Law: Learning new legal lessons: Barbara Lantin looks at the rapidly expanding field of education law

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The Independent Online
NEW legislation does not necessarily mean more work for the legal profession. Judging from past experience, however, the 1992 Education Act - which receives Royal Assent later this month - looks certain to generate plenty.

Its three immediate predecessors have propelled the area of education law from a legal backwater into the mainstream. When the Education Law Association (ELAS) held its first meeting two and a half years ago, 25 people turned up. The association now has 280 members, 70 per cent of them solicitors, with more joining at the rate of two a week.

'The proliferation of legislation since 1980 has turned education into one of the most highly regulated fields,' says the ELAS treasurer, Richard Gold of the central London firm, Bennett Taylor Tyrell, one of a number to have set up education law departments.

'Previously there was a consensus between local education authorities (LEAs) and schools as to what was done and nobody else intervened. The question of parental rights didn't arise. Today governors rather than LEAs run schools and there has also been a change in parents' perception. We see this as a growth area.'

Education law comprises two distinct areas of work depending on who is the client - parent or school. Advertising, referrals from specialist organisations and word of mouth will bring in the parents, whereas a governorship is a good place to start for a firm more interested in schools.

Mr Gold has been a governor of a voluntary aided secondary school for nearly 20 years. His firm's project - Legal Services for Schools - launched last year offers advice on educational charitable trusts, school administration and rights and responsibilities under the recent Education Acts.

'At the moment schools can still get legal advice from the LEA but with the increased delegation of responsibility to individual schools there is bound to be more work for soiicitors,' Mr Gold says.

Schools need the same range of legal services as any other business as well as number of additional ones, Mr Gold argues. Recent Education Acts have created a potential minefield. Ideally, he says, he would like to run a 'health check' on the procedures operated by all his school clients, but he suspects that most are not yet ready to part with money for preventative purposes.

'Schools are accidents waiting to happen,' he says. 'Errors in procedure occur all the time but are not picked up because they do not affect anybody adversely. I am willing to bet for example that very few schools have a proper complaints procedure in place.

'In fact, a report from the National Consumer Council has shown that a third of governing bodies had not even considered this aspect of their role. One day this will matter and that is when the school will need a solicitor.'

'It's an area of law that any solicitor practicing in the local community should know something about. But it is not a field you can bone up on quickly. As well as knowing the law - which is highly complex and technical - you need to know how schools in general and your client school in particular work.'

Peter Liell, a sole practitioner and co-editor of a textbook on the subject, took on his first education case 15 years ago when a colleague faced a conflict of interest. He now does 'very little else', he says.

Unlike Mr Gold, Mr Liell's clients are almost exclusively parents. 'Typical cases concern admission, exclusion or 'statementing' for children with special educational needs,' he says. 'And there are occasions when a group of parents get together to challenge a school closure or transport arrangements.'

Legal aid is currently not available for the initial appeal committee hearings so solicitors are more likely to be involved at the next stage - an application to the High Court for leave to apply for a judicial review.

There are between 50 and 100 such applications relating to education each year, with most settling before reaching court. A high proportion involve special needs, an area where since 1990 it has been the child rather than the parent whose means are assessed for the purposes of granting legal aid.

'Most cases involve ensuring that the parents' and childrens' rights under the law are secured,' says Mr Liell. Education appeal committee hearings for special needs cases are due to be replaced by independent tribunals. This step looks likely to increase the involvement of the profession but there are fears that hearings will lengthen and that without legal aid some parents will be unable to obtain legal representation.

Like others, Mr Liell sees new possibilities opening up continually. The latest Education Bill requires LEAs and the funding agency (which will fund grant-maintained schools) to take joint responsibility for the provision of school places.

'It will be like the two ends of a pantomime horse pulling in opposite directions and tearing the fabric apart,' he predicts. 'The result will be a number of children falling through the hole which will inevitably be created.'

Jack Rabinowicz of the London firm Teacher Stern and Selby and the chairman of ELAS, receives an increasing number of approaches from worried parents each year. His interest in the subject began ten years ago with involvement in the Disability Law Centre. His firm recently formed a three person education law department.

'I have been persuaded by parents to do three admissions appeals in the last month,' says Mr Rabinowicz. 'It is not an obvious forum for solicitors but it seems to be a growing one. I may give advice, help the clients prepare a statement or actually represent them. It depends on what they want and what their budget can stand. '

Mr Rabinowicz has been watching closely the judgements in recent civil cases of alleged 'maleducation' where LEAs have been accused of having given children inappropriate or insufficient education. 'Mr Justice Otten decided the floodgates would be breached if he allowed such claims' he says. 'But other hearings are due. Things could change.'

ELAS is open to solicitors and others involved in the legal aspects of education. For further information contact the secretary, Carolyn Henson, 1b Aberdeen Studios, 22 Highbury Grove, London N5 2EA. Tel: 071 354 8318.

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