Exceptional Case Funding for Special Education Tribunal Appeals

Author:
Esther Salter
Education Law Solicitor
Date:
09/07/2020

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)

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.

Our office in Lancaster deals with legal help education cases but these are almost exclusively by providing telephone or remote advice, rather than face to face advice. And unfortunately for SEND appeals, it doesn’t include representation at the final hearing. 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. 

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 witness expenses 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. 

Applying for Exceptional Case Funding

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

But, in February 2020, the Civil Legal Aid Agency granted its first Exceptional Case Funding to a SEND appeal being dealt with by me. The funding was initially to pay for representation at the hearing only, but I managed to get the funding extended to cover expert fees to attend the hearing as well.

This was so important for my 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.

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 my client came to nearly £4,000, so you can see why Exceptional Case Funding is so important.

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).

What Next for SEND Tribunals and Exceptional Case Funding?

The message is clear. 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.

I am about to make my next application. Let’s wait and see if the tide is truly turning.

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