Proposals for the Reform of Legal Aid in England and Wales
A response from the Special Educational Consortium
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 Association
of Advisory Officers for Special Educational Needs  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
About the Special Educational Consortium
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). SEC deals with these issues in
relation to education policy.
SEC is made up of 23 voluntary and professional organsiations 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. This consensus is communicated to
Government, Parliament and officials in order to influence policy development. SEC is
most active when there are proposals for changes in policy, legislation, regulations and
guidance that may affect disabled children and children with SEN.
Note on SEC’s response
SEC’s response addresses only one issue within the consultation: the removal of SEN
appeals from the scope of legal aid. As much of the consultation questionnaire was not
relevant to this point, we have not used the questionnaire and addressed this single
issue in the response below.
Introduction
The Government is proposing to remove all education appeals from the scope of legal
aid, including where it relates to matters of special educational needs. SEC is asking the
Government to reconsider this proposal.
SEC believes that access to a suitable and challenging education is a right for all
children and that the parents of disabled children and children with SEN have a right to
get the educational support their child needs. As such, parents need to be able to
enforce these legal obligations when 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.
SEC recognises that it is the Government’s intention to reduce the adversarial nature of
the SEN system. SEC welcomes this intention. However, these proposals could make
the system more adversarial by pushing parents into making disability discrimination
claims, which will remain in the scope of legal aid, instead of SEN appeals which will
not. Whatever the case, no process can be perfect and there will always be a small
number of parents and children who are let down by the system. Where this happens,
recourse to the law is the only option available and the requirements of justice mean
that parents must be helped to access this process if they are unable to themselves.
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SEC also believes that there has been a failure to distinguish between education claims
more generally and parents appealing to the First-Tier and Upper-Tier in order to see
that their child’s special educational needs are met. The figures from the Tribunal1 show
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.
Finally, SEC believes this failure to assess SEN appeals separately from education
appeals more generally has led the Government to wrongly state that there is sufficient
justification to remove SEN appeals from scope. The proposals as they stands will take
away support from the most disadvantaged group within an already disadvantaged
group of parents and could seriously effect the life chances of disabled children and
young people in the future – we do not believe this is the Government’s intention. SEC
strongly urges the Government to re-evaluate its decision in regards to SEN appeals
using the criteria set out in the consultation document and with consideration of the
following points.
The Government’s reasons for removing SEN appeals from scope
The Government gives three reasons why it believes it is justifiable to remove special
educational needs appeals from the scope of legal aid:
1. 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; and
3. there are sufficient alternative sources of support to justify the removal of legal
aid in this area.
SEC believes that in light of the issues raised below, the Government may wish to
reconsider its decision to remove SEN appeals from the scope of legal aid.
1) The education of children cannot be accorded the same level of priority
as other more important issues
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
1
www.sendist.gov.uk/documents/publications/annualreports/annualreport_08_2/009.pdf
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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. SEC does not believe
that these proposals fit with the Coalition Government’s clear commitments to
supporting the families of disabled children to get the best education for their child. Nor
do they sit with the Prime Minister’s personal commitment that the Government will do
nothing to make life for the families of disabled children more difficult.
In addition, SEC believes that there has been a failure to distinguish between education
claims (SEND) Tribunal in more generally and parents appealing to the First-Tier and
Upper-Tier in order to see that their child’s special educational needs are met. This is
exemplified by the statement in the consultation document that education appeals are
less justified on the basis that they may be a result of children’s “personal choices”. We
do not believe that the Ministry of Justice is intending to imply that disabled children and
children with special education needs are responsible for their additional needs. SEC
would welcome clarification from the Government in its response that this is not the
implication of this statement.
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
poverty2 and be in single parent households3. 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 needs4 and they are three times more
likely than other young people to be NEET by the age of 195. 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
2
Contact a Family (2009) Counting the Costs
One Parents Families (2006) The Disabled Child Project
4 Robert Cassen and Geeta Kingdon, Tackling low educational achievement (2007) Joseph Rowntree
Foundation
5 Stephen Evans, Disability, Skills and Work: Raising our ambitions (2007) Social Market Foundation and
Disability Rights Commission
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Government’s legal duty to promote equality of opportunity between disabled people
and non-disabled people (s149 of the Equality Act 2010). SEC would welcome
clarification from the Government in its response on what assessment it has made of
the impact of these proposals on the life chances of disabled children.
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.
Unintended consequences of the proposals
Under the Equality Act 2010, public authorities are required to make reasonable
adjustments for disabled people. This includes for disabled children in school. If parents
feel a school is failing to take the appropriate steps to support their child in school they
can make a claim on the basis of a failure to make reasonable adjustments. However,
there has been a consensus among organisations supporting parents – including the
many SEC members who provide information, advice and direct support - that it is
generally more effective and less adversarial for parents to appeal against a relevant
decision of the local authority using the special educational needs provisions in Part IV
of the Education Act 1996. The opportunities to appeal have increased since the
introduction of a right of appeal against the decision of a local authority not to amend a
statement. This opportunity could now arise annually.
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Removing the ability of parents to receive legal help for SEN appeals using Part IV of
the Education Act 1996, but retaining it for discrimination claims, will almost certainly
lead to an increase in the number of discrimination appeals, or joint SEN and
discrimination appeals. Taking a discrimination appeal against a school can be very
adversarial and lead to a break down in the relationship between the school and
parents. Discrimination claims also tend to be more complex, costly and timeconsuming for the Tribunal. SEC has serious concerns that a sharp rise in
discrimination claims will be the unintended consequence of the proposals as they
stand. We do not believe that this is the intention of the Ministry of Justice, and it runs
contrary to Department for Education’s policy to reduce the adversarial nature of the
process.
For more information please contact
Kate Williams
Chair of SEC working group on legal aid and Head of Policy and Public Affairs at
Ambitious about Autism
KWilliams@ambitiousaboutautism.org.uk
020 8815 5441
Matthew Dodd
Policy Officer, Special Educational Consortium
MDodd@ncb.org.uk
020 7843 9709
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