Response to the consultation on the reform of legal aid in England and Wales

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1 Hunters Court, Debden Road, Saffron Walden, Essex CB11 4AA Response to the consultation on the reform of legal aid in England and Wales Independent Parental Special Education Advice (IPSEA) is commenting on the proposals for the reform of legal aid. IPSEA is concerned with how these proposals affect children with Special Educational Needs (SEN) which is the field in which we operate rather than with cases concerning education for other children. Who we are and what we do IPSEA is a registered charity and the largest single provider of support to parents appealing to the Special Educational Needs & Disability Tribunal (SEND) Tribunal. We do this through a network of 170 trained volunteers supported by a very small paid staff team. We provide two levels of support for those appealing local authority (LA) decisions to the SEND Tribunal. Our Tribunal Helpline gives parents reactive one-off next-step advice over the phone at whatever stage in the process they contact us, supporting them to identify the issues in their case, assess evidence and prepare for the hearing. For parents we judge to be unable to manage their appeal without sustained support, we try to offer an individual volunteer caseworker to actively help prepare the case and deal with the complexities of the process. Casework may include representation at mediation or a hearing where it is appropriate and we are able to do so. The demand for this casework service is already overwhelmed. If a parent appears to be eligible for legal help when they contact us, we signpost them to solicitors who hold education legal aid contracts and have the additional expertise to support these specialist SEN cases. We understand that currently 42 solicitors hold education legal aid contracts in England and Wales of which less than 10 specialise in supporting cases involving children with SEN. It is a limited and increasingly contracting pool of firms. Once the solicitor has prepared the paperwork, including evidence, IPSEA will then accept the case back for advocacy The proposals The proposal we are responding to is to remove all legal aid for education cases, including that for appeals to the SEND Tribunal over special educational needs and related appeals to the Upper Tribunal. The exception proposed is that legal aid would still be available for disability discrimination in relation to education. The reasoning put forward by the MoJ for these proposals is, we believe, fundamentally flawed. It could be argued that these proposals go against principles of natural justice. There is no evidence base for a number of assertions made. Providing advice to parents of children with special educational needs Registered Charity No Limited Company No

2 I PSEA r espons e to le g a l a id consult ation p age 2 of 6 Currently legal help covers the preparation of paperwork for appeals against LA decisions to the SEND Tribunal. When needed those offering legal help can also commission further evidence in the form of independent professional reports to provide evidence needed as to what a child s educational needs are and/or the provision they require to meet those needs. This is often necessary as assessments carried out by LAs are inadequate in that they are often out-of-date, do not cover all the child s needs, and fail to be specific, especially in recommending provision. IPSEA does not have the resources to provide this independent evidence. The proposal to remove legal aid from SEND Tribunal cases does not mention the importance of independent expert evidence on the nature of the child s difficulties and the kind and amount of provision which those difficulties call for. Without that independent advice, in many cases parents would have no chance of disputing the decisions of LA and the recommendations of the LA s professionals. The fact that LAs are responsible for both assessing a child s SEN as well as making the provision they need has long been recognised by all parties as an area of concern 1. Further evidence of how very disputable these decisions often are can be seen by the current success rates of parents in such appeals. Full analysis of the impact of these proposals versus the money saved is needed. The reasoning applied to the retention of legal aid in disability discrimination cases applies equally to SEN. In practice most SEN appeals could be argued to involve an element of disability discrimination. If the proposals are implemented then it may well become common practice to consolidate any SEN appeal with a disability discrimination claim for families entitled to legal help. This will increase the number of judicial hours needed to consider and hear such cases at least twofold. It will also increase LA expenditure in defending them. We understand from the MoJ that the current expenditure on legal aid for SEND Tribunal cases equals 600,000. We believe that greater costs to the public purse will result from the proposed cut because of failures to achieve appropriate education for the children of needy families. It is likely that these children will fail educationally and become dependencies of the state and/or criminals. All parents of children with SEN are often under intense pressure due to the issues faced by their child. Families who are, in addition, living on reduced incomes or are in poverty are further vulnerable. It is our experience that they are less able to have the resources to co-ordinate complex paperwork, deal with professionals and navigate through the SEN system. We believe that the cut will result in more cases arriving at the Tribunal in a chaotic state, requiring the Tribunal s intervention by active case management, with potential adjournments and other effects which will impede the work of the Tribunal and drive up costs. 1 See Commission on Special Needs in Education: the second report Sir R Balchin (The Conservative Party 2007); further, In its report on special educational needs published in July 2006, the House of Commons Education and Skills Committee recommended that assessment of need and funding of provision should no longer be carried out by the same body: There is an inbuilt conflict of interest in that it is the duty of the local authority both to assess the needs of the child and to arrange provision to meet those needs, and all within a limited resource. The link must be broken between assessment and funding of provision. (Paragraph 99)

