The Ministry of Justice has announced proposals for the reform of legal aid in England and Wales. The proposals, contained in a green paper which was open for consultation until mid-February, aim to reduce the overall legal aid budget by £350m by 2014/15. Many legal service providers, including not-for-profit organisations, have expressed deep concern over the proposals, which cut many areas completely out of the "scope" of legal aid funding. These include cases and proceedings in many private child and family law matters, education, employment, most immigration matters, benefits and more. The government has also proposed to make it more difficult for individuals to be eligible for legal aid.
The proposals are highly problematic. The government has an obligation to ensure that all members of society can access and secure justice. In order to put this principle into practice, it is essential that all individuals have access to legal advice and representation when required. Legal problems are frequently complex, and require expert advice and analysis to resolve them. The cost of obtaining this advice and representation will be out of reach of many people, particularly for disadvantaged or vulnerable members of society, and without access to legal aid, many individuals will simply be unable to take legal action to secure their rights and entitlements.
Effect on young people
The proposals could disproportionately affect children and young people, who due to their age and lack of knowledge required to negotiate complex legal processes, will be less able to initiate or respond to legal proceedings. Children and young people, particularly those below the age of 16, must also rely on their parents or carers to enforce many of their rights, for instance, their right to education and adequate housing. Cutting access to legal aid for adults in many of the areas mentioned in the green paper will therefore also have a negative impact on children, as parents or carers may be left unable to take action to protect and secure the rights of their children.
One area that will be removed from scope under the proposals is all legal help and representation in education matters. This will include: advice on appealing to the local authority or first-tier tribunal in relation to establishing, revising, or acting on a statement of special educational needs (SEN); representation at the upper tribunal in SEN cases; advice on school admissions and appealing school admission decisions; advice in relation to long-term exclusion or refusal to provide education; advice on school bullying; and advice on claims for negligence in the provision of education.
Removing access to legal aid for these education matters is very concerning. Access to legal advice and representation in education matters is essential for the government to fulfil its obligation in international law to ensure that every child has access to quality education. The right to education must not only be available in legislation; children and parents must be able to access this right, and where it is being denied, they must be able to take legal action to enforce it.
Justification for removal of education advice
The government claims that legal advice and assistance on education should be removed from scope as the objective importance of the issue is relatively low, that the litigant (which, in education cases is normally the parent) has the ability to prepare and present their own case at education tribunals, and that other sources of funding and ways of resolving education disputes are available. However, even this narrow set of criteria does not justify the removal of education matters from the scope of legal aid. Contrary to the government's claim that advice on education matters is not "objectively important", lack of access to suitable education can have a very damaging impact on children and young people. It can impair their ability to achieve and gain important life skills and will increase government costs in other areas, such as welfare benefits, community care and criminal justice. Removing access to legal advice for parents who wish to appeal a SEN decision for instance will result in many children with SEN being unable to receive the support to which they are legally entitled, and that they require to engage effectively in education, achieve, develop life skills, and safeguard their welfare. The negative impact of this proposal is grossly disproportionate to the gain achieved - a saving of just £1m (a tiny proportion of the overall budget).
The government also claims that parents are able to prepare and present their own cases to education tribunals. However, research has shown that parents of children who require legal assistance in relation to education matters will not always have the capacity to represent themselves. SEN appeals can be very complex and involve more than simply presenting facts to the tribunal. The Lamb Inquiry found that cases coming before the first-tier tribunal are becoming more complex, and that many parents feel unable to pursue their claim without legal support. Parents may also be unable to afford to pay for the expert evidence that is often required in these hearings.
Presenting an appeal against a school exclusion to an independent appeal panel can also be very difficult for parents, as these hearings are generally quite rigid, formal and adversarial in nature. The Administrative Justice and Tribunals Council's 2003 report on these hearings found them to be "akin to penal proceedings," making it particularly important "for parents to have access to good quality specialist advice and representation".
Admission appeals are also not straightforward, and will be too complex for many parents or young people to negotiate without access to legal advice.
The government also claims that there are alternative sources of basic help for education issues, including the Advisory Centre for Education and the charity Independent Parental Special Educational Advice. However, both organisations have reported that they are currently "swamped", and unable to act as alternatives to legal aid-funded work.
If the proposals to cut access to legal aid go ahead, many vulnerable children will be denied access to justice, as they will be unable to take action to enforce many of their rights and entitlements, including their right to education.
