School rules

Tribunals, negligence, admissions, exclusions and even major capital projects are keeping lawyers in the education sector very busy.

Michael Gerrard investigates

The highly niche but important world of education has been thrust into the forefront once more with the development that the number of lawyers appearing at special educational needs (SEN) tribunals has dropped during the past year (see [2002] Gazette, 4 January, 4).These very same tribunals are subject to legislation change, which could arguably bolster work levels.

Alongside this there are several school-based issues, which provide a steady stream of work for education specialists.These include such topics as negligence, arguments over admission and exclusion (see [2002] Gazette, 4 January, 21) and even large-scale capital private finance initiatives (PFI).Human rights legislation has not as yet made an impact in its own right, but it is often cited as part of the general package in a number of cases, especially exclusions.Many solicitors suggest that the hefty public debate surrounding the implementation of the Human Rights Act 1998 has prompted more people to contemplate actions.Paul Fletwell, a London-based education specialist partner at Blake Lapthorn, says: 'Generally, people are less inclined to accept things which might have been accepted in the past.'This is borne out by the debate surrounding SEN tribunals - the tribunal's annual report showed parental legal representation had fallen to 17.8% of hearings, compared with 19.6% the year before.

In turn, local education authorities sought legal representation at 3.8% of hearings, half the previous year's figure.

At the same time, the tribunal has seen a 13% increase in appeals to 3,035.Cases are brought to the tribunal by parents concerned that their child's special educational needs have not being addressed by the student's school.While education specialists cannot explain the specific cause of last year's drop, they suggest it represents a long-standing trend.There is no legal aid available for parents and there has been a growing trend to use experts such as psychologists rather than lawyers in an increasingly informal setting.Anne Harding is assistant head of the London Borough of Croydon's legal services department, and a member of the Law Society's Local Government Group's special interest group on education.

She says: 'There is probably a hope that the tribunal can make its decisions without lawyers.'Her authority does not send lawyers to such hearings, and she notes there is a definite division of practice throughout the country.But changes forced by the Special Educational Needs and Disability Act 2001 will from this autumn widen the scope of the tribunal's remit, with disability discrimination becoming part of its fiefdom.Disability as far as the Act is concerned extends through many layers from dyslexia and autism to physical impairment.Some predict this wider brief should provide a fresh stream of work, but others take the view that things will stay much the same.Pat Wilkins, partner and head of the education department at London firm Fisher Meredith, says that many of her clients are from low-income families unable to fund actions.

'The problem about people being able to be represented at SEN tribunals remains.

The government may have extended its remit, but it has not extended legal aid provision,' she says.David Smellie, a partner and head of the education group at London firm Farrer & Co, says the tribunal's wider remit will draw in more children.

Notably, the new Act covers disability discrimination in both the state and private sectors.But one does not need just to look at cases of perceived current injustices at school as sources of legal work.

Recent cases have found that schools can be liable for negligence even after pupils have left.Several new clients have been prompted through the door as a result of cases such as Phelps v LB Hillingdon and Bradford-Smart v W Sussex CC.

Both cases - which were heard during 2000 - involved claims of negligence.The former concerned dyslexia and found that schools were liable for negligence for not discovering or investigating whether a child suffered from the condition.

The second case concerned the issue of bullying and whether a school's responsibilities extended beyond the school gates.

The High Court ruled in this case that the school's responsibility did not stretch that far.Beyond these issues, arguments over admissions and exclusions dominate work within the sector.Potential disputes concerning children's admission into school in the state sector revolve around the belief in a supposed right for parents to choose their child's school.

But it is misunderstandings over this 'right' that provide much seasonal work for lawyers during spring, when schools make their selections, and appeals are triggered.Philip Storey, an assistant dealing with the education sector at Birmingham firm Bailey Wright & Co, says: 'They have a right to express a preference and have it considered if there is a vacancy, but it is not a right to choose.'Aggrieved parents can then proceed to appear at a council admissions appeals panel, but in the private sector such a structure is unavailable and the disconsolate parents might try their luck through the courts.Admission to independent schools is usually by examination, but those who fail sometimes try other approaches.

Mr Smellie - who acts for Eton College, among others - notes that in certain recent cases aggrieved parents have claimed racial discrimination.In terms of arguments about exclusion, otherwise known as expulsion, the state sector again puts its faith in an independent tribunal, while those in the private sector head for the courts citing contract law and breaches of natural justice.Justice is also very much uppermost in the minds of the teaching unions, whose legal departments have found themselves involved in defending members from charges of bullying, arguments over exclusion, and winning compensation for stress.At present, the country's second-largest teaching union, the National Association of Schoolmasters and Union of Women Teachers (NASUWT), is involved in an action concerning the reinstatement of a pupil following his exclusion from a school in Lewisham, south London.The union's members were balloted on the subject, and they were unwilling to see this pupil back in school.

The Court of Appeal is currently considering the case - P v NASUWT - after the High Court found in favour of the union.While disputes such as this and the earlier contentious subjects occupy much of the time of education specialists, several firms are finding work which concentrates on capital projects.Schools - like many other parts of the public sector - have increasingly taken on board the concept of PFI, using private funding to benefit public sector projects.Ms Harding states that, in general, local authority legal officers are increasingly being asked to advise their authorities on all aspects of a PFI project, which can cover several areas of law from construction contracts to employment issues.National firm Eversheds has been in the forefront of practices advising local authorities how to go about the process, and was recently involved in the 125 million project to refurbish and rebuild 90 schools in Stoke.Stephen Pearson, principal associate in Eversheds national projects group, says: 'It is a growing area of work as it becomes a normal method of funding projects, even at authorities not traditionally keen on private investment.'PFI is a subject unlikely to trouble the private sector, but uncertainty over the workings of a little-known branch of government is.Next month, the Performance and Innovation Unit (PIU) of the Cabinet Office is scheduled to publish a report on the entire voluntary sector.

Of particular concern to Mr Smellie and his clients is the possibility that it might recommend ending the charitable status which many independent schools enjoy.He predicts that large-scale harmful changes will not be forthcoming, but he has been spending much time recently advising client schools on how best to protect themselves.Mr Smellie says: 'My understanding is that the PIU is more likely to suggest changes to general charity law and regulation, which may of course affect independent schools in the process.'To this end he is advising client schools to prepare themselves for possible outcomes after the report.Mr Smellie must anxiously await the outcome of the report.

In the meantime, like the other lawyers in this field, there is plenty of homework to be getting on with.Michael Gerrard is a freelance journalist