Special needs body opposes legal aid
The Lord Chancellor's Department has proposed extending the scope of legal aid to cover some tribunal hearings, which could allow families to fight special needs cases with the help of solicitors and barristers.
But to the consternation of some advocates and lobbyists in the field, the tribunal will fight the move because, it is understood, it believes that legal aid will make its hearings longer and more costly.
The Special Needs Tribunal was established under the 1993 Education Act to provide a quick, informal appeal system for parents dissatisfied with the local education authority.
The tribunal has made no official comment on the Lord Chancellor's proposals, contained in his Green Paper on legal aid.
But it is understood to regard itself as different from other tribunals, particularly in being less legalistic. It is under pressure to complete each case in half a day and regards its decisions as final.
But this brief process is directly counter to developments over the past seven years, which have seen parents resorting to the High Court in greater numbers to secure their children's rights.
This trend had been supported by the fact that children can obtain legal aid irrespective of their parents' income. Now, thanks to the tribunal, the rush to law appears to be slowing.
Parents and children can no longer seek judicial review (in the High Court) of local authority decisions on special needs, and must use the tribunal instead.
Moreover, challenging tribunal decisions on points of law is difficult because only parents are entitled to do so - and they will probably not get legal aid.
This was decided in a recent High Court judgment, a ruling which so incensed special needs lawyers and lobbyists that it seems likely to be challenged in the European Court.
Advocates like John Wright at the Independent Panel for Special Educational Advice argue that the tribunal is effectively preventing much-needed legal discussion of children's rights.
There is, he said, a major national debate between those arguing for individual children's rights to the best help available, and those urging pragmatic decisions in the name of sound finance. "The Government has refused to get involved by giving guidance on these issues, so it has been left to the courts," said Mr Wright.
"The role of High Court judges in the past few years has been crucial, both in terms of making the law clear and in upholding the rights of children. They have allowed important developments in how we understand a local education authority should fulfill its duty.
"If you dam the flow of cases, then you actually hold back what's been a positive development. The judges have been the friends of children with special needs."
On a more immediate level, he says, the tribunal hearings offer no way of challenging the sort of deliberate law-breaking identified by the Audit Commission and Her Majesty's Inspectorate. This involved the systematic fudging of special needs arrangements to save money.
Panels have been instructed by the tribunal chairman to consider only what is best for the child in the future, and therefore largely to disregard the rights and wrongs of the past.
Mr Wright added: "The routes to legal challenge have been closed down enormously. If it's only parents who qualify for legal aid who can challenge, then obviously that is bad for individual children."