with Matthew Wyard, 3PB
Any parent who’s navigated the SENDIST Tribunal system will know it can be tricky terrain, especially once your young person has reached the end of statutory schooling and has the right to make their own decisions – and bring their own appeals. At this stage, issues relating to mental capacity and best interests can come to the fore. It is not always a given that parents can or should be representing their young person in a tribunal hearing.
A recent case, heard by the Upper Tribunal, brings more clarity to the situation, as well as information about the First Tier Tribunal’s role in giving health and social care recommendations.
Public law barrister, Matthew Wyard of 3PB specialises in education and Court of Protection disputes. He was instructed by Kevin McManamon and Milly Van Beyere from Geldards LLP for the Appellant in this case and has kindly written an explanation for SNJ
Disabled young people and their capacity to litigate at the SEND Tribunal, by Matthew Wyard, public law barrister
In this case, MM (as alternative person for C) v Royal Borough of Greenwich [2024] UKUT 179 (AAC), a disabled young man appealed to the First-tier Tribunal. His mother was named as his “advocate to support him expressing his views” and a solicitor was also named as his representative. No evidence about the young man’s mental capacity to conduct legal proceedings was submitted within the appeal paperwork.
As part of the appeal, the Tribunal was asked to make health and social care recommendations. The hearing took place over two dates. In between these dates, the local authority was ordered by the Tribunal to undertake a social care transition assessment and to produce a “draft or final” transition to an adult care plan. However, the young man’s mother did not attend any of the meetings. As a result of this, the local authority claimed it was only able to submit a draft plan to the Tribunal. In its decision, the Tribunal recorded the health and social care issues in dispute but refused to make recommendations, because it considered a transition to an adult social care plan had not been obtained and submitted as evidence.
The appeal to the Upper Tribunal
The young man’s mother, with assistance from Geldards LLP, appealed about the decisions made by the First-tier Tribunal (FtT) to the Upper Tribunal, on four grounds:
- Ground 1: The FtT’s conclusion that it could not make recommendations about health care provision was irrational or perverse, alternatively it lacked adequate reasons.
- Ground 2: The FtT’s conclusion that it could not make recommendations about social care provision was irrational or lacked adequate reasons.
- Ground 3: If further evidence was required to make recommendations, the FtT unlawfully failed to give effect to the obligations on it as an inquisitorial tribunal and/or failed to comply with the overriding objective.
- Ground 4: The FtT unlawfully failed to consider or determine the issue of C’s capacity to litigate the appeal.
What did the Upper Tribunal rule?
To summarise, the Upper Tribunal found that:
- The First-tier Tribunal erred in law by failing to engage with the question of the young person’s capacity, when it should have been obvious that the young man lacked the capaacity to litigate. The FtT ought to have satisfied itself that either the young person had capacity, and therefore should have been able to conduct the appeal himself, or that he lacked capacity and appointed an alternative person to represent him.
- The First-tier Tribunal also erred in law by failing to make health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.
- The First-tier Tribunal erred in law by regarding itself as “unable” to make recommendations because a social care assessment had not been completed by the local authority.
The Upper Tribunal noted a young person may have capacity at one time and not at another. They might not have capacity to bring an appeal themselves, but they may have capacity to make other decisions within that process. It is important therefore to recognise how capacity depends on each decision being made.
There are important differences between the First-tier Tribunal’s jurisdiction over health and social care and its jurisdiction concerning education. However, the Upper Tribunal has clearly stated the First-tier Tribunal’s power to make health and social care recommendations is materially the same as the power to make orders in respect of the contents of sections B and F. It is the only independent tribunal with jurisdiction to adjudicate on healthcare and social care provision. Where an appellant seeks health and social care recommendations they should not be viewed as an optional extra.
What are the implications around mental capacity of this ruling?
The SENDIST Tribunal has a responsibility to consider and, where there is a lack of clarity, decide, whether a young person has ‘litigation capacity’ i.e. whether they can
- bring an appeal and
- engage with the tribunal process.
If necessary, the First-tier Tribunal should pause proceedings to allow for the young person’s mental capacity to be assessed.
Where an alternative person is appointed to conduct an appeal on behalf of a young person who lacks capacity, the First-tier Tribunal must satisfy itself that any appeal is being properly conducted on a young person’s behalf. If they do have capacity to litigate, the Tribunal must ensure that they (and not their parent) conducts the appeal and makes decisions during the proceedings. If they do not have capacity, then the Tribunal is required to ensure that the correct person is appointed to conduct the appeal on their behalf, and that they are acting in their best interests in how they conduct the appeal.
If the alternative person who is appointed to conduct the appeal does so in a way that conflicts with the young person’s best interests, the Tribunal probably has the power to appoint a replacement who will act in their best interests. However, this should not happen before the Tribunal has put steps in place to ensure that the original appointed person understands their duty to act in the young person’s best interests and can remedy any previous conduct to ensure that it has no adverse effect on the young person. This can be achieved through the Tribunal’s case management processes.
How do I know if my young person has mental capacity to litigate?
If you are a parent wanting to represent your young person in appeal proceedings and you have doubts about whether your young person would be able to litigate an appeal on their own behalf, you should consider obtaining a mental capacity assessment or, at least, raising the prospect of the local authority arranging for a social worker to conduct one.
Importantly, if you are conducting an appeal on behalf of your young person who lacks capacity, any decision must be made in their best interests as opposed to what you as a parent consider to be in their best interests.
What are the implications related to health and social care in this decision?
All parties have a burden to provide the evidence needed for a Tribunal to make health and social care recommendations. If they fail to do so, the Tribunal can use its case management powers to make directions for the provision of evidence. It exercises an “inquisitorial” jurisdiction (examines the evidence) in respect of health and social care in the same way that it does for education.
Health and social care assessments are just one way by which health and social care evidence can be provided. There is no statutory requirement for assessments to have taken place before health and social care provision can be included in an Education, Health and Care Plan (EHCP). Although the legislative framework may inform the approach the Tribunal takes, the Tribunal does not need to ensure that the local authority has carried out the statutory steps regarding health and social care legislation.
A lack of cooperation by a parent should not in and of itself be treated by a local authority as an obstacle to completing an assessment for a child or young Person. If the First-tier Tribunal fails to exercise its jurisdiction to make recommendations in such a case, it risks reinforcing a legally incorrect approach by the local authority.
Click here to read the judgement in full.
About Matthew Wyard
Matthew Wyard is a public law barrister on matters concerning education, health and social care, as well as private client matters, predominantly in the Court of Protection.
Matthew is a widely published legal author. He is a contributing author to the Education Law Handbook, the leading text for education law practitioners and a contributing editor to Clarke Hall and Morrison on Children. He regularly writes for Lexis PSL and Practical Law and has also been published in The Times Higher Education, the Education Law Monitor and the Solicitors Journal.
Matthew Wyard (at 3PB) LinkedIn
Additional editing by Sharon Smith
Also read:
- Does the SEND Tribunal have to pay attention to the views, wishes and feelings of the child?
- Deputyship and mental capacity for young people at the SEND Tribunal
- SNJ in Conversation with Brian Lamb OBE: Building good parental relationships is the key to fixing SEND
- The next government must act to flatten the support ’cliff edge’ as young people with SEND become adults
- What can the SEND Tribunal do if a local authority misses an EHCP appeal deadline? A case study.
- What would a well-functioning further education system for young people with SEND look like?
- Supported Internships opening doors to employment for young people with SEND
- How H&M and WorkFit helped my daughter who has Down syndrome gain purposeful, paid experience of work
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