New changes to legal aid rules have come info force enabling foster parents and prospective adoptive parents to access non-means tested legal aid in First-tier Tribunal (Special Educational Needs and Disability (SEND)) appeals.
The Ministry of Justice tweaked legal aid rules relating to SEND tribunals following a challenge brought by the Public Law Project (PLP) on behalf of a child with disabilities whose prospective adoptive mother was refused Exceptional Case Funding (ECF) in her SEND tribunal appeal due to not satisfying the legal aid means test.
The SEND Tribunal appeal concerned Laura’s school placement along with other important elements of her education and care.
The Children and Families Act 2014 says that appeals in the SEND tribunal in respect of children must be brought by their parent or carer rather than the child themselves and while “young people” (those over compulsory school age) can bring appeals in their own name, their parent/ carer may do so on their behalf.
PLP says this led to the unfair situation where the child’s prospective adoptive mother was refused legal aid based on means, despite not having full parental responsibility for her.
Following PLP’s successful challenge alongside the Law Society, neither foster parents or prospective adoptive parents will be means assessed when applying for ECF legal aid on behalf of a looked after child.
Non-means tested legal aid is also extended to SEND tribunal appeals in respect of young people who continue to reside with a former foster parent under a staying put arrangement, where that young person lacks capacity and cannot bring the appeal themselves.
The 2023 Regulations also make provision to deal with legal aid applications made prior to the rule change and cancel legal aid “contributions” that existing applicants are still paying.
The Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2023 amend the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. They came into force on 10th February 2023.
A Law Society of England and Wales spokesperson commented:
“This is an important addition to the strategic litigation work the Law Society has been supporting to expand legal aid and ensure people can access justice.
However, increasing legal aid can only be effective if there are legal aid lawyers available to advise and represent those in need. The government must urgently commit to immediate investment to ensure solicitors can continue to do this vital work whilst the Civil Legal Aid Review takes place.”
In a similar vein, Olivia Persey, 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.”
