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Cite as: [2016] UKUT 253 (AAC), [2016] ELR 431

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London Borough of Hillingdon v WW (Special educational needs : Other) [2016] UKUT 253 (AAC) (25 May 2016)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference EHC313/15/00008, made on 13 January 2016, did not involve the making of an error on a point of law.

The suspension of the effect of the tribunal’s decision no longer applies.

Reasons for Decision

A. The capacity issue

1. Although my reasons deal with this individual case, they will be relevant to other cases for my analysis of how an appeal may be brought in respect of a young person who does not lack capacity to do so. I deal with that issue in Section E.

B. Preliminary matters

2. The relevant legislation is set out in Appendix 1. I have used these abbreviations:

The 2005 Act – Mental Capacity Act 2005;

The 2014 Act – the Children and Families Act 2014;

The 2014 Regulations – the Special Educational Needs and Disability Regulations 2014 (SI No 1530).

The relevant parts of the Special educational needs and disability code of practice: 0 to 25 years of January 2015 are set out in Appendix 2.

3. I held an oral hearing of this appeal on 18 May 2016. Mr Small of Baker Small solicitors represented the local authority. Stephen Broach of counsel represented the respondent. This was a joint hearing with HS/0516/2016, in which Mr Small also represented the local authority and David Wolfe QC represented the respondent. I have used respondent at this stage, because it will take a long analysis to work out who the proper respondents were in these cases. I am grateful to all the advocates for their contributions.

C. William

4. This case concerns William. He was born on 19 November 1998. As a result of negligence at birth, he has severe cerebral palsy. This has led to severe physical disabilities, spinal deformity, progressive scoliosis, lower limb contractures, and communication and learning difficulties. He has dysarthria and epilepsy, although he has had no seizures for three years or so.

D. The appeal to the First-tier Tribunal

5. As a result of an assessment, the local authority decided that special educational provision needed to be made for William in accordance with a plan. William challenged some aspects of that plan by his appeal to the First-tier Tribunal under section 51(2)(c). The most important issue was placement. The local authority had named HC whereas William preferred TC, which he attended from September 2015. The tribunal allowed the appeal and, among other changes to the plan, named TC. I gave the local authority permission to appeal to the Upper Tribunal and suspended the effect of the First-tier Tribunal’s decision pending this decision.

E. Young persons and capacity issues

6. I deal with this issue first as it is logically preliminary to the substantive issues.

7. A young person is someone who is over compulsory school age but under the age of 25: section 83(2) of the 2014 Act. Section 51 confers a right of appeal on the young person. The question is: how is that right made effective? There are three possibilities: the young person may have capacity, the young person may lack capacity, or the young person’s capacity may be in doubt. Before coming to those, I need to say something about what lack of capacity entails.

Lack of capacity

8. This is governed by the 2005 Act. Capacity depends on the matter in respect of which a decision has to be made: section 2(1). So a person may have capacity at one time but not at another, and may have capacity in respect of one matter but not another. The matter I am concerned with is the bringing of an appeal; that is what I mean when I refer to (lack of) capacity. The young person may have capacity in respect of that, but not in respect of other decisions that have to be made in the course of the proceedings. Equally, a person may lack capacity to bring an appeal, but have capacity to make other decisions in the course of the proceedings.

9. A person is presumed to have capacity until shown otherwise and then only after all practical steps have been taken without success to help them make a decision: section 1(2) and (3).

10. Whether a person has capacity is a matter of fact for the tribunal to decide. Mr Small argued that the tribunal had a particular responsibility to ensure that a young person had the necessary capacity. In a sense, that is correct. Any tribunal must be alert to the possibility that a person lacks capacity on a matter. However, the overriding objective for both the First-tier Tribunal and the Upper Tribunal requires parties to co-operate with the tribunal: rule 2(4) of both the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699) and the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). That may involve drawing an issue to the tribunal’s attention and, perhaps, providing the tribunal with any evidence it needs to resolve the issue.

If the young person has capacity

11. Young persons who have capacity are in no different position from anyone else. They may appoint someone to help and act for them. That person may be a parent or someone with some form of professional position. Their role is as an assistant and an advocate. The appeal is brought under section 51 by the young person. The person who helps is merely assisting them. In tribunals, that person is usually called a representative. Unfortunately, that term is also used in a different sense when the young person lacks capacity.

