Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Faulks Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Beecham]

My Lords, this amendment deals with education. It is right to say that, having consulted—although perhaps not initially—the Department for Education, the Government have amended their original proposals to bring special educational needs within scope. I very much welcome that.

However, there are significant problems in the education world that require assistance. These include school exclusions, admissions issues and bullying. In fact, at the moment there is a significant workload that potentially falls within scope. If the Government do not move their position, some 2,800 fewer clients will be given advice on educational law matters, and a small number—only 70 but for them it is important—would fail to obtain representation on such matters.

Clearly there are potentially significant issues around admissions which affect different categories of children disproportionately; for example, refugee and asylum-seeker children, for whom there is often a difficulty in obtaining places. Sometimes by definition these children arrive mid-year; they do not always arrive at convenient times for the academic year. Sometimes schools may have difficulty in admitting pupils with perhaps little educational experience or poor language skills. Equally, some of these children are more susceptible to bullying and racism than perhaps would normally be the case.

In any event, bullying is not confined to that group. It is common, unfortunately, in many schools. Some years ago, Bullying UK discovered that 87 per cent of parents sampled reported that children had been bullied. Of course, these will not all be serious matters but there will be cases where sometimes it is necessary for people to seek assistance and redress for incidents of that kind.

The Government consulted on all these matters publicly. They restricted their changes to the proposals to special educational needs. However, given that there is not a vast number of cases, where there are difficulties of this kind it seems proper that legal advice—and, if necessary, in a very small number of cases, representation —should be available. Again, we are talking about children. They have cropped up regularly this evening and in earlier debates as a group that we have to have special regard for.

Again, I hope that the Government will consider building on their welcome amendment on special educational needs to afford the possibility of advice and representation to these other categories. That would be welcome to those who suffer from bullying and would assist the education system in dealing with what can be very difficult problems. I beg to move.

[Lord Faulks]

My Lords, perhaps I might intervene briefly on this matter. I have experienced quite a number of cases involving educational law and I notice that this amendment is very widely drawn, potentially embracing all sorts of disputes.

It has to be said that the support of legal aid for educational law disputes has not been the finest hour of the LSC. In particular, I can speak from experience of three cases in the Supreme Court and a whole rash of cases alleging educational negligence, almost none of which were successful, which cost the taxpayer an enormous amount of money. Although well intentioned on the part of the claimants, these cases turned out to be expensive, unsuccessful and, quite frankly, misconceived.

I am very concerned about the width of this amendment, notwithstanding the fact that there are some areas, which I think are covered by the government amendment, where it is plainly appropriate that there should be support.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, Amendment 20 would bring back into scope all education matters not already covered by Schedule 1. We have retained legal aid for any educational case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination. We have also retained current legal aid funding for appeals on special educational needs matters and for educational judicial reviews. In practice, this amendment would retain legal aid for all education matters. The judgment we have made in prioritising funding is that SEN, discrimination and judicial review are of the highest priority and that advice on such matters as exclusions and damages claims are not.

Where parents are not satisfied with an admissions refusal, they can appeal to an independent panel. This 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. These are not usually legal arguments. 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. If parents are unhappy with the decision to permanently exclude their child, they will be able to appeal.

From September 2012, such an appeal will be to the 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 from the Advisory Centre for Education and the Children’s Legal Centre. Education negligence claims 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 on only those money claims which concern a significant breach of human rights, an abuse of a position of 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. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I hope that noble Lords will recognise that we have focused resources on education cases of the highest priority and that the noble Lord will withdraw his amendment.

The two technical government amendments in this group fulfil the promise we made in Committee concerning SEN provisions. These amendments ensure that SEN matters are fully within the scope of the Bill and, specifically, that learning difficulty assessments are captured by our provisions on scope. As we stated in Committee, the Government accept that the existing wording in paragraph 2 of Schedule 1 does not cover the provision of advice and assistance in relation to the making of learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. These amendments ensure that these services are brought within the Bill’s scope.