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Bullshit Mr. Clarke – Some justice!

November 19th, 2010

I urge the Government not to lose its compassion nor its sense of justice. Yet that is what the Coalition Government is in danger of doing when it “saves” £350m a year in legal aid costs.

I flag up two dangers. One is that this ‘saving’ disturbs the delicate balance between the rights of the citizen and the State, to the advantage of the State and the disadvantage of children with special educational needs. The other is that it lowers standards when it is all the more important to promote excellence in the care of those children, to make money go further.
This saving ought to be seen to be totally wrong. Maybe the Tories can’t see it that way, although they should. They always assert this country’s traditional values. The Lib Dems should surely see it as a blow to the rights of the individual, in particular the rights of the individual against the State.
There is a myth put about by those who would have you believe it - the Secretary of State for Justice and Lord Chancellor for examples – that tribunals are informal and non-legalistic.
The fact is that decisions taken there, as in any Court, are taken on the basis of the law – statutes, statutory regulations and cases that interpret them, make precedent.  The man or woman in the street cannot be expected to know the way around – although somewhat stupidly there is the legal maxim that you are presumed to know the law; never mind somewhat stupid, very stupid.

My sad experience is that those appointed by the State to judge or to decide or even to arbitrate cannot always be expected to explain the law to them, or argue it out on their behalf against the State. Maybe they should, but they don’t see it as their remit. It’s not the way the system works.
My partner for many years volunteered her services and her legal know-how in the Tribunal Unit of a Citizen’s Advice Bureau before it was closed down by a local authority. She also served as a wing member of a Disability Tribunal. I saw it through her eyes and I also through my own. I saw it as a governor of special school witnessing the efforts of parents to get their children into a school a local authority wanted to close in pursuit of the policy of the day.

This is the reason why Legal Aid is a core value in a democratic Western Society. There should be a line in the sand beyond which these cuts should not go, and this “cut” is beyond that line.
Consider a case in the House of Lords. It ruled that teachers and those working for local education authorities, had a duty of care to children with Special Needs. The Local Authorities tried to argue that as Parliament, in establishing the Statementing process to protect children, had not provided this – in fact it had actually rejected an amendment to this effect – it had limited the duty of care to the Statementing process, and that was the end of their responsibility.

Seven Lord Justices decided otherwise – thank heavens.
They said quite specifically that whether Local Authorities liked it or not, whether teachers liked it or not, whether it produced a rash of claims or not, whether it was difficult to put a figure to the damages caused or not, teachers, education officers, educational psychologists, all those working for Local Authorities had a duty of care, and the Local Authorities had what is called a vicarious liability, that is an indirect but real liability, for any failure on the part of their employees to provide it. That failure is called negligence.

Local Authorities could not even argue that they had to address only the child’s educational needs. The judges again were explicit. ‘They have to take reasonable care of their health and safety including the monitoring of their needs and performance.’

It is in this context that Kenneth Clarke, Secretary of State for Justice and Lord Chancellor, said this in Parliament. ‘We believe it is simply not right for the taxpayer to help inject an element of what is really legalism into problems that should in the end be resolved taking into account the best interests of the child from an educational point of view.’

This is bullshit, Mr. Clarke!

I quote from a letter to the Editor of The Times from Professor Michael King, School of Law, University of Reading.
‘The Government’s plan to remove legal aid from parents on low incomes who seek to challenge local authority decisions on their children’s special educational needs is yet another example of the UK ignoring its international law obligations (under the UN Children’s rights Convention) to make children’s interests a primary consideration in any state action concerning children. Not only will these proposed cuts prevent parents from obtaining legal help in the preparation of their tribunal case, it will make it impossible for them to secure a report from an independent psychologist or speech and language therapist at present paid for under legal aid to counter the often one-sided reports produced by local educational departments. … many parents …will be forced to accept the cheaper, and often woefully inadequate, services that cash-strapped local authorities will seek to impose.’

So, standards of excellence – forget them!