Evidence submitted by Education Law Practitioners'
Group (LAR 120)
1. The Education Law Practitioners' Group
is a group of lawyers working in the field of Education Law primarily
on behalf of parents and children. We believe that it is important
that the Constitutional Affairs Committee consider the impact
of the Carter Review on Education Law because of the very wide
implications which this has in relation to the needs of children
generally and, particularly, those suffering social deprivation.
2. Education Law covers a number of areas,
including school admissions and exclusions, negligence claims,
and in particular special educational needs ("SEN"),
including related issues such as disability discrimination, action
necessary to enforce agreed SEN provision, and the particularly
prevalent problem of children who are out of school. Education
lawyers frequently have to deal with related social welfare law
issues, since children with SEN are frequently also disabled and/or
have other care needs.
3. This is an area where there is a growing
need for assistance and a relatively small number of organisations
with specialist Education contracts. They are not evenly spread
through the country; our members receive enquiries from all over
England and Wales irrespective of their location.
4. The need for assistance with Education
Law issues, including in particular SEN, is illustrated by a number
of recent developments:
— Department for Education statistics
show that approximately 60% of children permanently excluded from
school each year have SEN.
— Experience is that local authorities
are failing to comply with the law relating to SEN provision,
and the DfES found it necessary in December 2005 to issue a letter
to all Chief Education Officers advising that they must not operate
blanket policies refusing to assess particular groups of children
with SEN; and must, in Statements, specify, detail and quantify
the special educational provision necessary to meet the needs
of the child concerned. Despite that, the problem persists.
— OFSTED reported in October 2004 that
the policy of inclusive education of disabled pupils and pupils
with SEN is failing and that provision in schools is inadequate.
This has been a particular problem in relation to children with
behavioural and social problems who also form the greatest proportion
of excluded children with SEN.
— The Children's Commissioner has recently
reported that current educational provision for children with
autism is "shocking and appalling".
— The House of Commons' Educational
Select Committee reported in July 2006 that there are significant
problems with the current system of SEN provision, particularly
the failure to cope with the rising number of children with autism
and social, emotional or behavioural difficulties.
— The same report identified that there
are significant long-term economic and social costs involved in
failing children with SEN. Particular concern was expressed in
relation to children with SEN who end up being excluded and involved
in crime.
5. The importance of proper provision for
children is identified in the Every Child Matters initiative.
As indicated above, there continues to be a failure of local authorities
and others involved with children to deliver properly joined-up
services for vulnerable children. It therefore becomes all the
more vital that parents and children should have recourse to proper
legal advice and help in order to access their full entitlement.
Education Law practitioners are uniquely well placed to assist
in making the initiative a reality.
CARTER REVIEW
AND DCA PROPOSALS
6. The main proposals affecting Education
Law practitioners are as follows:
— As from April 2007, Legal Help work
will be subject to fixed fees, either at a national average of
£293 per case, or regional averages varying between £155
and £440 per case. Where work assessed at hourly rates exceeds
four times the fixed fee, it will be paid in full but only after
assessment by the LSC; if after assessment it is reduced to a
level under four times the fixed fee, only the fixed fee will
be paid.
— Disbursements will be paid in full
but subject to checking if deemed out of profile.
— By 2009 only providers achieving
levels one or two on peer review will be permitted to have contracts.
— At a later stage consideration will
be given to fixed price tendering for work carried out under full
certificates at fixed fees.
7. At present Education Lawyers carry out
a high proportion of contracted work, mainly because public funding
certificates are not available for representation in tribunals,
including SENDIST and independent appeal panels dealing with permanent
school exclusions and school admissions.
8. Additionally, a substantial amount of
work in other cases (for example, to enforce provision in statements
of SEN, or to secure full time education or education for sick
children) is carried out under the contracted system with a view
to resolving problems without the need for court proceedings where
possible.
9. The basis of the calculation of the proposed
fixed fees has not been supplied by the DCA, which suggests that
London firms have higher averages purely because of the greater
costs of operating in London. This demonstrates a serious misunderstanding,
given that all firms work to prescribed hourly rates which are
only slightly higher in London. The differences are more likely
to be explained by the particular problems of social deprivation
in some areas resulting in complex social and educational problems,
and the fact that local authorities in such areas are frequently
struggling and disorganised; therefore any dealings with them
unavoidably involve extra work. Additionally, some authorities
are more unwilling to negotiate or concede claims, leading to
the increased need to take tribunal cases through to full hearings,
or to commence court proceedings.
10. It is suggested that the reforms aim
to promote early settlement of cases. Since in education cases
we are always dealing with opponents who are not legally aided,
they will become aware that it is in their interests not to negotiate
and to force withdrawal of meritorious cases for lack of funds.
