Legal aid for educational law matters

Introduction

This page provides useful information for getting publicly funded legal assistance for educational law matters such as discrimination, special educational needs or judicial review. It explains what legal aid is, when it is available and the type of help it covers.

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Financial means

In order to be eligible for legal aid, your financial circumstances must be assessed and fall within the limits set by the Legal Aid Agency. All educational law cases will be means-tested. You will be required to give information about your income, benefits, savings, property and shares and those of your partner.

To calculate whether you qualify on financial grounds for legal advice, there is an online Local Aid calculator (GOV.UK).

Asking for an independent school or college

As parents you have a right to request the Local Authority (LA) name a provision that is listed in the Children and Families Act 2014 (CAFA), Section 38(3), however, this does not mean that you cannot ask for or argue for a place at an independent setting which is not on this list:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

Children and Families Act 2014, Section 38(3)

Appealing for Independent

If you want to make representations for an independent setting at an appeal, the LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 of the Education Act 1996):

9 Pupils to be educated in accordance with parents' wishes

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

If a young person is requesting an independent school or college, the LA should also consider this as part of their duty to consider the young person's views, wishes and feelings:

19 Local authority functions: supporting and involving children and young people

In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular—

(a) the views, wishes and feelings of the child and his or her parent, or the young person;

section 19, CAFA 2014

Summary: when a parent or young person requests a section 38(3) school or college, the LA must comply with the request unless the limited exceptions outlined in CAFA 39(4) apply. If the LA refuses to name the parent or young person's choice, the onus is on the LA to prove why it is not possible:

39 Finalising EHC plans: request for particular school or other institution

(4) This subsection applies where—

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

CAFA 39(4)

However, when a parent or young person asks for an independent setting as part of their 'representations' on the draft EHCP, the onus is on you to prove that none of the schools that the LA are offering can meet the child or young person's needs, or that the cost of the placement will not constitute unreasonable public expenditure.

Public expenditure includes all the costs to the 'public purse' of the placement not just those incurred by the LA education budget, for example social care costs, health costs and any other costs incurred by any public body.

If you cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent provision proposed is an excellent school and/or is better suited to your child's needs than the school the LA wants to name in Section I of the EHCP. The LA are not bound to offer a child with SEND 'the best' provision to meet their needs – only what is necessary to meet their needs.

In practice, the most important point to prove is not that the independent setting is better than the LA's proposed school or college, but that the school or college offered by the LA cannot meet your child's needs.

When requesting an independent setting, you will generally need evidence from a professional as to why the independent setting is the only school or college which can meet your child's needs. There must also be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

The courts have considered situations in which an independent setting should be named in an EHCP and given examples of when a setting would be considered an unreasonable public expenditure.

It is always worth checking whether the independent setting is in fact a section 41 school or a non-maintained special school (NMSS), if it is, it comes within the list in section 38(3), and so then the burden shifts to the LA to show that it is not the appropriate school to name in the EHCP.

38 Preparation of EHC plans: draft plan

(3) A school or other institution is within this subsection if it is—

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

Case Law

Courts have considered situations in which an independent setting should be named in an EHCP, and given examples of when a setting would be considered an unreasonable public expenditure:

Crane v Lancashire County Council [1997] ELR 377 (IPSEA.ORG.UK): An LA must first establish whether the parents' choice of placement is more expensive than that offered by the authority. If it is, the LA must make the decision as to whether the additional expenditure involved in meeting the parent's preference is justified.

Essex CC v the SEND Tribunal [2006] EWHC 1105 (Admin) (IPSEA.ORG.UK): A parent or young person's preference can only be displaced on the grounds of being 'incompatible with the efficient use of resources' where the extra cost is significant or disproportionate. A difference of between £2000-£4000 was not found to be 'incompatible'.

Further information and guidance

Further information and guidance for parents/carers looking for support with tribunal/dispute can be found on the Council for disabled children (PDF) website.