3 I PSEA r espons e to le g a l a id consult ation p age 3 of 6 IPSEA s concerns We were concerned that the proposals fail to identify that there are two distinct groups who are eligible to legal help in relation to education appeals/claims relating to ordinary children and those relating to children with SEN. This lack of clarity could lead to the perception that the Government believes that there is often an element of personal choice motivating challenges to LA decisions by parents of children SEN which in our experience is just not true. Appealing to the Tribunal is not something that families, especially poor families, do lightly considering the additional pressures that they face in caring for their child with SEN. Families currently entitled to legal help are those who are already living on low incomes with very limited capital at their disposal. They are usually living in poverty. They also happen to have a child who has SEN. Having a child with SEN is not a lifestyle choice and neither is struggling with LAs over their education. The group that will be affected by these proposals are doubly vulnerable. Families of disabled children are more likely to be poor as a consequence of their child s need for care and additional expenditure and the carer s inability to take up or maintain employment 2. The MoJ recognise that families entitled to legal aid are some of the most disadvantaged families in Britain. A high proportion includes parents who are themselves disabled. They are often unaware of their legal rights. Without support they would be unable to challenge LA decisions at tribunal appeals. Children with SEN are severely affected if they cannot access an appropriate education. For children with SEN living in poverty the effects will be compounded. o Not being in education, employment or training for six months or more between 16 and 18 is the most powerful predictor of unemployment Fairness and Freedom Cabinet Office o Young people exposed to the most acute combination of risk factors including school under-achievement are between 5 and 20 times more likely to offend than those who are not The Government's Approach to Crime Prevention, March o Inequality in access to education diminishes the chances of leading a flourishing life World Health Organisation s Commission on Social Determinants of Health, There is a very much increased likelihood that pupils with SEN are also poor: pupils with SEN are more than twice as likely to be eligible for free school meals (FSM), DfE (2010) Children with Special Educational Needs 2010: an analysis, Figure See also the link between very low outcomes and multiple disadvantage analysed at p. 11 of DCSF (2010) Breaking the link between special educational needs and low attainment: only 7.5 per cent of FSM children with SEN achieved 5+GCSEs at grades A*-C including English and maths.

4 I PSEA r espons e to le g a l a id consult ation p age 4 of 6 A high percentage of children out of the school system have SEN. It is very expensive to educate children who are out of school. Children with SEN who are living in poverty have a much higher chance of being excluded from school and /or entering the criminal justice system 3. It is essential that the families of this group of children continue to have legal aid in order to support them staying in appropriate education. Excluded children that commit crime 4 and other anti-social behaviour, become disaffected, and are more likely to become offenders as adults. Pritchard and Fox (1998) followed a complete cohort of 227 excluded from school adolescents and found that 63% had a criminal conviction as young adults (16 23 years). Looking after young people in custody is very expensive. A study of excluded adolescents found that A cautious estimate of the total cost to the public purse of these 143 offenders over a six-year period was over 4 million, averaging nearly 30,000 a head. 5 Parents often need further evidence to support their tribunal appeal. The evidence provided by professionals commissioned by LAs is often incomplete and is seen as biased. Please see our case studies below on how crucial this evidence can be. The Lamb inquiry into parental confidence recommended in March 2010 an extension of legal aid for appeals to the SEND tribunal to include advocacy not just preparation of case papers. This proposal was made based on the evidence presented to them from parents and professionals including LAs. Current Government SEN policy has a stated aim to decrease confrontation in the SEN system and restore parental confidence. We are currently awaiting an SEN Green paper that will try to address the concerns of this vulnerable group of families. These proposals do not seem to support this approach. Removing legal aid in this area will not save the Tribunal money. Without help with case preparation, disadvantaged parents are likely to have difficulties negotiating the Tribunal appeal system and applying the law. As a consequence their appeals will require more case management by the Tribunal and cause more adjournments if they arrive at hearings unprepared. 3 Pupils with SEN (both with and without statements) are over 8 times more likely to be permanently excluded than those pupils with no SEN ; children who are eligible for free school meals are around 3 times more likely to receive either a permanent or fixed period exclusion than children who are not eligible for free school meals : DfE (2010) Permanent and Fixed Period Exclusions from Schools and Exclusion Appeals in England, 2008/09, SFR 22/ Webb, R. and Vulliamy, G. (2004) A Multi-Agency Approach to Reducing Disaffection and Exclusions from School, DfES and Home Office, quotes research in London: Gilbertson (1998) reports that in the Metropolitan Police District in 1997 over one third of juvenile offences are committed during school periods by those who have been truanting, excluded from school, or who are unplaced, p Webb and Vulliamy, p. 3.

