Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I welcome this debate and in particular thank my noble friend Lord Clement-Jones for introducing an important amendment that would seek to make a change to paragraph 2 of Part 1 of Schedule 1 to the Bill. This is the paragraph that brings special educational needs within the scope of the new scheme. The Government, in response to our consultation on this package of reforms, recognised the compelling arguments that stakeholders made concerning special educational needs cases. As a result, we altered our position on special educational needs, which has been recognised in the contributions to the debate. The Bill included provision for these cases when it was published. Our intention is to cover all matters that can legitimately be classed as special educational needs issues. It has been brought to our attention by stakeholders, particularly the Special Educational Consortium, that the current wording in paragraph 2 does not cover all SEN matters—in particular, learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. My noble friend and others made a very compelling case on that point. Although I have no reason to doubt the drafting skills of my noble friends, I hope that they will understand if I do not accept their amendment at this time. The focus on Section 140 of the 2000 Act would include Wales only. That might be because of the hand of my noble friend Lord Thomas of Gresford—that is no criticism—but I can assure the Committee that my officials are working closely with the Department for Education to ensure that the issue that noble Lords have raised is addressed and that the contents of paragraph 2 encompass all SEN matters. I assure noble Lords that the Government in principle accept the point and that we will table a technical amendment on Report to ensure that SEN matters are fully within the Bill’s scope. The noble Lord, Lord Stevenson of Balmacara, spoke to Amendment 82ZA, which, as he indicated, would bring into scope all education matters not already covered by Schedule 1. As he said, we have retained legal aid for any education case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination, and current legal aid funding for appeals on special educational needs matters, as we have just discussed. We have also retained legal aid for education judicial reviews. In practice, the amendment would retain legal aid for all education matters, including advice on admissions and exclusion decisions and for educational negligence damage claims, and would mean lost savings of approximately £1 million. The judgment that we have had to make has been to prioritise funding on the most important education cases, which are special educational needs, discrimination and judicial review. We believe that those are of the highest priority, and that advice on, for example, admissions, exclusions and damages claims are not. Of course, those are not unimportant, but where parents are not satisfied with an admissions refusal they can appeal to an independent panel. That requires them to set out in writing why they disagree with the admissions decision, and why they think that the admissions arrangements have not been followed correctly. Those are not usually legal arguments, and the local authority choice adviser can assist parents and attend the appeal hearing with them. Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors, setting out their reasons for challenging the exclusion. Again, if they are unhappy with the decision permanently to exclude their child, they can appeal—currently to an independent appeal panel, but from September this year to an independent review panel. The Department for Education will fund the Children’s Legal Centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line. Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination, and legal aid is being retained for advice and assistance in such cases. Advice is also available on admission and exclusion matters, although I recognise that the organisations involved, such as the Advisory Centre for Education and the Children’s Legal Centre, face the same difficulties as others in the current financial climate. The other tier or category is education negligence claims, which have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid only on money claims that concern a significant breach of human rights or abuse of position or power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings and will be removed from scope. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I have heard my noble friend Lord McNally say from this Dispatch Box on a number of occasions that very difficult tough choices have had to be made on these issues and that there has had to be prioritisation. We believe that we have focused resources on education cases of the highest priority. I hope that the House will recognise that, and I urge my noble friend to withdraw his amendment.