Jargon buster

Term	Meaning
Advocate	Someone who knows the young person, who understands what they think about the issues in the appeal and so can speak on the young person's behalf. They can be a parent, family member, friend or a paid advocate. They are not someone who can give advice on the issues in the appeal.
Appeal	To challenge a decision made by the Local Authority about a child or young person's special educational needs.
Appellant	The person who is making an appeal.
Case management	An opportunity for the SEND Tribunal to consider any preliminary issues which need to be sorted out before the hearing can be held. For example, whether further assessments need to be carried out, or where one party wants to postpone the hearing and the other does not. It may also be an opportunity to narrow down the issues in dispute.
Concede	When the Local Authority surrender's and agrees to the appeal, which will in turn bring the appeal to an end.
Consent order	A legal document which provides information about an agreement mutually reached by the people involved in a legal case.
Deposals	Reaching a solution on an appeal: either a decision or a consent order or a withdrawal.
Direct	When a Judge instructs a Local Authority or School to carry out an action.
Evidence	Both parents and the Local Authority will need to submit evidence to the Tribunal in order to support their side of the appeal. Parent's evidence includes: Letters, emails, written submissions, statements from witnesses, reports or opinion, examples of the child's work, school or college prospectus, school SEN information report, OFSTED report and details of cost of educational placement (if applicable). Local Authority's evidence includes: Letters, emails, policies, written records, information from the school file, other witness statements (if produced), school or college prospectus, school SEN information report, OFSTED report and details of cost of educational placement (if applicable).
First tier (SENDIST) tribunal	An independent national tribunal which hears parents' and young people's appeals against LA decisions about the special educational needs of children and young people.
Kinly CVP	Cloud Video Rooms is the software that is used for the Video Hearing Appeals. The smartphone app is Pexip Infinity Connect.
McKenzie friend	Someone who accompanies you to court to help you as a Litigant in Person, those who are unrepresented by a solicitor or engage a barrister. The McKenzie friend is able to sit with you in the court and offer advice and support as well as taking notes to help you.
Opposed	When the LA do not agree with your appeal. If the Local Authority opposes the appeal, its response must say: why it opposes the appeal the name and profession of its representative its address for sending documents to a summary of the facts about the local authority's decision why the decision was made (if this is not in the decision itself) the child's views (or the reason why the local authority has not got them).
Order	An instruction by or command of a court.
Position statement	A short statement that sets out your position for a court hearing. They are a helpful way of getting your points across to the Judge and the other party in a clear and concise manner.
Representative	Someone who will give advice on the issues in the appeal, prepare the paperwork and represent the person making an appeal to the Tribunal. They can also be an advocate. They could be a volunteer from a charity, a paid representative, a solicitor or barrister. Most appeals to the Tribunal are made without a Representative. The Tribunal will support both parties through the process of making an appeal to ensure that it is decided fairly and justly.
Respondent	Someone who answers to a case in court.
Response	The respondents answer to a case in court.
Stayed Appeal or Stay of proceedings	A ruling by the Judge to halt further legal process in an appeal. The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered.
Striking out (case)	A case that is dismissed by the court and cannot be pursued any further. The Tribunal will strike out a case if: there are no reasonable grounds for bringing or defending a claim; the case is an abuse of the court's process or is likely to obstruct the just disposal of the proceedings; or there has been a failure to comply with a rule, practice direction or court order.
TCMH (Telephone Case Management Hearing	The purpose of a TCMH is to seek and gain clarity and direction from the Judge when things have become stuck or very confused. This is in no way a final hearing.
Unopposed appeals	This is when the LA does not oppose your appeal. In this case the appeal is determined as in favour of the appellant. In response to the appeal the LA shall: carry out an EHC needs assessment, review or reassessment issue the amended EHCP (contents) issue the amended EHCP (school or other institution) arrange to make an EHCP
Vacate	To vacate a court order or judgment means to cancel it or render it null and void.
Withdraw	When the appellant decides they no long wish to appeal they can withdraw their appeal, although this must be done no later than 5 days prior to the Tribunal date.
Witness	A person who is asked to attend an appeal to give relevant information. Witnesses are not perceived to be for one party or the other; both parties and the Tribunal can ask them questions. They will not be put on the spot, but instead will be asked for information which helps everyone to gain a clearer picture of the situation. If you have listed witnesses on your Attendance Form you must send them the Bundle when it arrives and the joining instructions.