Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clement-Jones Excerpts

Wednesday 18th January 2012 Lords Chamber

Moved by

[Lord Clement-Jones]

36: Schedule 1, page 116, line 4, at end insert “and under section 140 of the Learning and Skills Act 2000 (assessments relating to learning difficulties)”

[Lord Clement-Jones]

My Lords, from the outset I should stress that this amendment is strongly supported by the Special Educational Consortium of special needs disability charities. The consortium and I believe that access to a suitable and challenging education is a right for all children, and that parents need to be able to enforce a legal obligation when they are let down by the system. When parents do not have the financial resources to bring an appeal on their own, they should be supported to do so in the interests of justice.

The Government initially consulted on removing legal aid for all appeals against local authority decisions on the provision for children with special educational needs. I welcome the Government’s subsequent decision to retain special educational needs appeals for children of school age within the scope of legal aid. The Government clearly recognise the importance of these children’s entitlement to an appropriate and challenging education. Nevertheless, the Bill as currently drafted will mean that young people with special educational needs who are aged between 16 and 25 will no longer be eligible for legal aid.

The purpose of the amendment is to ensure that young people aged between 16 and 25 with special educational needs continue to be eligible for legal aid when appealing against decisions made about special educational provision. Removing access to legal aid for young people aged 16 to 25 with special educational needs, as the Bill currently does, is inconsistent with the Government’s position on the importance of the rights of young people with SEN and, in particular, with the aims of the SEN and disability Green Paper, Support and Aspiration, of March last year. I very much welcomed the Green Paper, which sought to develop a streamlined system for children from birth to the age of 25. I hope that this is an oversight rather than a deliberate move to exclude these young people with SEN from the scope of legal aid. Surely there is no justification for cutting this off at the age where young people might be transitioning from one educational institution to another, and when some young people with SEN continue to face barriers to getting the support that they need.

For young people with SEN and their families, the transition to adulthood can be a particularly difficult time as support from children’s services falls away and is often not replaced by support from adult services. As the Green Paper recognises, many young people who are disabled or who have SEN can face additional challenges during their teenage years. It states:

“Too often the opportunities and support available to disabled young people and young people with SEN fall short of what they need to make a successful transition to adult life”.

Those words come directly from the Green Paper.

I welcome the Government’s plans to extend support for young people with SEN up to the age of 25 through the proposed education, health and care plans in order to improve the support that young people receive during this difficult transition period. Cutting legal aid for this age group is inconsistent with the rest of government policy in this area. Therefore, I urge Ministers to accept this amendment to ensure that all young people with SEN remain, up to the age of 25, within the scope of legal aid. I beg to move.

[Lord Howarth of Newport]

My Lords, special educational needs is a particularly tortuous and difficult area of administration and, equally, for negotiation and representation. Young people with special educational needs are almost by definition ill equipped to represent themselves and to handle these difficult challenges on their own behalf. The system, at least in so far as children with special educational needs are concerned, provides very fully developed support, but there is something of a cliff edge beyond the period during which children are eligible for statements. While, admirably, the Government are seeking to improve the structure and quality of provision for special educational needs later on, it seems particularly unfortunate if, in this important area, they are to take away help for the very people they are otherwise seeking to improve their support for. Therefore, I hope that the Minister will find it possible to look sympathetically on the amendment in the name of the noble Lord, Lord Thomas, which was so well moved by the noble Lord, Lord Clement-Jones.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I welcome this debate and in particular thank my noble friend Lord Clement-Jones for introducing an important amendment that would seek to make a change to paragraph 2 of Part 1 of Schedule 1 to the Bill. This is the paragraph that brings special educational needs within the scope of the new scheme.

The Government, in response to our consultation on this package of reforms, recognised the compelling arguments that stakeholders made concerning special educational needs cases. As a result, we altered our position on special educational needs, which has been recognised in the contributions to the debate. The Bill included provision for these cases when it was published.

