The actions of one lawyer must not call into question the need for parties to have legal representation in SEND appeals.
The actions of Baker Small on Twitter have caused many to question whether lawyers should be allowed at Special Educational Needs and Disability (SEND) tribunals. As a lawyer who assists and represents parents at these tribunals, I am concerned that the actions of one lawyer must not call into question the need for parties to have legal representation in SEND appeals.
The legal framework surrounding SEN is becoming more complex. Parents and young people often need support to navigate the system. While the tribunal is set up to allow parents and young people to represent themselves, in some cases the support of a lawyer is essential to help them tackle legal arguments and put their case to the tribunal for their desired outcome.
Making an application to court and running a legal case is stressful for any litigant, but even more so when the application relates to the SEN of the litigant’s child. It can be helpful for parents to have the support of an independent, specialist third party who can act for them, liaise with the local authority (with which the parents may have a strained relationship) and advise on their case.
The parent and their lawyer work together to try and achieve the best for the child. This is a vital safeguard to their educational rights as it becomes more common for LAs to seek advice and representation from solicitors (whether in-house or external) in SEN matters.
My experience of having a lawyer acting for the LA has been positive; the child or young person remains the focus of the case and both parties act with this in mind. Matters can sometimes be resolved quickly, with the child or young person getting the support or placement they require. LAs should be able to instruct lawyers but they need to be sensitive and remember that this can be an extremely difficult and stressful experience for parents.
An adversarial approach is not taken in most cases and both sides seek to resolve the case promptly for the benefit of the child. This is always my aim when taking on a case – to reach a settlement which will meet the child’s SEN and without the need for an appeal or court action, which inevitably leads to delay and risks leaving the child in limbo while the litigation process grinds on.
If matters can be resolved without the need for a court process, so much the better. Solicitors acting for LAs can often help the resolution process by offering the LA robust legal advice. This can encourage a LA to concede or adjust/soften its position as the LA reviews matters with the benefit of a lawyer’s perspective about what is likely (or not) to find favour with the tribunal.
A major issue is parental access to legal advice and representation. Parents can obtain legal aid-funded education law advice and assistance but this is only available to those financially eligible. If parents do not qualify for legal aid they are faced with conducting proceedings themselves or paying privately. Even if a parent can access legal aid, the legal help scheme does not cover representation at the final hearing.
Parents are then left having to pay privately for representation, which many cannot afford (hence their financial eligibility in the first place), or trying to secure pro bono representation which is in high demand. This creates an inequality of arms: parents representing themselves at the final hearing while the LA is legally represented, often by counsel. This is not right and must be reconsidered by the Legal Aid Agency.
The process of resolving disputes between parents and LAs can be long and frustrating. We need to remember that at the heart of this is always a child whose parent believes needs support. Do not typecast all lawyers as a result of the ill-judged triumphalism of one. Most of us working in the SEN field do so to make a difference to children and young people’s lives.
Kate Harvey is a solicitor and head of education law at Coram Children’s Legal Centre