Legal aid for educational law matters

This page provides information on getting publicly funded legal assistance for educational law matters such as discrimination, special educational needs or judicial review. It explains what legal aid is, when it is available and the type of help it covers.

What is legal aid?

Legal aid is the use of public funds to help to pay for legal advice and court or tribunal representation. The Legal Aid Agency is in charge of providing legal aid in England and Wales. The Legal Aid Sentencing and Punishment of Offenders Act 2012 governs what areas legal aid is available in from 1 April 2013.

There are usually 3 considerations for legal aid:

1. Category – the matter is a type that can be funded by legal aid;
2. Means Test – an assessment of  financial circumstances
3. Merits Test – the likelihood of success, the reasonableness of the costs and whether a reasonable person would use their own money to pay for the case.

What types of legal aid are there?

Legal aid will pay for legal assistance from solicitors. There are different types of legal aid including:

• Legal Help – this is the first level of publicly funded assistance and allows a solicitors firm to advise and assist with a case. It does not fund the costs of representation at court.
• Legal Representation – this is a higher level of funding and allows a solicitors firm to prepare a case and representation in court or arrange for a barrister to provide representation in court.

What educational law matters can I get legal aid for?

Legal aid is available for the following educational law issues:

Special Educational Needs and Education, Health and Care Plans (EHCPs)

Legal aid is available if a person wishes to appeal to the First-Tier Tribunal (SEND) against the decision of the local authority for example:

• the local authority refuses to conduct an EHC needs assessment the child;
• the local authority refuses to issue and EHCP;
• the parent unhappy with the contents of the child’s EHCP .

The level of funding available for these cases is 'Legal Help' and therefore a solicitors firm cannot represent a person before the Tribunal. However, solicitors can help prepare and run the appeal and also seek independent expert advice. Legal aid may also be available to challenge a decision of the First-Tier Tribunal to the Upper Tribunal.

Discrimination 

A person may be able to receive legal aid if they believe that the child has been a victim of discrimination from their school, college or education provider. This can be on the basis of their disability, race, religion or belief, sex, sexual orientation, gender reassignment or pregnancy.

Judicial review 

Legal aid can be available to challenge the decision of a school or education provider, the local authority or a review/appeal panel by judicial review. Judicial review is a way of challenging a public body’s decision if this is unlawful, unreasonable, perverse or has procedural issues.

What is legal aid not available for?

• Decisions from a school, education provider or local authority to exclude or not admit a child to a school or college. If a child has been excluded or not admitted for a discriminatory reason then this could fall within legal aid.
• General complaints to schools.
• If a parent is being fined or prosecuted by the local education authority for a child’s non-attendance at school, this will not fall within the remit of civil legal aid but the parent should consult a criminal solicitor in this regard.
• Claims for educational negligence. The parent should consult a civil litigation solicitor about this.

Financial means

In order to be eligible for legal aid, a person's financial circumstances must be assessed and fall within the limits set by the Legal Aid Agency. All educational law cases will be means-tested. The person applying for legal aid will be required to give information about their income, benefits, savings, property and shares and those of their partner.

To calculate whether a person qualifies on financial grounds for legal advice, there is an online calculator.

How does an application for legal aid work?

A person wishing to obtain legal aid must contact Civil Legal Advice to be assessed for legal aid for educational matters. If they are believed to be eligible for legal aid, they will be allocated to a specialist education advisor.

The specialist will then carry out a full assessment of their eligibility for legal aid. If the case can be funded by legal aid, the specialist will take further information and, if necessary, send documentation to confirm the financial eligibility. If the specialist, after assessing the documentation, is satisfied that the person is eligible for legal aid, they can be assisted under the 'Legal Help' scheme with their case. The specialist will advise on the matters that they can assist with and any limitation of the scheme.