Education Advocacy does not hold a contract with the Legal Aid Agency and so cannot directly advise on Legal Aid matters or help under the Legal Aid scheme.
We strongly believe that if you are eligible for support under the Legal Aid Scheme you should use it. Legal Aid will prepare and serve any appeal documentation, commission any additional reports you need and deal with the LA/Tribunal. They will not attend the Tribunal but may be able to arrange a third party to help.
The following is provided as information only.
Legal Aid is available for parents or young people over the age of 18 who may meet the financial threshold for eligibility.
The scheme is administered through the Legal Aid Agency and is means tested. All advice, case work and expert reports are provided FREE OF CHARGE.
If you receive certain benefits, they are passported through the Income Means Test. You automatically qualify within the income limits, but you will still have to prove that you have less than £8,000 of savings and/or meet capital limits.
Passported benefits include:
- Income Support (IS)
- Income-based Jobseeker’s Allowance (JSA)
- Universal Credit (UC)
- Guarantee Credit element of Pension Credit (GC)
- Income-related Employment and Support Allowance (ESA)
These are the thresholds for education cases. Different areas of law will have different thresholds. If you have been refused Legal Aid in one area do not assume you will be refused legal aid in this area.
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Legal Aid and Looked After Children – amendment to legislation following Legal Challenge
Changes to the legal aid rules came into force on 10th February 2023, following a legal challenge brought by a Public Law Project client. This 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’).
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.