Our intention is to cover all matters that can legitimately be classed as special educational needs issues. It has been brought to our attention by stakeholders, particularly the Special Educational Consortium, that the current wording in paragraph 2 does not cover all SEN matters—in particular, learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. My noble friend and others made a very compelling case on that point. Although I have no reason to doubt the drafting skills of my noble friends, I hope that they will understand if I do not accept their amendment at this time. The focus on Section 140 of the 2000 Act would include Wales only. That might be because of the hand of my noble friend Lord Thomas of Gresford—that is no criticism—but I can assure the Committee that my officials are working closely with the Department for Education to ensure that the issue that noble Lords have raised is addressed and that the contents of paragraph 2 encompass all SEN matters. I assure noble Lords that the Government in principle accept the point and that we will table a technical amendment on Report to ensure that SEN matters are fully within the Bill’s scope.

The noble Lord, Lord Stevenson of Balmacara, spoke to Amendment 82ZA, which, as he indicated, would bring into scope all education matters not already covered by Schedule 1. As he said, we have retained legal aid for any education case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination, and current legal aid funding for appeals on special educational needs matters, as we have just discussed. We have also retained legal aid for education judicial reviews.

In practice, the amendment would retain legal aid for all education matters, including advice on admissions and exclusion decisions and for educational negligence damage claims, and would mean lost savings of approximately £1 million. The judgment that we have had to make has been to prioritise funding on the most important education cases, which are special educational needs, discrimination and judicial review. We believe that those are of the highest priority, and that advice on, for example, admissions, exclusions and damages claims are not. Of course, those are not unimportant, but where parents are not satisfied with an admissions refusal they can appeal to an independent panel. That requires them to set out in writing why they disagree with the admissions decision, and why they think that the admissions arrangements have not been followed correctly. Those are not usually legal arguments, and the local authority choice adviser can assist parents and attend the appeal hearing with them.

Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors, setting out their reasons for challenging the exclusion. Again, if they are unhappy with the decision permanently to exclude their child, they can appeal—currently to an independent appeal panel, but from September this year to an independent review panel. The Department for Education will fund the Children’s Legal Centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line.

Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination, and legal aid is being retained for advice and assistance in such cases. Advice is also available on admission and exclusion matters, although I recognise that the organisations involved, such as the Advisory Centre for Education and the Children’s Legal Centre, face the same difficulties as others in the current financial climate.

The other tier or category is education negligence claims, which have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid only on money claims that concern a significant breach of human rights or abuse of position or power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings and will be removed from scope. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement.

I have heard my noble friend Lord McNally say from this Dispatch Box on a number of occasions that very difficult tough choices have had to be made on these issues and that there has had to be prioritisation. We believe that we have focused resources on education cases of the highest priority. I hope that the House will recognise that, and I urge my noble friend to withdraw his amendment.

[Lord Clement-Jones]

My Lords, I propose simply to respond on Amendment 36, so if those on the opposition Front Bench wish to respond on Amendment 82ZA, I shall briefly pause. I see that they do not.

First, I should have declared an interest as the president of Ambitious about Autism, the education and special needs charity for autistic children. I know that both it and the Special Educational Consortium will be delighted by the Minister's response. I thank the noble Lord, Lord Howarth, and the noble Baroness, Lady Browning, for their contributions. The noble Lord, Lord Howarth, used a very felicitous phrase, “something of a cliff edge”, about the 16-to-25 period. Of course, the experience of the noble Baroness, Lady Browning, in this area is enormous, and I particularly welcome her contribution.

I very much welcome the Minister’s response and the fact that he has recognised the compelling arguments that have been made to him and to the Department for Education not only for the phase up to 16 but for the 16 to 25 year-old phase. I recognise that the amendment might not be fully technically correct but it might cover other sections—Section 139A is a possibility—that may need to be covered in the drafting.

I think that many noble Lords around the Committee are hoping that this is but the first swallow of summer as we progress through the Bill, but I am very content with the response today and beg leave to withdraw the amendment.

Amendment 36 withdrawn.