Author: Amy Ooi, paralegal in the Public Law and Education team at Simpson Millar LLP
Almost seventy years ago, the concept of legal aid came into being. In short, legal aid is public money put aside to provide people with little or no means with legal representation. Its aim is to ensure that no one is priced out of access to justice. Before this, access to the courts for those who could not afford a lawyer was patchy, often relying on the goodwill of legal representatives to take cases on.
In recent years, cuts to legal aid have limited access to legal procedures for many within society, including the most vulnerable. While the focus has often been on criminal justice, civil law, welfare, immigration, or housing, the effects of cuts to legal aid for education have remained relatively unexplored.
Access to justice in education is fundamental: education enables participation in public life and ensures long term social and economic inclusion, with educational attainment increasingly recognised as an important social determinant of health. Not only is access to education a human right, it opens doors and career paths for individuals that might usually remain firmly closed.
In regards to education, the following issues are currently within the scope of legal aid:
- Special educational needs (SEN)
- Discrimination in education settings on the basis of a protected characteristic
- Judicial reviews (challenges to public authority decisions).
School exclusion appeals are no longer within the scope of legal aid. This is increasingly important; exclusions are on the rise in the UK. During the school year 2016-2017, a total of 7,700 exclusions were recorded. That’s 40 a day, compared to a little over 35 a day the previous year. Teaching unions place some of the blame for the rise in school exclusions on funding cuts, while children with SEN are disproportionately affected.
If we examine exclusions in the UK by ethnicity, Gypsies, Roma and Irish Travellers (GRT) children experience the highest level of exclusions from mainstream education. In 2015/16, pupils from the Traveller of Irish Heritage and Gypsy/Roma ethnic groups had the highest rates of both fixed period and permanent exclusions. It found that almost 1 in 4 Irish Traveller children and almost 1 in 5 Gypsy/Roma children will have experienced a temporary exclusion.
A report by the Children’s Commissioner in 2012 highlighted the fact the GRT children are four times more likely to be excluded from school than the whole school population.
The report also examined exclusion appeal success rates for appeals across 28 local authorities across England. It found that 100% of appeals against exclusions of GRT pupils were successful. This means that in every case recorded by these 28 local authorities, where a GRT parent had the means to challenge an exclusion, they did so successfully. Inevitably, this raises a critical question: how many Gypsy, Roma or Irish Traveller children whose parents aren’t in a position to appeal are being unfairly and/or illegally excluded from mainstream education?
70% of Gypsy, Roma and Traveller people have reported experiencing discrimination of some sort whilst in education. Though sometimes difficult to prove, this discrimination within the education system will often manifest itself in the form of exclusions. This is despite clear guidance to schools that they need to eliminate discrimination, harassment and victimisation. The statutory guidance echoes the fact that Gypsy, Roma and Traveller ethnic groups have the highest rates of exclusion. Head teachers are told to consider what additional support they can put in place for these groups. Specifically, “schools might draw on the support of Traveller Education Services, or other professionals, to help build trust when engaging with families from Traveller communities. The high rates of exclusion suggest this is simply not happening.
Although formal exclusions are outside the scope of legal aid, ‘informal’ exclusions can be challenged by judicial review proceedings. This is because only formal exclusions are lawful. There is therefore legal aid in respect of ‘unofficial’ exclusions. This is not widely known.
Unlawful exclusions can take many forms. Schools sometimes threaten to keep children down a year, put them on reduced timetables, or refuse to allow them to continue studying their chosen subjects at GCSE/A level in circumstances where they know this is likely to force the child out. The same goes for exclusions on the basis of attendance, or when schools put pressure on parents to withdraw or home educate their children to avoid permanent exclusion.
Cuts to legal aid and cuts to schools budgets have a disproportionate effect on the GRT community, who are in turn particularly vulnerable to exclusion and discrimination in educational institutions. It is especially critical in our climate of cuts that GRT parents retain the means to challenge unlawful decisions and to exercise their fundamental rights.
Simpson Millar is a national firm specialising in education law. We regularly work with members of the GRT community seeking to improve access to justice and educational outcomes for GRT pupils and their parents.