Special needs child funded to challenge SLAB
16 Jun 05
Sheriff principal grants legal aid for judicial review of means decision
A nine year old autistic boy has been given legal aid to challenge a refusal by the Scottish Legal Aid Board to fund an appeal against a refusal of a school placing request.
Gregor Sinclair's challenge will turn on whether it is his means or those of his parents that fall to be taken into account in an appeal under section 65 of the Education (Scotland) Act 1980.
Gregor's parents had applied for his admission to a special school, but were refused by the education authority and then by an appeal committee. They applied for legal aid to appeal to the sheriff but were refused due to the dispute over resources. They then applied for legal aid for a judicial review of that decision. The application came before Sheriff Principal Alastair Stewart at Edinburgh under section 14(4) of the Legal Aid (Scotland) Act 1986.
Gregor's solicitor Mr Scott argued that under the 1980 Act Gregor's parents were acting in a representative capacity and their resources should therefore be disregarded. Expert witneses would be involved and the hearing could last weeks. Without legal aid Gregor's right to pursue the appeal would be lost.
Mr Haggarty for the Board argued that the parents' right to appeal was as individuals and that they might qualify for legal aid on an assessment of means.
Sheriff Principal Stewart said that he could not decide the question which would be put to the Court of Session if the judicial review went ahead. But Gregor's case was one for which a coherent and logical argument could be presented. "It is not necessarily inconsistent with the principle that a child should be educated in accordance with its parents' wishes that the parent should pursue an action concerned with the child's education in a representative capacity. After all it is the child's education which is the matter for concern."
He was further satisfied that it was reasonable that Gregor should be granted legal aid. "There is an important point of principle involved here. As Mr Scott pointed out, the ultimate decision in this case may affect many more children than just the present applicant. In all these circumstances I am satisfied that the interests of justice require that I should grant the application."
The Sheriff Principal's decision can be read at http://www.scotcourts.gov.uk/opinions/CI_01_4010301.html .