Getting legal Deputyship for property or welfare decisions. Quick read guide with a complete information sheet available to download.
Do you need legal advice on behalf of a family member who has a learning disability?
Are you unsure how to get a solicitor?
The law and rights
There are many aspects of care and support for people with learning disabilities that are based on legislation, including education, social care, housing, healthcare equality and human rights. Many laws state what the public authorities ‘should’ do and what they ‘must’ do to offer support and services to people with learning disabilities and their families.
It helps if you understand what the law can do. There are a lot of reliable written resources about rights available, but be careful about information on the internet – when it comes to legal matters it is important to use accurate information. Here are some starting points:
- The Disability Law Service
- The Equality Advisory Support Service
- Disabled Children Legal Handbook from the Council for Disabled Children
- Citizens Advice
Resolving issues with services
Following cuts to public spending, some authorities are limiting what services and support they offer, so how the law is interpreted is very important. When families encounter problems with accessing services or feel they have been discriminated against, they may try to resolve issues by working in partnership with the authorities and then using the complaints process.
There is however sometimes a need for lawyers to help individuals to access their rights. Taking legal action can feel like a big undertaking and is daunting for many people. These steps to getting legal representation may help get you started. Remember that talking to a lawyer does not commit you to pursuing legal action.
Instruct a solicitor for your family member
Most people who have severe or profound learning disabilities will qualify for free legal representation, which is funded by legal aid. Any solicitor you instruct who is able to offer assistance should discuss this fully with you.
A solicitor can only represent a person if they are instructed to do so. If your family member lacks the mental capacity to instruct the solicitor themselves, then you can act as their ‘litigation friend’ to instruct the solicitor on their behalf. If there is no one suitable to act as litigation friend, the Official Solicitor (a Public Officer funded by the Government) may act as a litigation friend.
For a straightforward explanation of this, see the Social Care Institute of Excellence information.
Find a suitable solicitor
Families of people with learning disabilities may want a solicitor to represent themselves if the issues involve their rights as a carer. Solicitors want to be confident that there is a strong case for them to take on, as they need to win a certain proportion of their cases to make their business profitable. To offer legal aid, the solicitors must also have the necessary authority to do so in the relevant area of law. Legal firms that have expertise in areas of the law related to health and social care often have a high demand for their services. To help them work out whether they can take on your case, you should:
- Try to be clear about what issue you need legal advice about and tell the solicitor the most important things – they can ask for more detailed information later on.
- Think about what you are aiming to achieve; a decision to be prevented or overturned, justice for a situation that you believe was unlawful, or to have your concerns taken seriously.
Legal firms have varying areas of expertise, so you need to decide which one is the right firm for you. Here are some tips to finding an appropriate solicitor:
- Ask the CBF for a list of legal firms that specialise in education, health and social care laws (contact email@example.com).
- Use the Law Society’s Find a Solicitor service.
- Look at the firm’s website and read any examples of the kind of work they do.
- Ask what similar cases they have had experience of.
- Find out what their approach to the case would be.
Check how you can fund legal advice
If family carers need legal advice for themselves or also want to be represented in court, these are the main funding options:
- Apply for legal aid, which is based on income, so if the legal representation is for you then your income will be assessed. To find out whether you are eligible for legal aid, use this government legal aid checker. (If your adult relative will be represented and receives benefits, they are likely to be entitled to legal aid. Children are eligible for legal aid when the representation is for them).
- Contact Civil Legal Advice (on 0345 345 4345) who have a database of solicitors who work on a legal aid basis who they can transfer you to, or see: Civil Legal Advice (CLA) (www.gov.uk)
- Pay the solicitor’s fees. They will explain how much each stage will cost. Be aware that the costs can quickly add up and if your case goes to court a barrister’s time is extremely expensive.
- A Conditional Fee Agreement can enable you to take a negligence (damages) case to court – this is often called ‘no win, no fee’.
- Using Legal Expenses Insurance (which may be part of your home or car insurance) or if you are a Union member, your Union may cover the fees.
Any Solicitor who is willing to assist you should discuss funding options with you fully at the outset and should not charge you for any work unless you have agreed this in advance. Many Solicitors will offer to review your request for assistance free of charge.