Published:  14th February 2023

Changes to the legal aid rules came into force last week, following a legal challenge brought by a Public Law Project client, that will enable 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 changed the rules on legal aid in the SEND Tribunal in response to a legal challenge brought on behalf of ‘Laura’ [not her real name], a child with disabilities whose prospective adoptive mother was refused Exceptional Case Funding (ECF), a type of legal aid, 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’ (i.e. those over compulsory school age) can bring appeals in their own name their parent/ carer may do so on their behalf. However, 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. 

Going forward, neither foster parents or prospective adoptive parents will be means assessed when applying for ECF legal aid on behalf of a looked after child. The Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2023 (the ‘2023 Regulations’) amend the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (the ‘Means Regulations’).  They came into force on 10 February 2023.

What do the 2023 Regulations do?

The key change made by the 2023 Regulations is that foster carers or prospective adoptive parent of looked after children will no longer be means tested when they apply for ‘legal help’ (which means initial advice and support) or ‘legal representation’ in a SEND Tribunal appeal.

For most types of legal aid, an applicant must satisfy the legal aid means test, which means their income and capital must be assessed as falling under certain financial limits. For ‘legal representation’ in a SEND Tribunal appeal, the applicant must make an additional ‘Exceptional Case Funding’ (‘ECF’) application. The Means Regulations provide for limited exceptions, namely, areas of work that are non-means tested. The new rules expand those exceptions.

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.

Laura’s litigation friend and prospective adoptive mum ‘Catherine’ said:

“Laura’s SEND Tribunal appeal was very complex. Without my legal aid lawyer Esther I would not have been able to represent her effectively. Increased access legal aid is in this area is vital for foster parents and prospective adoptive parents. However, I remain concerned that once Laura is adopted, we will no longer be entitled to non-means tested legal representation and would need to be means assessed like any other parent. For this reason, I feel strongly that all families, and in particular those who have adopted children from care, should be able to access non-means tested legal aid in SEND appeals.”

Emma Vincent Miller, Solicitor at the Public Law Project said:

“Children with special educational needs sometimes need to challenge decisions that relate to how their needs are met by their local authority and school. Such appeals are heard in the SEND Tribunal, where legal aid can only be accessed via the Exceptional Case Funding scheme. These new regulations mean that the foster carers or prospective adoptive parents of children will no longer need to be means tested to access that legal aid.

“Unfortunately, there remain significant access to justice issues. Many parents and carers of children who do not fall into these categories will not satisfy the strict legal aid means rules but will still be unable to afford to pay for a lawyer privately.”

Oliver 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%[1] 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.”

[1] https://www.lawsociety.org.uk/campaigns/legal-aid-deserts/education