by Donna Sharp with Eleanor Wright

SEND advice: What to look for when looking for legal representation or advocacy

Raising a child with SEND is probably the most rewarding, yet one of the most profoundly complex caring roles ever. On any given stage of the journey, many families will feel overwhelmed with the physical and mental challenges of ensuring their disabled child has enough support, including education, health and social care.

Many family carers in this situation have more than enough on their plates, without having to fight those whose job is to provide a duty of care and support so children receive their legal entitlements. Unfortunately, however, that the reality for too many parents and carers. 

My child needs help with learning – What should I do?

To secure support that is different, or additional, to that normally provided in a mainstream school, your child will need an Education, Health and Care (EHC) Plan. This will set out their special educational needs, plus education-related health and social care needs, and how they will be helped.

The local authority (LA) is supposed to assess your child’s needs, with input from you, the school and other relevant professionals.  If the local authority agrees, an EHC plan for your child will be drawn up, in consultation with yourself, the school and professionals. The local authority has a legal duty to ensure that the identified support is put in place.   

The EHC Plan must be reviewed every year to ensure it is still meeting your child’s needs.  This is called an Annual Review, and it provides a further opportunity to discuss whether the child’s needs are being met and to consider amendments to the EHCP.  

In Practice 

Whenever a local authority is taking any decision in relation to children and young people with SEN or disabilities under The Children’s and Families Act 2014, it must have regard to principles set out in Section 19 in the SEND Code of Practice, Chapter One.

While the framework sets out clearly how the system should work, it doesn't always work as it should.  There are constant pressures within local authorities to save money. Unfortunately, many case officers and school representatives simply do not always know, or properly understand, their legal responsibilities.

You may need to "persuade" the school or the LA to provide what you believe your child needs and to pursue appeal rights. You have legal rights to appeal against a number of decisions including:

  • refusal to assess
  • refusal to issue a Plan
  • the contents of the initial or any subsequent amended Plan including the school named as your child’s placement
  • refusal to amend a Plan following an annual review
  • a decision to cease to maintain a Plan

For many parents, understandably, this may be more than they can manage. There are a number of sources of free help to navigate the complexities of the system and in enforcing their children’s rights.

Where can I get help?

We see an increasing number of parents, carers and young people needing extra support or advocacy.

While local authorities must provide an impartial support service, the SEND Information and Advice Service, some parents may not feel this is a viable option (more on this later).

We often signpost parents to two national SEND charities in terms for advocacy, SOS!SEN (an SCA member) and IPSEA.  There are other organisations such as SENTAS that specialise in advising on SEND Transport advice, some that specialise in particular types of difficulty such as the National Autism Society, the British Dyslexia Association and the Downs Syndrome Association and other organisations on social media platforms that cover all aspects of supporting your family on a whole including any carers’ support you may need such as respite and Educational Equality who help families navigate through the maze of Special Educational needs. There are many other charities that can assist your family such as Disabilities Rights UK, Pohwer and Mencap to name but a few. Our member Special Needs Jungle also has lots of information and helpful articles about EHCPs and SEND.

Local authorities are required to publish details of their Local Offer on their website listing all education, care and health resources available to children and young people in their area who have disabilities. However, these are not always complete and may not have comprehensive sources of help in all the areas you need. Details of what MUST be included on Local Offer websites can be found here on the SNJ site and in the SEND Code of Practice 2015 - Chapter 4

As mentioned earlier, all local authorities are required to offer a free SENDIAS service (Special Educational Needs and Disabilities Information Advice and Support). While they are funded by local authorities, they're supposed to operate at arms’ length and be impartial.  Some parents tell us, however, that they feel wary, because their local service is based in the same offices as the council SEN department they're battling with over support.

All SENDIAS have to meet a minimum standard, but they can vary considerably in size, capacity and resources. This quote below is from their minimum standards document.

The IASS provides advocacy support for individual children, young people, and parents that empowers them to express their views and wishes and helps them to understand and exercise their rights in matters including exclusion, complaints, SEND processes, and SEND appeals.

3.5  The IASS provides information, advice and support before, during and following a SEND Tribunal appeal in a range of different ways, dependent on the needs of the parent or young person. This will include representation during the hearing if the parent or young person is unable to do so.

3.6  The IASS offers training to local education, health and social care professionals, children, young people and parents to increase knowledge of SEND law, guidance, local policy, issues and participation.

IAS Minimum standards

Online SEND Support 

Most local areas have their own parent support groups, which are particularly helpful in sharing local resources, procedures, schools, and other sources of help and support. There are also many SEN support groups online and on social media platforms such as Facebook, covering both general SEND topics and also specific areas such as ADHD, Autism, PDA, EHCP support, children out of school and so on. They can be invaluable but, as with all things online, you do need to be aware that there is wide variance in terms of accuracy and reliability. You should never rely solely on any information you received from such sources.

