Balancing the scales

Tes Editorial

The argument for extending legal aid to tribunals, including the new ones for special educational needs (see page 7), is based on a recognition that, as with social security and employment, the relevant tribunals (where legal aid is not allowed) feature larger than the courts (where it is) in securing social justice for the poor.

The SEN tribunals were established in the forlorn hope that participants would not need legal representation. But some education authorities are deciding that, since half a million pounds or more could ride on a single case involving the placement of a child in a specialist school, it is prudent to brief counsel. Indeed, it could be argued that the public interest demands it.

If ordinary parents are to be faced with barristers, then, there are clearly some circumstances where legal aid should be available at such hearings if fairness is to be served. There may be cases where such aid is not necessary, but blanket rejection of the idea is not in the interests of the children concerned, the wider public good or, ultimately, the tribunals themselves. Those responsible for the special needs tribunals see their function as pragmatic, case-by-case arbiters in an administrative rather than a legal process. They aim to set just half a day for each hearing and rightly fear lawyers will lengthen and complicate them. But greater involvement of lawyers in some cases is essential.

The establishment of the SEN tribunals has effectively blocked parents' right to ask the courts to remedy illegal or unfair decisions by local authorities. Like it or not, then, the tribunals are part of the legislative and judicial process by which the precise meaning of the law is established and enforced. That process in the past has relied not just on individual remedies but also on test cases; exemplars to guide policy and practice, and to exert pressure for legal compliance on a much wider front.

The weakness of the tribunals in this respect is that, in order to remain low-key and undaunting, they take place in private. Their procedures and decisions, therefore, are not subject to public scrutiny. Justice may be done but it is not seen to be.

Appellants ignorant of the tribunal rules and their child's legal rights have no assurance the relevant legal and factual arguments have been advanced and tested by evenly-matched adversaries. Whether parents who lose do so unjustly or not, they are likely to believe they have done so, particularly if they have been confronted by a room full of indistinguishable professionals talking above their heads but not on their behalf.

The lack of reporting or outside involvement does nothing to deter unwarranted appeals or to encourage education authorities to be more reasonable. Instead, cash-limited authorities will be tempted to make pragmatic calculations based not on needs and legal entitlements but on the ability of parents to argue their case, with obvious results for the children who are weakest and most defenceless.

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