Civil Legal Aid

Lord Touhig Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Touhig]

My Lords, when my noble friend Lord Beecham opened the debate, he told us that the Government had underestimated the number of people who will be denied funding as a result of their changes to legal aid. The Legal Action Group, which discovered this error, stated that the Government had “grossly underestimated” the impact of their cuts. The error came about because the Government chose to base the impact assessment on statistics from 2008-09—more than a year out of date. The Legal Action Group’s director, Steve Hynes, described the Government as using,

“the most generous interpretation of the data it thought it could get away with”.

It is clear from these findings that the number of people seeking help with legal problems is far higher than the Government estimated that it would be. The Law Society’s chief executive, Desmond Hudson, said that it is,

“hard to dispel the suspicion that once again the MoJ has embarked on a programme of painful change, without properly understanding the impact of its proposals”.

At present, legal aid is available to the poorest parents of children with special educational needs who appeal against decisions made by their local councils about additional support for their child. That is as it should be given the fact that 82 per cent of parents win their appeals and 30 per cent of the appeals are conceded by the local authority even before the case reaches a tribunal. Yet the Government now propose to remove all legal aid where it relates to matters of special educational needs. While discrimination claims would still receive support, for many parents the only way to get the help that their child needs is through appeals to the Special Educational Needs Tribunal and support for these will be withdrawn.

The Government seek to justify its removal for three main reasons. First, they say that the education of children cannot be accorded the same level of priority as other important issues. Surely, access to a suitable and challenging education is the right of every child, and if they miss out on such an education they are disadvantaged for the rest of their lives. Disabled children already face many barriers in society, and a failure to provide them with a suitable education puts them at an even greater disadvantage. While the Government have taken some welcome steps to support families with disabled children, they threaten to undermine this by withdrawing legal aid, which many families need to ensure that their children get a decent level of education. The importance of providing an appropriate education to all children, especially those with special educational needs, is such that it should be given the same priority as other important issues.

Secondly, the Government say that they do not believe parents and carers bringing cases like the ones I have mentioned to be particularly vulnerable. But the consultation document from the Ministry of Justice recognises that disabled children are more likely to live with one or more parent who has a disability. Equally, the parents of disabled children are more likely to be in poverty or in single-parent families. These facts make nonsense of the Government’s statement that the parents bringing these cases are not likely to be particularly vulnerable. The withdrawal of legal aid in such circumstances risks taking away support from parents who are already financially disadvantaged and pushing even more families with a disabled child into poverty. Surely that renders such parents particularly vulnerable and means that they should be given the support they need rather than making them the victims of these cuts.

In addition to making the wrong decision when assessing the vulnerability of parents, the Government in their equality impact assessment failed to consider the impact of withdrawing legal aid on the children themselves. Some 60 per cent of pupils who leave school without GCSEs have special educational needs, and they are not likely to be in education, training or employment at the age of 19. Taking away legal aid from parents who are supporting these children is an absolute disgrace.

Finally, the Government believe that there are sufficient alternative sources to justify the removal of legal aid in these cases. To support the argument, they identify the parent partnership service, the Advisory Centre for Education and the Independent Parental Special Education Advice service. The advisory centre and IPSEA already have more requests than they can cope with and the parent partnership service is facing huge budget cuts by local authorities. Therefore, legal aid will be at risk.

None of the Government’s reasons for withdrawing legal aid from those with special educational needs stands up to scrutiny, and I hope they will think again. In a civilised society, this cannot be justified.