Solicitors play a major role on both sides when it comes to securing places in schools for children with special needs.

For a section of the media, litigation against colleges, schools and universities has in recent years become another frontier of the so-called compensation culture. School trips are cancelled and playtimes suspended - so the stories go - because of killjoy lawyers and risk-averse local authorities.

Apparently litigation has now infiltrated higher education. According to statistics from the Office of the Independent Adjudicator for Higher Education, there has been a 25% increase in official complaints against universities.

Lady Deech, then Independent Adjudicator for Higher Education, argued in The Guardian in April that the rise in the number of complaints was due to more students challenging their degree and exam results, ‘probably because there are so many more graduates emerging on to the job market now that graduating with, say, a lower second is insufficient for success’. Barristers and solicitor firms who actively seek to represent students who have a complaint also contributed to the rise, she said.

Des Hudson, chief executive of the Law Society, took issue in the newspaper’s letters pages with the negative portrayal of lawyers, saying Deech’s claim ‘lacks evidence, insults the legal profession and belittles the genuine complaints students have’.

‘Perhaps it is a problem with the university system that is increasing complaints rather than the image Deech paints of lawyers whispering into students’ ears about the merits of taking their college to adjudication,’ he said.

Certainly, the image of ravenous claimant lawyers sits at odds with the reality of a sector of the profession that has been doubly hamstrung by the courts and changes in legal aid funding. Despite the House of Lords ‘opening the floodgates’ for educational negligence cases back in 2000, the practice area has never taken off. There is only a small but dedicated group of around 40 firms practising in this area. With a number of leading practitioners having quit the field, those left cite problems to do with funding work as a reason for downscaling practices.

So are lawyers fuelling the ‘compo culture’? ‘There is no compensation in virtually any of the work that we are doing,’ says Elaine Maxwell, founder of leading specialist practice Maxwell Gillott in Lancaster. ‘What I am seeking to do generally is enforce the obligation owed by the local authority towards a particular child and often one with a disability. Yes, I feel sorry for local education authorities because they don’t have much money, but that is not my problem. As the courts have said previously: go and cry to government.’

Her firm is one of the larger practices with nine fee-earners (it also does community care). It runs the Community Legal Advice helpline (previously known as CLS Direct) with Essex-based charity The Children’s Legal Centre. There appears to be no shortage of demand for advice – the helpline took 450 calls last month and over the course of the past year it received more than 5,000.

Maxwell says that probably 70% of the firm’s educational work relates to special educational needs (SEN). Only one in ten clients is concerned with higher education work, where the work covers breach of contract claims relating to failure to supervise a PhD, or the relatively new area of disability discrimination (the Disability Discrimination Act 1995 was only extended to education in 2002). ‘Education law is a highly complex and heavily statute-based area, with lashings of public and administrative law with which many lawyers are not usually comfortable,’ Maxwell says.

Maxwell Gillott, like most of the other major players, has almost given up on educational negligence cases following the landmark case of Pamela Phelps (see Phelps v Mayor of the London Borough of Hillingdon). She was awarded £46,650 from the London Borough of Hillingdon. Phelps had been assessed by an educational psychologist who had failed to diagnose dyslexia. She went through school without support and found it difficult to get a job. Hillingdon appealed and she was ordered to return the money, but that decision was overturned by the Law Lords in 2000.

‘We don’t do educational negligence now,’ says Chris Barnett of Levenes Solicitors. ‘The numbers that succeed are pretty small and very few have succeeded since Phelps. It is really only very clear cases – where, for example, there’s undiagnosed dyslexia – that have ever succeeded. Anything more complicated has pretty much failed.’

Michael Imperato, an educational law specialist at Russell Jones & Walker, says: ‘It is now virtually impossible to run a case on a CFA [conditional fee agreement] because you can’t get insurance for it and it is impossible to get legal aid. The value of the claim is never going to be enough to meet the Legal Services Commission’s (LSC) cost-benefit analysis.’

He says that in ‘a large number of cases’ the LSC is right insofar as the likely level of damages is unlikely to justify the costs. ‘But there are other cases where I don’t see why it is not possible for the courts to apply the principles of personal injury of loss and ongoing loss,’ he says. ‘Somebody, someday has to break the roadblock because, as a matter of law, I don’t see why they shouldn’t.’

