Legal Update: In a Nutshell - Changes to legal aid: education law

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force this month. The act brings in significant changes to legal aid funding, and will mean that many people formerly able to access legal aid will now miss out. In the next three issues, we examine the changes to legal aid funding in areas that will have a significant impact on children and young people.

How has funding for education cases changed?
Formerly, legal aid was granted to people who satisfied a means test for legal advice and assistance on all education law matters, including special educational needs, exclusions, admissions, educational negligence cases and bullying. Funding was not available for representation at tribunal hearings, but it was available for legal advice and for assistance in preparing for hearings.

From 1 April, parents will have access to legal aid funding only for special educational needs cases, judicial review and breaches of the Equality Act 2010. All other issues, such as exclusions, admissions and other educational law matters, will be “out of scope”, meaning parents will be unable to have legal advice and assistance on these issues publicly funded. For these parents, the options will be to pay privately for legal help and representation or secure assistance from a charity, if this is possible. Parents, children and young people will also be able to call legal advice telephone lines, such as the Child Law Advice Line. 

What type of legal assistance is available for special educational needs cases?
Provided they satisfy a means and merit test, parents will be able to access legal aid for matters arising under Part 4 of the Education Act 1996 (which sets out the law on special educational needs) and for assessments relating to learning difficulties under s.139 and 140 of the Learning and Skills Act 2000. Legal aid will be available for advice on the law and how it applies; advice and assistance in preparing for legal proceedings; advice and assistance on settling and otherwise resolving disputes; and advice and assistance in the enforcement of legal decisions, including court orders. Legal aid is available for the provision of representation and mediation, but this does not include representation at the first-tier tribunal (special educational needs and disability). However, legal aid is available for representation in cases before the upper tribunal (which hears appeals from the first-tier tribunal).

Is there any way parents or children can get legal aid for other education cases?
Funding will generally not be available for education matters, except for special educational needs cases, judicial review and breach of any equality legislation. However, the act provides for exceptional legal aid funding where failure to provide legal aid will result in a breach of a person’s human rights under the Human Rights Act 1998 or breach of an “enforceable EU right”. Decisions on funding for “exceptional cases” will be made on a case-by-case basis, in line with guidance recently issued by the Lord Chancellor.

For free advice on education law issues, call Child Law Advice Line on 0808 802 0008