11. In some areas of the country, notably
the North, the number of providers carrying out education work,
in particular SENDIST work, is extremely low, which produces unrepresentative
average figures, and would mean that clients who cannot travel
(due to disability or low income) cannot access legal help; solicitors
will be unable to afford to travel to them under fixed fees.
12. The suggested fixed fee figures are
not realistic. They are supposed to import a "swings and
roundabouts" result, but it is impossible to see how that
can operate in firms undertaking education work of any complexity.
It is characteristic of education cases that there is a long and
complex history on which instructions have to be obtained; a large
volume of complex specialist documentation; and complex legal
issues. It follows that the initial stages of taking instructions,
perusing documents and advising will use the greater part of the
fixed fee, before any other substantive work is done. Therefore
few cases will fall sufficiently under the fixed fee level to
compensate for those which are substantially above it.
13. The LSC/DCA claim that the use of fixed
fees results in an increased number of acts of advice is illusory.
This has to a great extent been achieved by two measures:
— Where in the past a client has presented
with a number of education problems—for example a child
with SEN who has been excluded from school and is not receiving
full time education—these were all dealt with under one
file and therefore recorded as one act of advice. Under a fixed
fee scheme, such cases are divided into at least three separate
files representing the separate elements of the case, but no more
acts of advice have in fact taken place.
— Firms doing high quality work have
previously operated a filter system whereby they will not accept
cases which have no legal merit. In those cases the inquirer has
been given some basic advice over the telephone without charge.
Under a fixed fee system, the inquirer is taken on as a client,
only to receive precisely the same advice as they would previously
have been given without charge.
SENDIST CASES
14. It may be of assistance to give basic
illustrative information as to the work involved in an appeal
to SENDIST, perhaps the most common type of contracted work.
15. Once instructions have been taken, grounds
of appeal are drafted, identifying the child's needs and challenges
to the Statement. This requires initial analysis of the Statement
and various educational and experts' reports. Relevant documentary
evidence must be identified and lodged.
16. The lawyer must identify consider the
need for expert evidence. SENDIST will not order any special needs
provision unless it is supported by professional or expert evidence.
As there is a shortage of experts in this field, finding them
can be difficult. They must then be fully briefed and their reports
carefully checked.
17. Subsequently a case statement is entered.
This involves consideration of all the evidence, including experts'
reports, detailed analysis of the disputed elements of the Statement,
and formulation of the educational, medical, factual and legal
issues involved.
18. SENDIST then sends large bundles comprising
all documents filed by both parties. It is necessary to analyse
this, in particular the local authority case statement and evidence,
to consider what further work is required before the hearing.
19. An increasingly important element of
the work involves drafting a "Working Document". This
sets out the wording suggested by each side for the disputed elements
of the Statement, showing those items which are agreed or disputed.
This can take several hours in a complex case.
20. Preparations are then made for the hearing
itself. Legal aid is not available for representation at the hearing,
and solicitors have to do a substantial amount of work to find
volunteer representation, for example from charities. Occasionally
solicitors represent clients without charge rather than leave
them unrepresented. Where advocates are found, they must be extensively
briefed.
21. Finally, after the hearing the client
is advised on implementation of the tribunal order and/or any
appeal.
22. Therefore SENDIST cases require several
hours of complex work which cannot conceivably be done within
the proposed fixed fees. The availability of exceptional claims
where costs exceed four times the fixed fee does not assist practitioners
to any great extent. At the outset of any SENDIST case it is impossible
to assess whether the exceptional fee figure will be reached.
London firms therefore carry the risk that they may do work to
a value of up to £1,759 for which they will only be paid
£440.00; or they may do work to a value of £1,800, but
if as little as £41.00 is disallowed on assessment, again
they will only receive £440.00. Given the very low profit
margins to which legal aid firms work, the risk of losing over
£1,000 each on a substantial proportion of cases within one
department is not acceptable.
23. It is therefore suggested that if a
fixed fee is imposed, then the exceptional claim level should
take effect at a much lower figure, at most 2.5 times the fixed
fee.
24. It is clear that a significant level
of expertise is needed for SENDIST work. Each case will be different
and this is not work which can be sensibly commoditised or done
to a satisfactory standard at paralegal or newly qualified solicitor
level. However, the pay rates envisaged are clearly wholly uneconomical
for work carried out by experienced solicitors.
25. It is not acceptable that parents in
SENDIST cases carry the substantial disadvantage that Legal Aid
is not available to cover representation or the costs of calling
expert witnesses: their opponents are not so constrained and additionally
have much more SENDIST experience. Given the increasing technicality
of tribunals of this nature, we would suggest that consideration
should be given to whether this work should in fact be funded
by full legal aid certificates, both to deal with this issue and
to ensure that it is carried out by suitably qualified lawyers.
