Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by MG Law Limited  (LA 111)

 

Legal Aid, Sentencing and Punishment of Offenders Bill - 205

 

1. I should preface thee comments on legal aid reform by setting out some of the background to the firm. We are a firm of solicitors, originally established in 1998 with the aim of providing specialist legal advice on education law and community care (particularly for the disabled). That remains our focus although we now deal with aspects of Health Care law including mental health, best interests work and access to treatment. While we may have views on the proposals to remove other areas from scope, our comments are relate solely on our areas of specialist expertise, and the impact of the proposals on these.

 

2. Although we also work for clients on a privately funded basis, we are the largest provider of legally aided education law work in the country and also have considerable experience of running the CLA’s telephone advice line on education law in conjunction with the Children’s Legal Centre. This has enabled us to see both how a telephone advice system may work in practice, and given us an overview of education law across the country. In addition, we have a highly specialist team of more than 10 solicitors with appropriately trained paralegal support who deal with a full range of community care problems, and best interests work.

 

Summary

3. The definition of special educational needs in Schedule 1 para 2 (p96) should be widened to include support for those up to the of 25 who have special educational needs and include provision in colleges of further and higher education as well as schools. The omission of this group is anomalous and appears to be in error.

4. Exclusion from school should be reinstated – failure to do so will not reduce costs and may increase them as more cases are brought as discrimination claims.

5. Significant areas of community care law covering core assessments, direct payment proposals, and rights to continuing care seem to have been omitted (although the drafting is not crystal clear on this); again this appears to be anomalous and in error.

6. In addition, the current method of drafting in the Bill, which means that eligibility for public funding will depend on an assessment of whether or not a claim could be made under specific sections under a number of statutes will prevent the telephone gateway which is currently proposed for delivery of advice on community care from operating effectively. Our experience in working with the telephone gateway in education law shows that it can work well when the questions to be considered are clear and straightforward, but does not work at all well when more complex legal definitions have to be considered and applied. This is far more problematic in the area of community care.

Legal help for Education Law cases

Special needs

7. We note the Government’s response to the original consultation and welcome the fact that work on special educational needs under Part IV of the Education Act 1996 can continue. This mainly covers appeals to the Special Educational Needs Tribunal, which makes up a very large proportion of the work carried out by the most specialist education law firms. The Government stated in its summary that cover would remain for special educational needs matters, and accepted that failure to include special needs tribunal appeals would merely mean that many of these cases would be brought as disability claims. In addition they acknowledged that cases going to Tribunal were becoming increasingly complex and that special needs raise many of the same issues as community care which his to remain in scope. Further, children with special educational needs were more than twice as likely to live with a parent who also has a disability as defined under the Equalities Act 2010.

8. Unfortunately the method of drafting used by the framers of the Bill does not in fact achieve what the Government’s response indicated was the intention. While special needs educational issues for children under the age of 16 are covered by Part IV of the Education Act 1996, education of those over the age of 16 who will be attending a college of further education or special needs college rather than a school, are not covered as they do not come within Part IV and there is usually no appeal to the Special Educational Needs Tribunal. Instead they are covered by complex and ever changing systems of funding decisions currently split between the Young People’s Learning Agency (YPLA) and the local authority. The system is changing regularly causing great confusion about the legal obligations among both parents and professionals (including those within the education system). As a result we see an increasing number of cases where we are called upon to advise on these highly complex issues. To make matters worse, there is no longer any clear appeal system for parents to follow, as the appeal route through the YPLA has quietly been dropped from their procedures, leaving parents completely confused on how they can challenge the provision being made which may be completely inadequate for their child’s needs. Failure to provide timely guidance through the early stages of challenging assessments on provision will lead to an increase in the numbers of judicial review cases or alternatively disability discrimination claims, which will be the only mechanisms for redress.

9. Parents in this situation are having real difficulties sorting out who has what responsibilities for their child’s further education even though all can agree that it is essential education should continue beyond 16. Statements made by local authorities through their education and social services departments are often misleading in effect even if accurate, leading many parents to believe (wrongly) that their views and those of their child are mot to be taken into account. Yet again we will have to frame a number of these cases as disability discrimination claims which will have to be brought in the County Court (as SEND does not apply for this group) and will cost considerably more than advising parents through the proper local authority appeal mechanisms. It is also likely that many authorities, if not challenged at an early stage, will make decisions which do not comply with the complex and ever-changing legal obligations, causing an increase in judicial review. In addition, of course, many parents, particularly those with disabilities themselves, will never be helped.

10. This exclusion is particularly bizarre given the Government’s Green paper proposal that special needs provision and local authority oversight should continue to age 25. We are sure that its omission was an oversight, brought about by the decision of the drafters to deal with legal aid by specifying those detailed provisions which were covered by legal id rather than specifying areas for exclusion.

11. We would suggest that instead of limiting cover to cases under Part IV of the Education act, that the Bill should simply state that it covers c ivil legal services provided in relation to special educational needs as defined in part IV of the Education Act 1996, expanded to include learners up to the age of 25 and to cover provision for further and higher education .