5 I PSEA r espons e to le g a l a id consult ation p age 5 of 6 Parents are likely to make an additional disability discrimination claim in order to obtain legal help where an SEN appeal alone would be better both in terms of outcome for the child and cost for the Tribunal. Disability discrimination claims are highly confrontational and seek to establish fault as opposed to the inquisitorial nature of SEN appeals. Even where a claim is successful the Tribunal cannot order a LA to put the appropriate SEN provision in place for the child or order placement in a particular school. The MoJ have made a number of wrong assumptions about the extent of alternative support available to parents of children with SEN appealing the SEND tribunal: Parent Partnership give general advice on the SEN legal process but only limited advice on preparing a case for the SEND Tribunal. They cannot obtain evidence for parents. The Advisory Centre for Education (ACE) provides general advice to parents on a full range of education issues including SEN. It does not provide specific advice, carry out casework, give direct support or obtain evidence for parents as they go through the SEND Tribunal process. IPSEA do not currently have the capacity to deal with an increase in demand for support from these most vulnerable families. The demand for our support is already overwhelming. Fewer than 10 firms of solicitors across England and Wales actually carry out work in the field of SEN. These cases require specialist knowledge and are currently not time/ cost effective. We need an incentive for more solicitors holding education legal aid certificates to engage in supporting appeals involving children with SEN. IPSEA urges the MoJ to reconsider its proposals and ask that they look at them in the light of current Government s SEN policy which aims to decrease confrontation within the system and restore parental confidence. Case studies We hope these cases will evidence the need for legal help to continue. S, age 16, had been in a maintained school for moderate learning difficulties (MLD) for most of his secondary school education. He has a diagnosis of Asperger s syndrome. His local authority decided to cease to maintain his statement of special educational needs and wanted S to attend an FE college to study life skills. S and his mother wanted him to stay in school, so that he could take GCSEs and maybe A levels, so she appealed to the Tribunal and contacted IPSEA. IPSEA advised her to contact a solicitor because the reports about S were sketchy and many were out-of-date. An educational psychologist and a speech and language therapist assessed him and provided reports as part of the legal help with case preparation obtained by S s mother. The psychologist concluded that S did not have MLD after all and in fact had academic potential, and that he had been in the wrong school for his entire secondary education. This independent

6 I PSEA r espons e to le g a l a id consult ation p age 6 of 6 view helped convince the special needs tribunal (at which IPSEA provided free representation for his mother) that his statement should be maintained and amended in line with the independent experts recommendations that he should be placed in a non-maintained special school with appropriate support for his difficulties with learning. He is thriving in this situation for the first time in his secondary schooling. A was 13 when his mother contacted IPSEA. His mainstream school had labelled him as dyslexic, and were providing the maximum help for this condition within their ability, but A was unable to learn, and was out of control and in danger of being led into criminal behaviour: the only way he would stay in school was if his mother went in every day to teach him. A s mother appealed against the local authority s view that he should stay at that school and she obtained legal help on IPSEA s advice. An independent speech and language therapist s report concluded that his problems with reading derived not from dyslexia but from a severe speech processing disorder: he could not understand a lot of what was going on in an ordinary classroom because of this, and the dyslexia support was totally inappropriate, a waste of time and money. On receiving this evidence the LA agreed that their school was unsuitable for him, and they yielded the appeal and supported his mother in finding a suitable school. G was aged 9. She was very unhappy indeed in a mainstream school, with very poor self esteem and was a danger to herself through self-harm. An independent educational psychologist report helped persuade her LA to change their mind in an appeal against their decision not to assess her need for a statement of special educational needs. Later, an independent speech and language therapist and an occupational therapist helped convince the Tribunal that G needed to be placed in an appropriate special school which could make provision for her needs. Without their help we cannot imagine how G would have coped with her life in school, let alone progressed educationally Jane McConnell Chief Executive 12 th February 2011 For further information please contact: Jane McConnell Chief Executive, IPSEA (m)

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