There is a huge need for specialised advocacy, because most SEND families experience disagreements at some stage about the support their children needs. We are finding hundreds, if not thousands, of families nationally in sometimes very harrowing situations. Statistics suggest this is due to cuts to budgets and services. It's often also because LA SEND case officers have not received sufficient training in either helping families or in understanding SEND legislation. This can lead to misinformation, delays and conflict.

Parent experience 1:

The worst part to swallow is if the local authorities actually just provided what our children need, instead of spending budgets meant for children on defending their actions with a battalion of legal experts, choosing to drag parents through an unscrupulous complex system we wouldn’t be in this crisis. 90% of parents win the support in the end but at what cost?!

There’s an emotional and physical impact on my family as a result. I’ve been denied essential assessments and spent my life savings on private Independent educational reports. It’s a financial and emotional burden on families when the Local Authorities then ensue reports that were vital at the beginning of this chaotic process.

Parent

Solicitors and barristers

There are a relatively small number of specialist SEN solicitor firms around the country, if you can afford this route. If you are considering engaging a lawyer, you should ensure that they genuinely specialise in education law, as relatively few high street firms deal with this area.  It is also possible to secure help from barristers who offer Direct Access, but this tends to be limited to specific types of work such as representation at Tribunal appeals. Good sources of referrals for specialist lawyers are the Chambers and Legal 500 guides (although these do not include every specialist firm). Make sure you are looking under the category of those dealing with education for individuals as opposed to those which normally work for local authorities and schools.

Legal help is expensive and you should always seek full information about costs from the outset, including where applicable details of any fixed fee arrangements that are available. Steve Broach, public law barrister, has a list of solicitors on his blog, some of whom have legal aid contracts. Queen Mary University also offer a free clinic for advice

Legal Aid

Some help may be secured through the legal aid system, but in general, the income and capital eligibility limits are set at extremely low levels so that only a relatively small proportion of the population will qualify. You can check whether you are eligible through this link

Only a limited number of solicitors’ firms have contracts enabling them to offer legal aid in education cases, and you may not be able to secure a firm that is local to you. However, this need not be a problem, particularly given the availability of online consultation facilities. Some firms also offer pro bono services, so it can be worth asking.

For some types of claim, notably challenges through the courts to failures to comply with statutory duties (judicial review), legal aid may be available in the names of the child affected. This does not cover appeals to the Special Educational Needs and Disability Tribunal.  Children in care or under Special Guardianship Orders may qualify for legal aid for tribunal appeals in their own right. Tribunal appeal legal aid will cover the costs of securing independent expert evidence, but does not cover representation at hearings or fees charged by independent witnesses for attending hearings. 

Hourly rates under legal aid contracts are set at low levels which mean that many firms offering legal aid, particularly for tribunal appeals, are heavily reliant on trainees and paralegals.  They should, however, be supervised by more senior members of the firm including solicitors and legal executives.

Parent experience 2:

We were desperate to get my son into a specialist school, I’m unable to work as a full- time caregiver. My husband works all hours and still we did not pass the means test for legal aid. We were just over the threshold and we barely make ends meet. Where does that leave us? We tried to get advocacy through a specialised charity, unfortunately at the time there was extensive waiting lists.  

Parent

SEND advocates

An increasing number of people without formal legal professional qualifications are offering services as SEND Advocates. They offer varying degrees of support with different aspects of the SEND process. Some offer representation and/or support at tribunal hearings and with further appeals to the Upper Tribunal. Some are very experienced and offer a good service. However, this is an unregulated area. It is only too easy for someone with little knowledge of SEN to set up as an advocate, so a high degree of caution is needed. This is particularly true if they are charging for their services. We strongly advise parents considering using an advocate to read a very useful blog on the Special Needs Jungle site “Getting Help with EHCPs: Be Careful Out There!”  by their columnist Matt Keer. Do your research carefully!

Of course, most, but not all, SEND advocates are considerably cheaper than qualified, specialist lawyers. However, in some cases, unfortunately, you get what you pay for. It will be no comfort that your advocate charged half the rate of a qualified lawyer if they've done such a poor job that you've had little value for money.  We have seen documents drafted by some self-appointed advocates that are of poor quality, whose clients - desperate parents - have regretted going down this path. Additionally, we know of parents' cases that have been damaged because of their advocate's failure to present the right evidence, or their decisions to make damaging and unnecessary concessions. 

Parent experience 3:

SEND SHARKS – I got to the end of my line with advice from various social media platforms, I was vulnerable and desperate for help……I was approached by a person that offered advocacy in the form of a Pre–Action Judicial Review (copy/paste) template. I gave this person copies of our personal documents and we spoke at length over the phone. I later sought advice from a legally-trained person who was shocked at the ill advice I’d received, which ultimately, had left me in a bigger mess.

