Exceptional Case Funding for Special Education Tribunal Appeals

Posted on: 4 mins read
Last updated:
Sarah Woosey Profile Picture
Sarah Woosey

Interim Head of Education Law

Share Article:

What is Exceptional Case Funding?

When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was bought in, it removed many areas of law from the scope of Legal Aid.

Concerns were raised in the LASPO consultation process that there would be a lack of access to justice as a result of the legislation. In response to these concerns, the UK Government included provision for Exceptional Case Funding in section 10.

Exceptional Case Funding (ECF) is funding that can be made available in cases outside of the scope of Legal Aid. These cases would have to show that without Exceptional Case Funding there would be a breach, or the risk of a breach, of:

  • An individual’s rights under the European Convention on Human Rights (ECHR), or
  • Their rights to Legal Aid under EU law, principally under the Charter of Fundamental Rights of the European Union (the Charter)
TrustpilotStarsWe're ratedExcellent

Exceptional Case Funding for SEND Tribunal Appeals

Legal Aid for First Tier Tribunal Special Educational Needs and Disability (SEND) appeals is only available through the telephone gateway. This is known as ‘legal help’ and only covers the preparation of a SEND appeal up until the final hearing.

What to Expect at a SEND Tribunal Hearing

Hearings at the SEND Tribunal will look different for everyone, depending on:

  • Which section of your child’s Education, Health and Care Plan (EHCP) you’re appealing
  • If you’re attending the hearing with representation or witnesses
  • If you’re attending an in person or virtual hearing

Other factors might also affect how the hearing goes, but our Education Lawyers can tailor their expert advice to you and your family. We can also represent you at the hearing if you'd like us but legal aid is rarely available to cover this cost.   

By contrast, Upper Tribunal appeals are eligible to apply for Legal Aid to fund legal representation as long as they meet the means and merits tests.

As a result, it’s normal that the parent or young person bringing a SEND appeal is forced to represent themselves at the final hearing, unless they can privately pay a Solicitor or Barrister. And most of the well-known SEND charities are overwhelmed with requests for representation at SEND appeal final hearings. 

In some cases, parents are being forced to go up against a Barrister acting for the Local authority, with no legal representation. This is incredibly intimidating in an already stressful and emotional appeal situation. What makes the situation even worse is that the cost of professional witnesses  are not covered by legal help either. This puts a parent at a very clear and obvious disadvantage at the final SEND appeal hearing.

One way to get representation and to level the playing field for the parent at a final SEND appeal hearing would be to get Exceptional Case Funding. 

Case study: Applying for Exceptional Case Funding

Until 2020, all 5  previous Exceptional Case Funding applications made for final SEND appeal hearings since 2013, were refused. .

In February 2020, the  Legal Aid Agency granted its first Exceptional Case Funding to a SEND appeal being dealt with by one of our Education Law Solicitors. The funding was initially to pay for representation at the hearing only, but we managed to get the funding extended to cover expert fees to attend the hearing as well – which of course, is an important mark for parents dealing with issues like this.

This was a landmark moment for our client, because the appeal was a very complicated National Trial appeal with both health and social care recommendations being sought. The child was a looked after child who was in the process of being adopted, which made the case extremely sensitive for all involved.

The prospective adoptive parents would have struggled to deal with the legal complexities of the appeal, let alone finance the legal representation for a 2-day hearing, plus the £2,000 cost of the experts attending the hearing.

The total saving for our client came to nearly £4,000, so you can see why Exceptional Case Funding is such an important milestone.

In May 2020, Coram CLC announced that another Exceptional Case Funding application had been successful. Both applications had support from Ollie Persey of the Public Law Project (PLP).

Criteria for Exceptional Case Funding

If your case is not covered by Legal Aid, you may still be able to apply to the Legal Aid Agency for Exceptional Case Funding.

You must be able to demonstrate the following in order to be accepted:

  • Legal aid is not ordinarily available for you
  • You have a strong case
  • You are financially eligible for Legal Aid
  • Without Legal Aid it would be impossible to see your case to fruition. Or the proceedings would result in an unfair bias.

What Next for SEND Tribunals and Exceptional Case Funding?

As you can see, there are more and more cases getting passed through and accepted. Carefully drafted applications are getting through and being approved and it’s worth applying for people who meet the Exceptional Case Funding criteria. It goes without saying that with paid legal representation and experts hearing fees paid for, the prospects for a successful outcome improve dramatically.

Our Education Law Solicitors are experienced in assisting parents secure provision for children with special educational needs.  We represent parents and their children, as opposed to institutions. Call us on 0808 239 9764 to see how we can help assist in your child’s future.


UK Government. (2012). Children and Families Act 2014. [Online] Available at: https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted

UK Government. (2012). Children and Families Act 2014, Section 10. [Online] Available at: https://www.legislation.gov.uk/ukpga/2012/10/section/10/enacted

European Court of Human Rights (ECHR). (1950). Convention for the Protection of Human Rights and Fundamental Freedoms. [Online] Available at: https://www.echr.coe.int/documents/d/echr/convention_ENG

UK Government. (n.d.). First-tier Tribunal (Special Educational Needs and Disability). [Online] Available at: https://www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability

Simpson Millar LLP. (n.d.). What happens at a SEND tribunal? [Online] Available at: https://www.simpsonmillar.co.uk/education-law-solicitors/what-happens-at-a-send-tribunal/

Sarah Woosey Profile Picture

Sarah Woosey

Interim Head of Education Law

Areas of Expertise:
Education Law

Sarah re-joined Simpson Millar in 2018 having previously trained at the firm before spending a number of years working for a different national firm. She has a number of years’ experience in a range of Education Law and Social Care issues and has focused particularly on getting suitable education and/or services for children and young adults with a wide range of Special Educational Needs and/or disabilities.

Contact our Leading Education Law Team for Help Today

This data will only be used by Simpson Millar in accordance with our Privacy Policy for processing your query and for no other purpose