do not understand the law on this. The relevant statutory provisions and case law are not easy to understand and parents cannot be expected to frame the relevant legal arguments without help.
4.185 The alternative sources of help referred to in this paragraph are not realistically available. Our understanding is that neither the Advisory Centre for Education nor IPSEA were consulted as to their ability to assist. ACE in practice only provides fairly basic telephone advice to parents and is not able to help in drafting representations and appeals, commissioning reports and the like. IPSEA likewise is not able to assist with commissioning reports and its resources are already extremely full stretched so that it is unable to help more parents than it does already. Other charities in the sector likewise are fully stretched and have not been consulted. If anything, their ability to assist is highly likely to be reduced by the effects of funding costs for local authorities and other bodies which currently occasionally provide such assistance. The proposals will if anything reduce charities’ ability to help, because they would not be able to refer cases involving complex legal issues to solicitors, and in particular they would tend to lose the connections with lawyers which they now have and which are helpful in terms of giving their volunteers training and experience and in keeping them up to date with legal developments. The ability of parent partnership workers to help is also extremely limited, and since a number of such workers are employed by local authorities their ability to give impartial advice to parents is compromised. Their training in the relevant law and procedure is limited, and in some cases their remit is to assist the LA in reducing cases coming to tribunal with the result that parents may be inappropriately advised to settle prematurely or where that may be in the interests of their children. In our experience mediation procedures available through SEND and otherwise are rarely useful. The SEN statementing process takes 26 weeks or more and involves numerous opportunities for the parties to negotiate; therefore on the face of it is unlikely that yet further negotiation will make a substantial difference. Regrettably our members have seen cases where settlements reached after mediation are actively unlawful, for example because they allow amendment of SEN provision outside the statutory process. As it is suggested that legal aid is not justified because these alternatives exist, the fact that the alternatives do not in reality exist would seem to suggest that legal aid is required.
Comparison with Community Care (paragraphs 4.59-60)
The consultation document rightly recognises the desirability of funding cases where the issues at stake can substantially affect the individual’s ability to live an independent and fulfilled life. We consider that education cases classically satisfy these criteria, arguably more so than community care cases, because the outcome will affect the individual in question for several decades. We would refer to the comments made above in this connection. Community care funding is also justified on the basis that many of those involved are very vulnerable people who may not be able to present their own case without legal assistance and, for the reasons set out above, that applies equally to education cases.
Paragraph 4.59 also refers to the fact that community care cases are normally against the state and are therefore issues which the class of individuals concerned are unlikely to be able to resolve themselves. Again, this is absolutely comparable to education cases. The majority of cases involve local authorities and there are a substantial number of other cases involving bodies such as the Department for Education, the Young People’s Learning Agency, and the Office of the Independent Adjudicator. Others involve large institutions which are wholly or partly state funded such as schools, universities and colleges. Such bodies have available to them at all times experienced and expert legal advice and have considerably greater resources in order to defend claims. There are additionally serious issues arising as to failures to comply with statutory duties and even abuse of power.
4. Do you agree with the Government’s proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations (including those under the European Convention on Human Rights) or where there is a significant wider public interest in funding legal representation for inquest cases?
We agree that such a scheme is required, but are seriously concerned about the scheme suggested. The current exceptional funding scheme does not operate satisfactorily, as a direct result of which very few education cases are funded under this scheme. The scheme requires a very detailed application to the Legal Services Commission setting out how the case satisfies current criteria. This by itself requires major legal input and takes some time. In our experience there then follows a long period during which the LSC raises various further very detailed queries which go well beyond what would be required for certificated funding even for extremely complex court actions: the problems are exacerbated because officials dealing with such cases have little experience of education law and we have to spend some considerable time explaining fairly basic points and dealing with major misunderstandings. The application then has to be forwarded to the Secretary of State, who again takes some time to consider it before any decision is given. The process means decisions are not usually given before the hearing for which funding has been requested, with the result that either an application for adjournment has to be made, which may be severely prejudicial to the interests of the child in question, or the funded individual or their lawyer has to take the risk that funding may not be granted and that they may be severely out of pocket as a result.
The consultation document gives no details of the proposed procedure or the arrangements which it is proposed to put in placed to deal with what will inevitably be a massive increase in applications. We appreciate that there will no longer need to be a two stage procedure, but we do not believe that that will remedy the problem.