Parent

Anecdotally, we've heard a number of tribunal judges are seriously concerned at the quality of some unqualified parental representatives appearing in front of them, but their hands are tied because it is not their job to interfere in the parent's choice of advocate.

A cautionary tale

This case is a cautionary tale.  Parents were represented by an advocate who charged four-figure sums, describing himself as "specialising in cases involving children with autism, with significant personal and professional tribunal experience".

They lost their appeal for a place at their preferred mainstream school. The tribunal named the specialist school the child was attending at the time.  The parents still preferred a mainstream placement and appealed to the Upper Tribunal, arguing that the First-Tier Tribunal should have named a type of school, namely a mainstream placement. The Upper Tribunal held that, because the advocate had conceded that alternative, mainstream placements need not be considered, the tribunal had acted correctly. 

The judge laid considerable emphasis on the fact that the advocate was presenting himself as experienced, so the Tribunal was entitled to take his concession at face value. The best efforts of specialist solicitors and counsel at the subsequent appeal did not persuade the judge that they should ignore the concession.

What should I look for?

Some particular points to look out for if you are considering using an unqualified advocate:

  • Qualifications Advocates do not have to have any form of legal qualification, training or experience, although some do. If you are considering using one, we strongly recommend asking what their qualifications and training are.
  • Insurance While solicitors and barristers are required to have insurance, advocates are not.  If they do not have public liability insurance, the risk is that if they give negligent advice or act negligently in other ways in the conduct of your case, in practical terms you would have great difficulty in recovering compensation on behalf of yourself or your child for any damage this causes.  
  • Reputable professional bodies Solicitors, barristers and legal executives have to be members of professional bodies which, amongst other matters, check that they undergo ongoing training to keep their skills and knowledge up to date, and also enforce specific standards of conduct. This does not include organisations where you simply pay a fee to be a member, without needing to show any relevant qualification or experience. We are not aware of any professional bodies for others offering advocacy, which does tend to take away other safeguards.  In itself, the fact that an advocate is not a member of a professional body need not disqualify them, but it is a factor to bear in mind.
  • Success rates Beware of advocates and lawyers advertising extremely high success rates, particularly at or near 100%.  Some register a case as a win if they only succeed in getting a few words in an EHCP changed. Their clients might well not take the same view if they have not succeeded in their main objective.
  • Charges While lawyers are likely to charge considerably more than advocates, they are required by law, to give up-front information about their fees with an estimate of the overall likely costs. Additionally, there is a right to ask the Law Society or the courts to review solicitors’ invoices and they have the power to reduce them, in the event that they are found to be overcharging, or charging for work that is unnecessary, or that they have not done. This is not a safeguard that applies to unqualified advocates. Again, if you are considering using one, we suggest you ensure that you fully understand what they are charging for and all their invoicing arrangements.
  • Terms of business You should check these very carefully, both in the case of lawyers and advocates. Likewise, carefully check anything else you are asked to sign.  We have, for instance, seen a document produced by an advocate who required parents to give cart-blanche in terms of giving information to others, including the other side, and in negotiating generally.  This is potentially dangerous, since it may lead to confidential information being shared more widely than the parents anticipate. They may find themselves bound by an agreement made by their advocate about which they have not been properly consulted. In another case, an advocate wanted a parent to sign a document limiting how the LA and professionals could communicate with them. It was written in such heavy-handed and draconian terms, there was a significant risk that this could have been interpreted as a deliberate attempt to keep them away (which was not the parent’s wish) and thus a significant safeguarding risk.
  • Ongoing training Barristers and solicitors are required by their professional bodies to keep up to date with the law and current practice by various different means. There is no such requirement imposed on unqualified advocates. We have seen some websites that contain seriously out-of-date and/or inaccurate information.  It is worth asking about recent training undergone by any advocate you are considering using.

Ask around

It is always worth asking other parents for their experience of advocates and lawyers. Online forums can be useful for this purpose.  Bear in mind that one person’s bad experience may not be universal and may be a specific set of circumstances, so a range of opinions is helpful.

Finally, we are not here to say parents who need representatives must use lawyers and no-one else; we have included reputable services above that can help for free. Ultimately it is entirely the parents’ choice and indeed, we know of a few excellent advocates.  However, it is very difficult to gauge an advocate’s quality from a superficially impressive website. Given the vital importance of your child getting the right support, it really is essential not to take unnecessary risks.

Author: Donna Sharp SEND National Crisis/SEND Community Alliance 

Credits: Special thanks and credits to Eleanor Wright SOSSEN/SEND Community Alliance, to Disability Rights UK, Mencap UK 

Sources: BBC News & The Law Society Gazette.