If the young person lacks capacity

12. Section 80 deals with young persons who lack capacity. It adopts the meaning of lacking capacity that applies in the 2005 Act: section 80(5). The section is an enabling one, providing for regulations to be made. In particular, it provides for references to a young person to be read as referring to the young person’s representative or parent: section 80(2)(b). Representative is not used here in the sense of an advocate in proceedings. Rather it refers to a person who acts for someone who lacks capacity. It is defined in section 80(6) and covers: a Court of Protection deputy; a donee of a lasting power of attorney; and an attorney of an enduring power of attorney.

13. Regulation 64 of the 2014 Regulations is made under the authority of section 80(2)(b). It introduces the concept of an alternative person. The starting point is that the young person’s representative (in the section 80 sense) is the alternative person: regulation 64(2)(a). If the young person does not have a representative in that sense, it means the young person’s parent: regulation 64(2)(b). The effect of this depends on which section of the 2014 Act is involved. In the case of section 19, the reference to young person is read as a reference to both the young person and the alternative person: regulation 64(1)(b) and Part 1 of Schedule 3. In the case of section 51, the reference to young person is read as a reference to the alternative person: regulation 64(1)(b) and Part 2 of Schedule 3. The result on an appeal is, in Mr Wolfe’s helpful phrase, a statutory substitution of the alternative person for the young person. The appeal under section 51 is brought by the alternative person in that capacity but in the best interests of the young person. For the purposes of appeals, in both the First-tier Tribunal and the Upper Tribunal, it is the alternative person who is the appellant or respondent. They are acting in respect of the young person, but not on behalf of the young person in the way an advocate would.

14. The alternative person may act on their own or use the services of a representative in the advocacy sense. An alternative person who is a representative in the section 80 sense may also rely on the services of a representative in the advocacy sense.

15. Mr Wolfe referred me to Annex 1 to the Code of Practice, which deals with young persons who lack capacity. He drew attention to one mistake or infelicity in the wording. The second paragraph says that ‘in most cases where a young person lack capacity, decisions will be taken on their behalf by their parent.’ Strictly, as he pointed out, the decision is not taken by the parent on the young person’s behalf. Rather, it is taken by the parent in their capacity as the alternative person and in the young person’s best interests.

16. There is an extra consideration for a young person who is aged 16 or 17. These persons are still children for the purposes of the Children Act 1989 and their parents retain parental responsibility. Section 27(1)(g) of the 2005 Act preserves that responsibility, except for property matters. Regulation 65 of the 2014 Regulations provides that regulation 64 applies despite section 27, but that does not deprive the parents of their responsibility generally.

17. Mr Small did not pursue any argument that the provisions of the 2014 Act or the 2014 Regulations involved a deprivation of liberty for the purposes of the 2005 Act or an infringement of the young person’s Convention rights. Mr Wolfe drew my attention to authority that identifying a school in a plan would not involve a breach of the person’s Article 8 right. In CB v London Borough of Merton and the Special Educational Needs Tribunal [2002] ELR 441, the tribunal accepted the local authority’s argument that the child should be placed in a residential school. Sullivan J at [20] rejected the argument that this infringed the child’s Article 8 rights. The tribunal had not ordered the child to attend the school. That was a matter for the local authority if it decided to serve a school attendance order. Any challenge would then relate to that order, not to the tribunal’s decision to name the school. And in X County Council v DW [2005] EWHC 162 (Fam), Munby J said at [20] that the decision of a tribunal on placement did not oblige a parent to accept that decision and were free to make other arrangements. These authorities are consistent with section 42 of the 2014 Act, which requires the local authority to secure the specified special educational provision, unless the young person makes suitable alternative arrangements.

If the young person’s capacity is in doubt

18. This analysis is concerned with the capacity to bring an appeal. If that issue arises, the most efficient way to resolve it may be as a preliminary issue that the tribunal will have to decide before it identifies the correct parties: rule 5(3)(e) of rules of procedure for both the First-tier Tribunal and the Upper Tribunal.