The proposals contain nothing in relation to any plans for offering funding for legal assistance in preparing such applications, and certainly in order to meet the criteria envisaged, legal assistance would be absolutely essential. Unless the work involved is fully funded, the reality is that extremely vulnerable individuals who are desperately in need of legal help, including severely disabled adults and children in care, will never be able to submit an application for exceptional funding. That would be grossly unjust. However, if it is proposed that funding to cover the application process will be offered, full details need to be supplied. We strongly suspect that the reality is that the costs involved in funding such work, plus the extra staffing required to process applications, will heavily outweigh the savings to be made, particularly in relation to education cases where savings are minimal in any event.
We are also very concerned that the proposal made is extremely vague and the consultation document does not make clear what type of case it considers would be funded. There are obviously likely to be substantial differences of opinion as to what level of legal aid is required in order to meet domestic and international legal obligations, and there is a massive potential for satellite litigation on this. It would assist if it were made clear that, for example, litigants with defined learning difficulties, or particular types of complex case, would automatically receive such funding. We would have very major concerns if it is envisaged that there would be any narrowing of the current criteria, which if anything clearly need to be relaxed.
5. Do you agree with the government’s proposal to amend the merits criteria for civil legal aid so that funding can be refused in any individual civil case which is suitable for an alternative source of funding, such as a Conditional Fee Arrangement?
This proposal fails to recognise the reality that arrangements of this sort are subject to commercial pressures and that this would inevitably result in only the easiest cases being funded. Further, individuals who do not qualify for public funding are not normally able to afford insurance premiums to cover their own potential liability for costs. Insurance companies are not good at assessing risk in education cases and therefore tend to avoid them or impose premiums at an unsustainable level.
6. We would welcome views or evidence on the potential impact of the proposed reforms on the scope of legal aid or litigants in person and the conduct of proceedings
We consider that, in the education field, it is inevitable that this will lead to delays, poorer outcomes for litigants, implications for the judiciary and costs for the court service. It would also lead to significant costs for other publicly funded bodies such as schools and local authorities. It is the experience of our local authority members that, when they are dealing with unrepresented opponents, the work involved for them is substantially greater than it would be at other times, and there are notably fewer cases settled.
We consider that the research referred to in paragraph 4.268 is not relevant to this, in part because of the small size of the sample. Further, it covers cases where the litigants in person in reality had little to contribute to court proceedings, for example because they have simply been served or joined as interested parties, and therefore the inclusion of such individuals in the sample renders it even more unreliable.
We find it extraordinary that the required research has not been carried out before this consultation has been issued, and we are strongly of the view that no decisions should be made until such research has been carried out. Our members’ experience clearly demonstrates that there would be a very substantial cost both to the court and Tribunal service and to other parties if there were a substantially increased number of litigants in person. Clearly it would be highly undesirable, and indeed legally unsustainable, if changes are made before the results of such research are known.
7. Do you agree that the community legal advice help line should be established as the single gateway to access civil legal aid advice?
We accept that the CLA helpline works well as an efficient means of securing legal aid advice in education law. However, we do not believe that this should be the single gateway, and in any event it would be essential for the current system to be amended.
The reason for this is that there remain a number of cases in which face to face advice is essential, notably those involving the elderly, people with learning and mental health difficulties, and people with limited English. Additionally we regularly deal with very vulnerable people, including young people who are not in the care of their parents, who in practice have limited access to telephones: they tend to have pay as you go mobile telephones which regularly run out of credit. There needs to be an efficient arrangement for face to face advice to be easily available where it is required.
The current system in education works on the basis that callers to the CLA help line are signposted to one of two providers. Under an expanded system, it would be essential that clients should be able to specify the advisor to whom they wish to be referred. It is the nature of education cases that there is a substantial amount of repeat work, particularly as children with special educational needs progress through the education system, and it obviously makes sense in such cases for the same advisor to deal with the case throughout. In some areas of law it is essential that clients should be able to access local solicitors, particularly in cases such as child care cases where there are likely to be hearings in local courts.
8. Do you agree that specialist advice should be offered through the community legal advice help line in all categories of law and that, in some categories, the majority of civil legal help clients and cases can be dealt with through this channel?
We are not able to answer this in relation to all categories of law. The firms currently providing CLA education advice are members of our organisation and it is their experience that the majority of civil legal help cases can be dealt with through this channel, but there remains a small minority that cannot and which have to be referred for face to face help.
9. What factors should be taken into account when devising the criteria for determining when face to face advice would be required?
This should be primarily a matter of client choice. Issues such as age, learning difficulties, mental and physical health problems, language difficulties, and finances should be taken into account.
