Challenge to SEN legal barriers

The Families and Children Bill proposes reforms to adoption, family law, parental leave and education law. Key proposals regarding special educational needs (SEN) include: replacing SEN statements and Learning Difficulty Assessments (for 16- to 25-year-olds) with a single, simpler birth to 25 assessment process and education, health and care plan from 2014; providing statutory protections comparable to those currently associated with a SEN statement to up to 25 (protection currently ceases at 16); requiring local authorities to publish support services available to disabled children and young people and those with SEN, and their families; giving parents or young people with education, health and care plans the right to a personal budget for their support; and introducing mediation for disputes. Importantly, the bill also addresses the restriction that some children face in gaining access to justice.

At present, children do not have a right to appeal to the First Tier Tribunal (Special Educational Needs and Disability). This is rarely problematic as a parent can make an appeal. The term “parent” is widely defined for the purposes of such action; anyone with care of a child can bring proceedings.

However, children who reside in the care of a local authority are in a vulnerable position. A child’s foster carers may bring an appeal, but if the child is moved to a different foster placement during proceedings, the foster carers will lose standing and the action will lapse. In other cases, children may not have anyone willing to bring proceedings on their behalf.

At Coram Children’s Legal Centre we have found that these circumstances arise with surprising frequency. As a result, many vulnerable children with special educational needs are left without effective access to justice. 

For this reason, the UN Committee on the Rights of the Child recommended in its 2008 Concluding Observations that children are given the right to appeal to the tribunal. Following this recommendation, the government consulted on giving secondary school-aged children the right to appeal to the tribunal and make disability discrimination claims. Responses to the consultation overwhelmingly supported giving children this right.

The Department for Education has accepted the UN committee’s recommendation and will pilot giving children the right to appeal and to make disability discrimination claims in two or three local authorities with a view to extending the right to all children across England. This means that looked-after children, with restricted opportunity to have their cases heard at the tribunal, will not be disadvantaged. The pilot will test whether children will use the right to appeal, the best way to handle appeals, and the cost implications of this change.

Significant support
Children are likely to need significant support in bringing cases. The tribunal is designed so that parents can bring actions without legal support. However, as the law of special educational needs becomes increasingly complex and local authorities, operating under restricted budgets, defend cases more vigorously, bringing a case to the tribunal becomes a daunting and technical process. Children will need assistance preparing their cases and commissioning expert reports. The proposals for supporting children in bringing cases remain unclear.

Bearing in mind that the children bringing cases will have significant special educational needs or disabilities, the rules of the tribunal will need to be amended to provide for the appointment of a next friend, advocate, guardian or the official solicitor to provide instruction on the child’s behalf. Furthermore, the Legal Services Commission will need to provide guidance on how children will be assessed for public funding. The current restriction on funding for representation before the tribunal should also be removed so that lawyers are able to represent the child before the tribunal.