26. A further concern arises in relation
to the DCA proposals for disbursements in such cases, in particular
the suggestion that out of profile claims may be disallowed. Experts'
fees in SEN cases are always high, and practitioners are therefore
worried that they will carry the risk that the LSC will disallow
such fees leaving practitioners with personal liability.
27. Experience of tailored fixed fees has
demonstrated that these have led a number of firms to stop doing
SENDIST work. If they are reduced to the rates proposed, it is
inevitable that yet more firms will stop doing such work, to the
detriment of a very vulnerable sector of the population.
28. This would clearly be a false economy.
If the tribunal habitually has to deal with a higher proportion
of parents who do not have the benefit of legal advice, this will
inevitably lead to longer hearings and the need for much more
help to parents from tribunal staff. That will increase the expenses
of the tribunal itself.
29. SEN issues result in the need for legal
assistance in many other areas, for example where children do
not receive the provision set out in Statements. Again this requires
specialist high level legal help which may not be possible at
fixed fee rates.
30. The statistical evidence cited at the
commencement of this document as to the effects of failure to
provide for SEN, in terms of initial school exclusion and subsequent
pressure on the social security system and involvement in criminal
activities, indicates the major costs to be borne by society as
a result of failures in this area. SENDIST is not such a busy
tribunal that proper legal representation would represent a substantial
expense, whilst the potential savings in terms of social security
support, crime prevention and reduced criminal justice and prison
provision in later years would be very substantial.
31. Whilst the issue of SEN and SENDIST
cases provides the most stark illustration of the importance of
this area of work and the difficulties involved, our members have
major concerns in relation to other areas of work. Perhaps the
most important is in respect of children who are out of school.
This may result from a number of factors, for example:
— Inadequate provision of school places.
— Children with school phobia.
— Children who are hard to place because,
for example, they are in care, from traveller families, or recent
immigrants.
— Children who have been permanently
excluded from school and for whom alternative provision has not
been made.
— Children with SEN for whom a suitable
school has not yet been identified.
32. Frequently local authorities are only
induced to comply with their legal responsibilities in this area
by the involvement of lawyers. Again, these are issues which are
not easily resolved within the suggested fixed fees.
33. Overall the proposals are more likely
to encourage firms to take on a preponderance of low cost straightforward
cases at the expense of high cost complex cases; whereas it is
the latter where the need for legal help is greatest.
34. The proposals further do not provide
any incentive for practitioners to gain experience, or for firms
to keep experienced and senior lawyers doing legal aid work in
this area. There is a very high demand for such work within the
private sector and, as a matter of simple economics, firms will
be forced to focus on the private sector at the expense of the
legal aid sector.
QUALITY CONTROL
AND PEER
REVIEW
35. It is literally impossible for practitioners
to carry out the very complex work described above at level 1
or 2 standards within the fixed fees suggested. However, we do
not believe that peer review standards should be diluted. This
will inevitably mean that more practitioners will either withdraw
from the work or will fail at peer review, leading to lower availability
of help for the most socially vulnerable.
LICENSED WORK
36. Whilst proposals for this are not yet
fully formulated, we are concerned that overall the Carter and
DCA proposals will drive senior and experienced practitioners
out of legal aid work, and that complex legal work will be expected
effectively to be done by paralegals and newly qualified practitioners.
We are very concerned indeed that, unless experienced practitioners
continue to be involved in legal aid work, clients will not be
able to obtain adequate legal advice and their rights will not
be identified, let alone defended through the courts. When dealing
with claims at the certificated level, for example judicial review
and education negligence work, it is of course the case that our
opponents are not financially constrained in the same way as we
are, and certainly they would not contemplate having such work
done at less than senior level. This, again, would mean that legally
aided clients are at a major disadvantage, and indeed that there
will be waste of legal aid funds by virtue of the fact that work
will be carried out more inefficiently and at lower standards.
TIMING
37. It is suggested that firms should restructure
to meet the requirements of the Carter reforms. This is unrealistic
in the timescale suggested and without substantial funding. It
is particularly unrealistic in relation to Education Law practitioners
who cannot possibly band together to provide an effective service
covering the whole country. Proposals for community legal advice
centres and networks currently do not include Education Law services;
this leaves a very substantial lacuna by virtue of the close connection
between education and social welfare work.
38. Overall, the proposals are not justified
by evidence as to any increase in civil legal aid spending in
recent years, and indeed we question whether any other area of
government spending can demonstrate the same level of efficiency.
It is our view that the way forward is to continue to fund this
work at hourly rates coupled with proper peer review to maintain
standards.
October 2006
| 
