A briefing from the Special Educational Consortium
About SEC
The Special Educational Consortium (SEC) is convened under the auspices of the
Council for Disabled Children to protect and promote the interests of disabled children and children with special educational needs (SEN) in education. SEC is made up of 24 voluntary and professional organisations and provides a forum for discussion and to promote debate on special educational needs and disability issues. SEC defines its policies by identifying areas of consensus that exist among the wide range of groups represented within it.
Background to debate
Parents whose children have special educational needs can appeal to the First-tier and
Upper-tier (SEND) Tribunal against decisions made by local authorities in England about the additional support their child gets (previously known as SENDist). These will be most often be cases where a local authority is refusing to assess a child for a statement of SEN, about the nature of support provided by a statement of SEN, and about what school a child should go to.
Legal Aid
The legal aid scheme currently provides free legal support to the poorest parents appealing to the Tribunal. Parents can receive legal advice in preparing a case and also legal representation at the Upper-tier Tribunal (which is the equivalent of the High
Supported by: Advisory Centre for Education  Afasic  Alliance for Inclusive Education  Centre 404  Contact a Family  Centre for Studies on Inclusive
Education  ICAN  IPSEA  Mencap  National Autistic Society  NASEN  National Children’s Bureau  National Deaf Children’s Society  National Union of
Teachers  Royal National Institute for Blind People  Scope  Sense  The Adolescent & Children’s Trust  The Children's Society  TreeHouse

Court). Legal aid also allows parents to purchase the independent reports needed to support their evidence to the Tribunal. The eligibility criteria for legal aid is both means tested and based on a merits test that considers the chances of a claim succeeding and the resources at stake. A total of £1.7 million was spent in the 2009/10 financial year on legal aid for education cases 1 .
The figures from the Tribunal 2 shows that SEN appeals are not brought by parents spuriously. The validity of the appeals is demonstrated by the fact that most parents win their appeals (82%) once they reach the Tribunal itself and in 30% of registered appeals the local authority concedes before the case reaches Tribunal stage.
Government proposal and SEC position
The Government proposes to remove all legal aid where it relates to matters of special educational needs. It is proposing to do this as part of its plan to remove legal aid for all education matters. The removal of legal aid would effect any SEN appeal to the Tribunal although discrimination claims would still be covered . However, SEN appeals remain the only way for parents to actually get the support their child needs.
The Government seeks to justify this plan on three points:
1. They believe that the education of children cannot be accorded the same level of priority as other more important issues;
2. They do not consider the parents and carers bringing these appeals to be particularly vulnerable;
3. The Government believes there are sufficient alternative sources of support to justify the removal of legal aid in this area.
SEC is asking the Government to reconsider this proposal . We believe that access to a suitable and challenging education is a right for all children and that parents need to be able to enforce legal obligations where they are let down by the system. When parents do not have the financial resources to bring an appeal on their own, they should be supported to do so in the interests of justice. We do not believe that these proposals fit with the Coalition Government’s policy of protecting the most vulnerable from cuts in public spending and their clear commitments to supporting the families of disabled children to get the best education for their child.
SEC concerns with the Government ’s justifications
1 http://www.tes.co.uk/article.aspx?storycode=6064227
2 www.sendist.gov.uk/documents/publications/annualreports/annualreport_08_2/009.pdf

SEC believes the Government’s justifications for abolishing legal aid for SEN appeals need to be examined in more detail.
1) The Government believes that legal help in education matters cannot be accorded the same level of importance as issues such as immediate threats to liberty or housing .
SEC believes that access to a suitable and challenging education is a right for all children. A child only grows up once. If they miss out on that education they experience a permanent detriment that will be with them for their entire life. Disabled children and young people already face many barriers in society and a failure to provide them with a suitable education puts them at an even greater disadvantage. The Coalition
Government has taken some very welcome steps to support families with disabled children - including the recent allocation to local authorities of £800 million for short breaks over the next four years. In the light of these previous commitments, we are hopeful that the Government may decide to re-visit its current position on the relative importance of supporting this group of parents through legal aid.
2) The Government does not consider the parents and carers bringing these cases to be particularly vulnerable
The consultation document itself recognises that disabled children are more likely to live with one or more parents with a disability. However, this fact is not reflected in the
Government’s subsequent statement that the parents bringing these appeals are in general not likely to be particularly vulnerable. As well as being more likely to have a disability themselves, the parents of disabled children are also more likely to live in poverty 3 and be in single parent households 4 . SEC believe that these proposals will take support from the most economically disadvantaged group within this already disadvantaged group of parents
Furthermore, the Government ’s Equality Impact Assessment only considers the impact of these proposals on the parents of disabled children. It does not consider the impact on the life chances of disabled children themselves. Sixty per cent of pupils who get no
GCSE passes at all have special educational needs 5 and they are three times more likely than other young people to be NEET by the age of 19 6 . Taking away legal support for parents who are struggling to get the best education for their child is likely to make these inequalities worse. SEC cannot see how these proposals are compatible with the
3 Contact a Family (2009) Counting the Costs
4 One Parents Families (2006) The Disabled Child Project
5 Robert Cassen and Geeta Kingdon, Tackling low educational achievement (2007) Joseph Rowntree
Foundation
6 Stephen Evans, Disability, Skills and Work: Raising our ambitions (2007) Social Market Foundation and
Disability Rights Commission

Government’s legal duty to promote equality of opportunity between disabled people and non-disabled people.
3) The Government believes there are sufficient alternative sources of support to justify the removal of legal aid in this area
The Government identifies Parent Partnership Services (PPS), the Advisory Centre for
Education and IPSEA as free sources of advice on education matters. It states that the presence of these alternative providers of advice makes the provision of legal aid in education cases less needed. However, the Advisory Centre for Education and IPSEA are both members of SEC and they tell us that they already get more requests from parents than they can provide support for and have no spare capacity. Other SEC members also offer helpline advice and Tribunal support and tell us how busy they are.
None of our member organsations will be able to offer replacement funding for the independent assessments parents are currently able to commission using legal aid.
PPS are statutory services that provide information and advice to parents on SEN matters. However, we know that some PPS are restricted by their local authorities as to the type and level of support they are able to offer parents in relation to the Tribunal, despite Government guidance to the contrary. PPS are also facing huge resource issues due to the financial situation in local authorities.
In the current financial environment, to expect these organisations to suddenly find the capacity to support this most disadvantaged group of parents – who may have multiple and complex problems – is simply not a realistic possibility.
Contact information:
Julie Jennings
RNIB
Chair, Special Educational Consortium
Julie.Jennings@rnib.org.uk
Matthew Dodd
Policy Officer, Special Educational Consortium
MDodd@ncb.org.uk
0207 843 9709