A further major benefit of the CFA 2014 arose when support was extended from a system that did not apply to further education colleges or to anyone over the age of 19 to one covering children and young people from 0–25 years old, with young people (with capacity) over the age of 16 having the right to make decisions about their educational support. The current law has its defects, but it is generally accepted among practitioners that it would be workable if properly funded and with full accountability. There have, however, been widespread problems arising primarily from systemic failures to comply with the law, particularly with regard to time limits, writing sufficiently specified and detailed provision into EHCPs, and in ensuring that provision is actually delivered, including an adequate supply of specialist placements. This is substantially due to inadequate funding, but it is not clear whether the government recognises this; recent green paper proposals1SEND Review: right support, right place, right time, CP 624, March 2022. for reform focus instead on imposing ‘national standards’ with little or no indication of how this will remedy current problems and ensure that very necessary help is given to children and young people with SEND. At the time of writing, we await further developments.

This all changed in 2012 with the Legal Aid, Sentencing and Punishment of Offenders Act 2012, under which it was ordained that work could only be done through the telephone advice system, and some areas of education work (particularly education negligence claims, and school exclusions and admissions challenges) were taken out of scope. Unsuccessful attempts were made to widen the pool of firms offering telephone advice. More recently, some limited legal aid contracts have been granted, but this coincided with one of the major telephone advice providers deciding not to retender and the Ministry of Justice has not been able to find a full replacement. The reality is that it is simply not viable to offer legal aid work in education without a separate source of funding, and the limited number of people who qualify for legal aid are finding it increasingly difficult to locate a firm able to take on their cases.

Education negligence claims reached their high point with Phelps v Hillingdon LBC [1999] 1 WLR 500, when Ms Phelps won her claim for failure to recognise and provide for dyslexia. However, case law since then shows a fairly rapid succession of unsuccessful claims. Practitioners have found it increasingly difficult to bring claims to a successful conclusion due to a combination of expense and difficulty in obtaining and examining evidence, demonstrating negligence and causation, establishing what was or was not consequential loss, and arguments around contributory negligence and failure to mitigate loss. Such claims have now, in effect. stopped: legal aid is not available for them, insurers are unlikely to be prepared to underwrite the fairly high risks involved, and solicitors will not accept them on a contingency fee basis. While this is understandable, it is a pity that this has removed a further element of accountability for negligence.

In a 2012 reported Upper Tribunal (UT) appeal, parents successfully challenged Mossbourne Community Academy’s refusal to admit a gifted child with a statement of special educational needs in Dr SC v Hackney LBC [2012] UKUT 214 (AAC). The academy’s position was that it already had a high number of pupils with special educational needs and it could not be forced to admit another, by virtue of its status. The First-tier Tribunal decided that it did not have jurisdiction due to the independent nature of the school, but the UT decided otherwise.

League tables have pitted schools against each other, and had an impact on attendance, appearance and discipline policies. Over the past 20 years, this has led to greater focus on schools being able to remove children from class on these grounds, arguably to the detriment of pupils when an incorrect balance is struck. G v Head Teacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin); December 2011 Legal Action 38 was an example of an inflexible, culturally insensitive appearance policy. The High Court decision resulted in a review of the policy by the school as it was held to lead to indirect race discrimination.

Other concerning practices have been the increased use of internal exclusion and the use of isolation booths in schools. A judicial review was brought against the Outwood Grange Academies Trust in 2018, which resulted in the academy reviewing its practices. However, many schools still use isolation booths. The new behaviour guidance,2See page 30 of this issue. which came into effect on 1 September 2022, makes it clear that this should be a last resort in terms of internal discipline, and places a requirement on governing bodies to collect, monitor and analyse data on removal (previously referred to as isolation) so that they can identify and address repeat patterns.

Arguably, more measures are also required to stop the misuse of exclusion for disabled pupils and those with unmet special educational needs. Pupils in this category are between two and five times more likely to be permanently excluded, and recent changes in the exclusions guidance3As footnote 2, above. do not seem likely to make a substantial difference. The UT determined in C and C v Governing Body of A School [2018] UKUT 269 (AAC); November 2018 Legal Action 27 that a child with autism who had a tendency to physical abuse was protected under the Equality Act 2010, and exclusion on account of his behaviour was unlawful.

There have inevitably been numerous statutory, case law and policy developments over the past 20 years. Not all of these have been favourable to young people and their parents, particularly legal aid cuts and the ongoing national underfunding of special educational needs provision. Equally, the restructuring of appeals against permanent exclusions has led many to feel that they are not afforded an effective remedy. However, there have also been significant gains such as extending the SEND framework so that it now covers 0–25 year olds. Parents’ increased awareness of the range of available remedies in education law has also been a welcome development, assisted by a number of committed local and national charities.