The Ministry of Justice has widened the scope of legal aid to cover looked-after children with special educational needs after public law campaigners – with the Law Society’s support – helped a vulnerable child overcome a hurdle in challenging the Legal Aid Agency.

The Legal Aid Agency had refused to grant the child of infant school age, who was partly under the care of the local authority, legal aid for her special educational needs and disability (SEND) tribunal appeal on means grounds, stating that the finances of her prospective adoptive parents should be assessed.

In the SEND tribunal, appeals are brought in the name of a parent or carer rather than the child. The child argued that, for legal aid purposes, the prospective adopter’s role should be categorised as akin to that of a litigation friend - which would mean their means are not relevant.

Public Law Project was granted permission by the High Court to challenge the agency’s refusal – although, as PLP explained to the Gazette at the time, getting to the High Court was not easy.

Today, PLP announced that the Ministry of Justice has changed the law so that, from today, foster parents and approved prospective adopted parents bringing SEND appeals on behalf of a looked-after child will not be means assessed. 

The child was represented by PLP’s Emma Vincent Miller, with counsel Amanda Weston KC, Oliver Persey, and Isaac Ricca-Richardson of Garden Court Chambers. The child is represented by Esther Salter of Simpson Millar solicitors in the SEND Tribunal matter.

PLP said the case was only possible with the support of the Law Society, which provided indemnity against adverse costs.

Vincent Miller said: ‘Children with special educational needs sometimes need to challenge decisions that relate to how their needs are met by their local authority and school. Such appeals are heard in the SEND Tribunal, where legal aid can only be accessed via the Exceptional Case Funding scheme.

‘These new regulations mean that the foster carers or prospective adoptive parents of children will no longer need to be means tested to access that legal aid. Unfortunately, there remain significant access to justice issues. Many parents and carers of children who do not fall into these categories will not satisfy the strict legal aid means rules but will still be unable to afford to pay for a lawyer privately.’

Persey welcomed the news that more children with special educational needs will be able to access legal aid. However, finding an education solicitor in some parts of the country remains difficult.

‘A lack of education solicitors means most of the country will, in practice, struggle to see a lawyer. This shortage must be addressed by the Ministry of Justice to ensure access to justice for disabled children and their families,’ Persey said.

A spokesperson for the MoJ said: ‘Children with special education needs deserve the right support which is why we’ve made it easier for foster carers and prospective adoptive parents to access legal aid. The Legal Aid Agency continually monitors the market to ensure services are available nationwide and our comprehensive review of the civil legal aid system will help deliver sustainable support well into the future.’

A Law Society spokesperson said: 'This is an important addition to the strategic litigation work the Law Society has been supporting to expand legal aid and ensure people can access justice.

'However, increasing legal aid can only be effective if there are legal aid lawyers available to advise and represent those in need. The government must urgently commit to immediate investment to ensure solicitors can continue to do this vital work whilst the Civil Legal Aid Review takes place.'

 

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