Case for the defence

Browne Jacobson is on the other side of the fence. The firm represents more than 30 local authorities and more than 100 schools. Partner Mark Blois reports that Phelps precipitated an enormous but temporary increase in work for claimant firms. ‘I dealt with a lot of them,’ he says. ‘We have been very successful and I only ever had to settle one educational negligence claim – all the rest fell away.’ He claims that he has not seen any claim above the value of £30,000. He reports that that trend is largely history now as a result of the courts’ unwillingness to sanction bigger pay-outs.

For those reasons, Blois reckons that the disgruntled university graduates envisaged by Lady Deech, wishing to challenge their university exam results, are going to have a tough time. ‘It is going to be difficult to prove because they’re going to have to show that they have a job lined up subject to them getting a certain class of degree,’ he says. ‘There isn’t going to be legal aid and so they will have to do them on a CFA. The stakes are going to be quite high for the claimant solicitors.’

It is the SEN work that mainly preoccupies the time of specialist firms, in particular those cases that come before the Special Educational Needs and Disability Tribunal (SENDIST).

South London firm Fisher Meredith has eight lawyers, four trainees and a paralegal in its education law department. The new fixed-fee regime for legal aid work is proving a major headache for clients and their lawyers contemplating SENDIST. Angela Jackman, partner and joint head of department, points out that the firm’s tailored fixed fee was £1,096 based upon the practice’s average costs. ‘So we dropped to £296 in October when the fixed fee was announced,’ she says. Under the new regime, if total fees are more than three times the rate then the case can escape the fixed-fee model. Does the firm anticipate having to invoke the escape clause often? ‘It is inevitable,’ she replies.

She and other leading lawyers reckon a typical appeal to SENDIST could take 20 hours, so £296 seems little reward for the work. Yvonne Spencer is head of education law at Fisher Jones Greenwood in Colchester, which acts for both schools and private individuals. ‘We need a mixed model of funding because we cannot possibly survive on legal aid,’ she explains. The firm has expertise in commercial property, commercial litigation and charity law.

Do families need lawyers at SENDIST? Spencer acknowledges ‘mixed views’ but insists, in complex cases, that they do. ‘For example, if you have a child with severe learning difficulties, a placement is going to cost in the region of £75,000 to £150,000 a year,’ she says. ‘So local authorities often feel it’s worth their while to pay for a barrister to pitch up from London for the day. For a parent of a child with severe learning difficulties most of the day-to-day living is caring for the child, and the stress and strain of going through litigation is just dreadful... You can’t underestimate how hostile local authorities are towards parents when cases get to this stage.’

Imperato says it is ‘absolutely laughable’ to suggest that a lay person could handle SENDIST. ‘In the tribunal, 70% of cases either succeed in whole or in part – that means that seven out of ten special needs statements are wrong,’ he says. ‘We are there to make sure local authorities get it right, because 70% of the time they get it wrong.’

Blois has some sympathy with the claimant camp. He argues that there is ‘too much litigation and too many challenges in the education sector’ and reckons his own workload ‘shows that there are some really frivolous cases that should never have been brought’. However, he adds: ‘I recognise the other side of the coin. It isn’t appropriate for a sector such as education to have this threat of legal challenge nullified by the fact that funding is difficult to secure. No one would accept that in the medical profession, for example.’

Blois describes SENDIST work as ‘terribly complicated with lots of case law [where it is] very difficult for the lay person to represent themselves’. However, he also points out that it is ‘a crying shame’ that claimant lawyers have become involved in exclusion cases ‘because the whole independent process was set up not to need lawyers, and yet they are increasingly getting involved’.

One area that claimant lawyers say is an increasingly hot issue is school admissions. Every year, some 1.5 million children start school. In 2005/06 there were 78,670 appeals made by disappointed parents, unhappy with the schools allocated to their children. Parents are becoming increasingly aware of their rights on appeal. More than one-third of the appeals heard were decided in the parents’ favour (36.3%).

‘My caseload increased this year by 40%,’ reports Spencer. She reckons that clients are increasingly prepared to pay for legal advice. But, she adds: ‘Some parents want representation [at a hearing]. I always advise against it because it ups the ante when you turn up for a 20-minute hearing with a lawyer in tow.’

Jackman has also noticed an increase in demand for legal advice. ‘We get lots of inquiries, far more work than we can deal with and mainly from people eligible for legal aid. It’s not just moneyed, middle-class people.’

Jon Robins is a freelance journalist