A local authority insisted that lawyers win 70% of its special educational needs (SEN) tribunal cases through contractual demands which could have compromised solicitors’ duty to the court, the Gazette has learned.
In a contract with one law firm, seen by the Gazette, Buckinghamshire County Council set out its ‘more robust approach to tribunals’ – the authority’s response to losing 100% of appeals previously prepared by SEN officers.
The target Buckinghamshire set one law firm, Baker Small, was ‘to defend and succeed in 70% of appeals which proceed to a final hearing’ in 2015-16. A stated aim was ‘savings to the local authority’, and the contract could be ‘terminated due to poor performance’.
Lawyers who have signed such contracts may face ethical dilemmas, professional practice specialists said. Alan Radford, partner at Browne Jacobson, told the Gazette: ‘A client service level standard that says we will succeed in [70%] of cases potentially raises the spectre of a clash between the solicitor’s duty to the court and their obligation to the client.’
Mark Small, who as managing director of Baker Small Legal Services Ltd was at the centre of a row in June 2016 for posting in social media about a ‘great win’ for a local authority, told the Gazette that some councils take a ‘Stalingrad’ approach in demanding that lawyers defend cases to the bitter end.
Small, who now acts primarily for parents, said: ‘We would have refused to act for a local authority if it had put us in a position which compromised our duty to assist the tribunal. Fortunately, we were able to resolve cases with our local authority clients, though unfortunately these often happened close to the hearing because their mindset was fixed on defending the appeal.’
Appeals have become toxic due to cuts in council funding, he added.
‘I had never seen an area of law that is so manipulated by lawyers on both sides,’ explained Small. ‘The tribunal is the most rudderless legal process we have in this country, which allows this contentious, adversarial, relationship to breed.’
The Buckinghamshire County Council contract in 2015-16, which ended before the social media furore, required 100% of cases to have legal representation at the hearing. A council spokesperson said: ‘In terms of our current approach, we do use legal representation for some tribunal hearings, this is predominantly where parents have engaged legal support. Where possible, we try to work with parents to resolve any issues that have arisen prior to or whilst the tribunal process is ongoing. Buckinghamshire does not set targets for tribunal outcomes.’