Should lawyers be allowed at SEND Tribunals - a view from a lawyer for parents
Published: Tuesday 14th June 2016
By Kate Harvey, Solicitor and Head of Education Law, Coram Children’s Legal Centre:
"Following on from the Twitter events of this weekend, this question has been posed by Special Needs Jungle in their post ‘Why an unfortunate series of tweets must be a SEND game-changer’. As a lawyer who assists and represents parents at SEND Tribunals, I am concerned that the actions of one lawyer must not call into question the need for parties to have legal representation in SEND appeals.
Coram Children’s Legal Centre is a children’s charity whose Legal Practice represents parents, carers, young people and children in areas of education, family, community care, immigration and asylum and public law cases. The majority of our work is funded through legal aid. We are one of only two specialist help providers in England of legal aid funded education law advice and assistance. As the Head of the Education Law, my team and I act for large numbers of parents and young people who are appealing to the Tribunal.
Whilst it will be a matter for the regulatory bodies to investigate if complaints are made and it would not be appropriate for me to comment about the Twitter events, I am deeply concerned that any firm that represents both LAs and parents could so publically ridicule parents who have children with SEN and seek support for their children. In so doing, they diminish all of us and undermine the vital work that is done to secure entitlements for children who need them.
The legal framework surrounding SEN is becoming evermore complex and parents and young people often need support to navigate the system. Whilst the Tribunal is set up to allow parents and young people to represent themselves and many do, in some cases, the support of a lawyer is essential to help them tackle legal arguments and to put their case to the tribunal for their desired outcome.
Making an application to court and running a legal case is stressful for any litigant, but this is even more so when the application relates to the SEN of the litigant’s child. It can be helpful for parents to have the support of an independent, specialist third party who can act for them, liaise with the LA (with which parents may have a strained relationship) and advise of the positives and areas of weakness within case.
In my experience as Head of Education Law, the parent and their lawyer work together to try and achieve the best for the child and this is a vital safeguard to their educational rights as it becomes more common for LAs to seek advice and representation from solicitors (whether in house or externally appointed) in SEN matters. Whilst there are always exceptions, my experience of having a lawyer acting for the LA has been positive: the child or young person remains the focus of the case and with both parties acting with this in mind. Matters can sometimes be resolved quickly, with the child or young person getting the support or placement they require.
In most cases, an adversarial approach is not taken and both sides seek to resolve the case promptly for the benefit of the child. This is always my aim when taking on a case - to reach a settlement which will meet the child’s SEN and without the need for an appeal or court action, which inevitably leads to delay and risks leaving the child in limbo whilst the litigation process grinds on.
If matters can be resolved without the need for a court process – so much the better. Solicitors acting for LAs can often help the resolution process by offering the LA robust legal advice. This can encourage an LA to concede or adjust/soften its position as the LA reviews matters with the benefit of a lawyer’s perspective about what is likely (or not) to find favour with the tribunal.
When I achieve a good outcome for a parent or young person it is extremely rewarding, as I know my actions have helped change that child’s life for the better. Many solicitors acting for individuals will publicise details of successful cases. The purpose of such publicity should be, especially with SEN cases, to inform the wider public who are in a similar position or struggling with a similar matter, of how the law is to be interpreted or how to get advice. It should never be disparaging of the use of due process by any party.
The process of resolving disputes between parents and LAs can be long and frustrating. We need to remember that at the heart of this is always a child whose parent believes needs support. Do not typecast all lawyers as a result of the ill-judged triumphalism of one. Most of us working in the SEN field do so to make a difference to children and young people’s lives."