| SPOTLIGHT |
The Ministry of Justice has changed the law so that foster parents and approved prospective adopted parents bringing SEND appeals on behalf of a looked-after child will “not be means assessed”.
The move follows a public law challenge against the Legal Aid Agency (LAA).
The LAA had refused to grant a six-year old child, who was partly under the care of the local authority, Exceptional Case Funding for her SEND tribunal appeal.
Exceptional Case Funding (ECF), a type of legal aid, is available in cases that are “outside of scope of legal aid”, where an individual’s fundamental rights are at stake, which includes SEND Tribunal cases, according to Public Law Project.
Public Law Project (PLP) was granted permission by the High Court to challenge the agency’s refusal. The looked-after child was represented by PLP’s Emma Vincent Miller.
In a SEND tribunal, appeals are brought in the name of a parent or carer rather than the child.
Emma Vincent Miller, olicitor at the Public Law Project, argued on behalf of the child 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.
The LAA has since announced that from 10 February, means testing will no longer be required for foster parents and approved prospective adoptive parents of a ‘looked after child’.
It is also being removed for a former foster parent of a young person who:
The change applies to appeals heard by the First-tier Special Educational Needs and Disability (SEND) Tribunal against special education needs decisions of local authorities.
Emma 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.”
Oliver Persey of Garden Court Chambers, a junior barrister in the case, said: “Whilst it is great news that more children with SEN will now be able to access legal aid, finding an education solicitor in some parts of the country will be difficult for many.
“Law Society research into ‘legal aid deserts’ found that 88% of people in England and Wales do not have an education legal aid provider in their local authority. 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.”
A spokesperson for the Ministry of Justice 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.”
