Lessons in life

Anita Chopra has not been impressed by her experience so far of the new tribunals system. A partner at specialist education outfit, Match Solicitors, she finds herself with a number of cases waiting to be registered with the new SEND tribunal; delays are rife. 'The admin at the moment is really quite unfortunate; it is not up to scratch,' she laments.

Of course teething problems are always to be expected when a well-established system gets overhauled, but it's the waste of valuable time and money that really gets Chopra. 'We recently had a problem whereby we managed to agree a statement with the local authority, and withdrew our application from the tribunal, and the client confirmed it wanted to withdraw. Then, two months later the tribunal wrote to us saying the matter had been struck out as they had not heard from us or the client. This was a waste of costs and now our time in having to demonstrate that the information, which they said they did not receive, was sent to them in time.'

While Chopra can understand the aim behind the new tribunal rules '“ which she recognises ultimately is to make it easier for parents to represent themselves '“ 'in reality I think it's difficult to say whether this is actually the case'.

Of course it does mean that she is kept busy in assisting parents through this process. 'But we are trying to collate all the evidence now, so we can reach settlements before tribunal, as this is in the best interests of the child.'

Making a difference?

So, how much of a difference will the new tribunal system actually make in resolving education disputes?

Norwich-based sole practitioner and education specialist, Nicholas Hancox, thinks that certainly in the First-tier Tribunal it won't make any difference at all. 'Because the people sitting on the panels will be much the same people sitting on the old SENDIST tribunal, the hearing will end up being pretty much the same,' he explains.

'I don't think the government had the intention of altering the SENDIST much at all, it just wanted this First-tier Tribunal and Upper Tribunal. The government thinks this will be more efficient, presumably.'

But does he? 'It won't make much difference for most people.' The exception, he says, is the appeal process. With its upper tier appeals system, explains Hancox, the new SEND tribunal has taken on many of the characteristics of the old Employment Appeals Tribunal.

'No longer having to go to the High Court will make things easier,' he says, 'as costs are less and the procedure is easier'. So does this mean he supports the overhaul? 'We will have to wait and see. It'll probably work.'

Money matters

Of course, for many people the changes to the tribunal structure won't necessarily mean it's any easier to bring a case, because there is still the public funding issue to consider.

John Ford is one of very few remaining education practitioners still doing legal aid work, and he like many others is wondering where the money is going to come from. 'Very little money is spent on legal aid compared with other things, and much of this is on crime '“ they seem unable to regulate spending on VHCCs.'

Yet he says he has not heard any noises in respect of education legal aid being cut as part of the measures the government is taking; 'they are still talking about spending money', he says dubiously.

The LSC has reduced the number of firms with a franchise to do education law on a public funded basis; at the same time Ford has seen many of his peers pack up their legal aid practice as they can't afford to work at those rates of pay.

What keeps him in business, he says, is the firm's guarantee to clients that the work will be done by a fully qualified specialist solicitor.

But access to justice, he says, 'continues to be overlooked by most people running the country, in that the most needy people are still not coming to light'. These, he says, are the ones that try to exist quietly; 'high-profile cases take a disproportionate amount of attention and resources'.

He points out the huge disparity in resources for people who are unable to fend for themselves 'as they don't have the mouthpiece or the contacts '“ the disabled, those in community care, families,children, etc'.

Turned away

And parental financial ineligibility remains a big problem. 'You've got a needy kid, the parent works part time and gets tax credits, and then you discover the parents are not eligible for free legal help '“ and this happens all the time. If you are really on the bread line you are OK, but the border-line ones '“ those who try and have a meaningful life by working part-time '“ suffer.

'The resources available to allow those people to exercise their legal rights and use the laws passed over the years for their benefit are just not there, and very few lawyers are now are able to offer a service to more than a few people.'

This is bad for everybody, says Ford, 'as the systems will fall into disuse. The public administration will continue to decline and there will be fewer means to challenge it and put it right. So it is a very short-sighted view.

'Having legal aid solicitors about is a way of putting into practice what governments decide has to be done for benefit of citizens.'

In privately funded Match Solicitors, Anita Chopra admits that 'it is becoming increasingly difficult to help people'. She says the firm does what it can, but that it's had thousands of enquires from people who have said they can't find anyone to assist them. 'The government and the LSC think the current system is working, but in reality it's not.'

Both Chopra and Hancox report getting telephone calls on a regular basis from parents seeking help with cases they cannot fund themselves and cannot get legal aid for. 'It is difficult for ordinary parents to find a firm that can take on their case,' says Hancox.

In contrast to the general exodus from education legal aid, Chopra says that her firm has been considering whether or not to start doing publicly funded work. 'We both have a legal aid background,' she says, referring to herself and the firm's co-founder, Salima Mawji.

Yet she is all too aware of the question mark over the viability of undertaking this work. 'Funding is very restricted, what with legal help and contract fees, and you kind of feel it's taking the very essence of being lawyers away, as you are constantly worrying about penny pinching with the LSC.'

Giving up

Chopra says that in the five years her firm has been set up, she has seen many firms reduce or give up their franchise as they have found the bureaucracy of the legal aid franchise too difficult. Once a stalwart of the education legal world, Teacher Stern Selby let go of its legal aid franchise some time ago. And Fisher Jones Greenwood has also closed the curtain on publicly funded education work.

But even firms that have decided to focus solely on privately funded work are not guaranteed security, particularly given the current economic situation. 'With most firms, especially those that do private work, your target audience is people with spare cash and what with the economy, people are probably thinking twice about whether they want to spend money on lawyer's fees, so there is a risk that clients will reduce as a result of that,' says Chopra.

Hancox agrees that the recession is having an impact. 'There are fewer private clients with spare cash to instruct lawyers on particular jobs.' The fact that the number of pupils in private education is dropping also reflects the situation. 'There is simply less money sloshing around in the system.'

Then there are the lawyers who do work on behalf of local authorities. A safer bet, you might think, but Hancox is one such practitioner and he says that getting education work from local authorities is getting more complicated. 'These days you have to fill in endless forms on the internet. I've had to spend a huge amount of time putting in a tender. It seems to take a lot longer than it used to.'

He explains that because the government is bringing education legal work into a central procurement organisation, and because of the tendency towards standardisation, there is an issue about how much professional indemnity you need to take. 'If you want to go for local authority work you need to get more insurance than you otherwise would need,' he says. 'They often demand £5 million minimum. Most small practices don't carry that kind of money.'

Keeping on

So if you are a small firm doing education work, it would seem there are teeth ready to bite you '“ however you hold yourself out. So why do it at all?

For John Ford there is no question what keeps him in education law. 'In my opinion it's not just about investment in education, but actually getting education to happen in a way which will give people a chance in life. Not only is the law in this field interesting but it is one of those areas where occasionally you can really see that what you've done has helped change somebody's life.'

That, he finishes by saying, is 'incredibly satisfying, and it makes up for many of the financial shortcomings'.

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