10.Which organisations should work strategically with community legal advice and what form should this joint working take?
We consider that the CLA should primarily be working with solicitors’ firms in this connection. For the reasons given above, our understanding is that the voluntary sector is unable to assist further in education. That may change if substantial and secure funding is made available to some of the larger advice help lines such as IPSEA and SOS-SEN but further proposals on this would be required.
11.Do you agree that the Legal Services Commission should offer access to paid advice services for ineligible clients through the community legal advice help line?
However, we do not accept the current proposals in this regard. It is not appropriate, for example, for the CLA to impose maximum charges on those offering paid services in conjunction with them, and proper quality control procedures (such as peer review) need to be in place. Referral fees would be inappropriate in education cases.
12.Do you agree with the proposal that applicants for legal aid who are in receipt of passporting benefits should be subject to the same capital eligibility rules as other applicants?
No. For the reasons given below, there are serious issues in relation to capital in the shape of people’s homes. So far as other capital is concerned, very few people who qualify for legal help are able to build up any savings and where they do it tends to be for particular reasons, for example for emergencies or to buy essential equipment for the home. For the relatively few cases which would be affected by this, the costs saved would be outweighed by costs incurred in dealing with the bureaucracy involved.
13.Do you agree with the proposal that clients with £1000 or more disposal capital should be asked to pay a £100 contribution?
However, this should only apply where capital is genuinely disposable, i.e. in available cash.
14.Do you agree with the proposals to abolish the equity and pension and capital disregards for cases other than contested property cases?
This is entirely unrealistic in relation to people on such a low income that they qualify for legal aid. They cannot be expected to be able to raise a loan on the value of their property because they are not in a position to repay it from income, and it would be highly undesirable to force people into taking loans with grossly unfavourable interest rates. Likewise requiring individuals in this situation to sell their homes is obviously not practicable.
The proposals made would in effect penalise all potential litigants in the south-east of England and further who own their own home who have lived there for more than a few years, due to the rise in house prices which has taken place. The estimate of property values wholly fails to take into account the large discrepancy in property values between different areas of the country.
15.Do you agree with the proposals to retain the mortgage disregard, to remove the £100,000 limit, and to have a gross capital limit of £200,000 in cases other than contested property cases?
See the reasons given above. The reality is that, in the south-east at least, very few properties are worth less than £200,000, especially those occupied by families. This proposal would effectively mean that the vast majority living in that area and/or owning their homes would ever qualify for legal aid, and would therefore be highly discriminatory.
16.Do you agree with the proposal to introduce a discretionary waiver scheme for property capital limits in certain circumstances?
Whilst, if capital eligibility was to be changed, a waiver arrangement would be necessary, we do not consider the proposals made to be realistic. The proposals are unclear as to which cases would result in a requirement for immediate repayment and which would be suitable for a statutory charge.
The suggestion that clients must repay legal aid costs at the end of the case by selling their property or obtaining a competitive loan is unrealistic in relation to individuals who qualify financially for legal aid. For the reasons given above they would not be able to obtain a loan. Where they require their property in order to house their family, the reality obviously is that they would either have to go into rented accommodation, probably indefinitely, or have to buy another property resulting in the incurring of substantial expenses in the form of estate agents’ and legal fees, stamp duty and the like. Many of our members’ clients live in houses with special adaptations for themselves or their disabled children, and would be placed in major difficulty if they had to move. There would therefore be massive disruption with little guarantee that this would in fact release funds to enable costs to be repaid. We are really worried that parents who have to make a choice between appealing against a wholly unsatisfactory statement for one disabled child, and keeping a roof over the heads of their entire family, will feel that in reality they have no choice at all.
The proposed statutory charge may ameliorate some of this provided that there is flexibility with regard to redemption of the charge. However, the proposed interest massively exceeds current interest rates and we would suggest that it should be limited to bank rate.
Paragraph 5.36 illustrates the major problems involved in this proposal. It appears that clients would have to provide very substantial proof indeed in order to demonstrate that they meet the requirements set out with the exception of, possibly, the requirement as to urgency, and we question whether this is proportionate to the benefit likely to be obtained. Further, the proposals do not set out what would be viewed as adequate exceptional reasons to allow this to be used where the limitation period is about to expire: much more information on this is required. How, for example, would it relate to cases where there is a very short deadline in any event, such as Upper Tribunal appeals?
The difficulty with this element of the proposal is that, given that the client would have to act quick