Exclusions

12. Quite apart from the fact that this is a minor area for legal help funding, with very little cost to the public purse, it cannot be accepted that all decisions to exclude are correct. For example it is not always clear whether the child has actually committed the act which the head teacher alleges has led to the exclusion, let alone whether exclusion was an appropriate remedy. In addition, it seems bizarre to allow funding for access to a solicitor when an offence is committed outside school and action taken by the police, yet deny this when the school is taking action for what may be a similar offence. The negative consequences for a child of an exclusion from school for violence, for example, may be as significant to their future as a conviction for a criminal offence. Head teachers are not invariably right in their assessment of the facts of a case, yet this cannot be challenged unless they make a mistake in procedure.

13. As currently drafted, exclusions are also outside scope unless there is an element of disability discrimination. In fact the latest figures show that some 70% of all children who are permanently excluded have some element of special educational needs. If organis ations are unable to assist in exclusion appeals, they will simply have to run many of these cases through the disability discrimination system . Disability discrimination cases are much more expensive to run that exclusion appeals and the documentation involved may run to over 1,000 pages. Consequently removing the ability to advise in exclusion cases is unlikely to bring any costs savings at all and may in fact lead to an increase in costs and problems for the schools concerned in having to comply with the requirements of the Special Educational Needs Tribunal rather than the local appeal panel arrangements which are far quicker and more informal.

14. In addition looked after children (LACs) are at high risk of exclusion, both because of inherent special needs and also because of the almost inevitable behavioural problems that arise as a result of the chaos they have experienced earlier in their lives. The incidence of special needs among LACs is very high in proportionate terms as is their over-representation in the penal system. They have no voice of their own and are dependent for the main part on action being taken on their behalf by the foster parents. At present we are able to assist these foster parents under the legal help scheme. Foster parents, particularly those doing short term fostering (which again often includes the most needy children who have moved round many settings), cannot be expected to pay for advice and help to support the children in their care. What is proposed is a system whereby these children are denied any effective method of challenging the educational decisions being made on their behalf.

15. Foster parents are also particularly at risk from threats from LEAs to remove them from fostering panels if they cause too much fuss. We are aware from work carried out within the firm on peer review for education that individual authorities have in fact done exactly that. On one file examined, a foster parent raised perfectly reasonable concerns about the provision being made for a boy in her care who had special needs and had been excluded several times. The local authority’s initial reaction was for social services to advise the foster parent that if she continued to raise her concerns, she was at risk of being removed from the list of foster parents. Without legal help there will be nobody to take up cases of this particularly needy group whose life chances are already severely compromised.

Community care

16. The problems in community care stem from similar causes to the difficulties with drafting provision to cover advice on special needs, but are significantly more acute and will cause major difficulties if the telephone gateway is adopted as an initial route for advice. It would appear from Schedule 1 of the Bill that unless the case comes within the specific sections laid out in the Bill, no legal help can be given. The sections specified are generally those which give certain rights to provision. It is by no means clear that we can also act where the client for example needs a core assessment so that provision can be determined, or there is a dispute on how the provision is to be funded through direct payments etc. These areas (such as s2 of the Chronically Sick and Disabled Person’s Act 1980 ) in fact cause the main problems for our client base. It may be that these are considered to be connected matters under paragraph 39 of Schedule 1, but the drafting is distinctly opaque Care is going to have to be taken on all future occasions to make it clear that any particular community care provision is covered when legislation is amended.

17. Of more importance is the fact that the Government in its response has stated its intention to run community care through the telephone gateway before cases are submitted to the relevant telephone advisor for assistance. I run a telephone advice service under the current system, provide training for the staff carrying out initial assessments under the gateway, and review a selection of calls made by the operator service (presumably the equivalent to the telephone gateway set out in the Government’s response) to ensure quality. Knowing what I do of the constraints upon the gateway service I cannot conceive of any way in which this can be workable, given the current style of drafting. The client who telephones may not even realise that they have a community care problem rather than one for housing for example. However, social services and community care support will be the appropriate route to follow if the person concerned is under 21 and has at some stage been in care after the age of 14 (this is a gross oversimplification of the category, but necessary because of the legal complexity of giving a full description).

18. Telephone gateway staff have neither the time on the initial call nor the expertise in this complex area of law to assess accurately whether or not the case happens to fall within the list of sections set out in the Bill. It will be hard enough to ensure that all special needs case come through properly , for example if a child with severe special needs has been excluded from school. It will in my view be completely impossible to ensure any sort of a reasonable service from the telephone gateway if they are required to understand the full range of community care law. If they do, then the LSC (or whichever body takes over) will have to choose providers for the gateway who have a good range of specialist expertise, with proper legal supervisors, and allow considerably more than the current average of 8 minutes per call, as well as paying at a much higher hourly rate. This work will then be duplicated by the specialist advisors which has to result in a duplication of costs. The current system whereby in effect the gateway simply assesses means, and can tell generally whether something is in scope,(because the drafting is relatively non-technical) simply cannot work, and will bring the system into disrepute as well as running the risk of legal action for failing to meet the needs of individuals entitled to legal help under then new Act.

19. The best way out of the problem would be to revert to the current wording for the definition of community care work set out in the LSC manual. Failing that, all such questions relating to scope must be referred to paid specialists.

October 2011