Changes in capacity

19. If a young person’s capacity changes during the course of proceedings, the tribunal may substitute another party as appellant or respondent: rule 9 of each set of rules of procedure. A young person who was the appellant before the First-tier Tribunal but lacks capacity before the Upper Tribunal will nevertheless be a party before the Upper Tribunal (see the definition of ‘respondent’ in rule 1(3) of the Upper Tribunal’s rules) until a substitution is effected under rule 9.

Applying those principles

20. William was born on 19 November 1998. He is a young person and was the proper appellant in the First-tier Tribunal unless he lacked capacity.

21. When the appeal was lodged with the First-tier Tribunal, the grounds of appeal provided by William’s mother said that ‘it is submitted that William does not have litigation capacity.’ She added that, as the local authority had liaised directly with her throughout the preparation of the plan, ‘It therefore seems that the LA has accepted that William does not have capacity to deal with this issue himself.’

22. The tribunal notified the local authority that ‘William … has appealed to the Tribunal’. The local authority’s response to the appeal argued that William was the correct appellant. It said that his parents had not submitted any evidence to suggest that ‘William lacks mental capacity to bring the appeal or to understand the appeal which has been lodged.’ A registrar allowed time for a response to that argument. The response argued:

· It was not submitted that William lacked capacity generally.

· He lacked capacity to be able to conduct proceedings in view of his impaired cognitive ability and communication difficulties.

· The appeal was properly brought by his mother on his behalf.

· There had been no formal assessment of his capacity, but the tribunal could use its expertise to determine the issue.

· Alternatively, William’s mother should be allowed to advance the appeal on his behalf.

23. The local authority did not reply to that submission and, on 8 September 2015, a registrar decided that William was correctly identified as the appellant. He added that, if the local authority disagreed, it could raise the matter as a preliminary issue. On 16 September 2015, a different registrar noted that it was appropriate for the parent to advance the appeal on William’s behalf.

24. William is assumed to have capacity. There is no evidence to show that he does not. He has mental and communication difficulties, but the evidence is not directed to his capacity to understand an appeal. The most telling evidence is from William himself in a statement of November 2015. Mr Small was sceptical about that statement. To me, as I said at the hearing, it had the ring of truth, making allowance for the fact that it had been tidied up by the lawyers, as all witness statements are. It shows that William understood the essence of what the appeal was about – his education and his placement.

25. There is no evidence that all practical steps have been taken to help him make a decision but without success. Assuming that he had some help in writing his statement, which is likely, that assistance did allow him to understand the essence of what the proceedings were about.

26. My conclusion is that the statutory assumption of capacity was not displaced and the case was properly registered with William as appellant. There is, moreover, this practical consideration, that there is no evidence to suggest any difference of view between William and his mother. The formal registration and identification of the appellant did not make any practical difference in this case. William needed help to present his case and his mother would provide that help, with the assistance of solicitors, whether the appellant was William himself or his mother as the alternative person.

27. The Upper Tribunal registered William’s mother as the respondent. That was not correct. However, the matter has been in issue throughout the proceedings and I have never formally identified the correct person. The position before me is as it was before the First-tier Tribunal. There is no evidence to displace the statutory assumption of capacity. William is the correct respondent and I have so named him, in anonymised form.

Terminology and expertise

28. There are two final matters I wish to mention.

29. First, both William’s solicitors and the registrars used the expression ‘on behalf of’ William. I accept Mr Wolfe’s argument on the inappropriateness of that expression. It is potentially ambiguous between a parent being a party in the capacity of an alternative person and being an assistant or a representative in the advocacy sense. In the context of the registrar’s decisions, they were using it in the latter sense.

30. Second, William’s solicitors referred to the tribunal’s expertise to determine whether he had capacity. We often talk about a tribunal’s expertise, sometimes too loosely. We need to identify what that expertise consists of and where it resides. In the case of capacity, it is more likely to reside in the members of the panel than in the judge, the registrar or (under the current delegation pilot project) the caseworker. It is the contribution of the members that qualifies the decisions to which they contribute for respect in relation to capacity issues.

F. The First-tier Tribunal’s decision

The tribunal’s reasons

31. This is the outline of the tribunal’s reasons. After a review of evidence, the tribunal set out its conclusions.

· On William’s physical difficulties, the tribunal accepted the evidence of the physiotherapist, Dr Epps, and the Occupational Therapist, Ms Jones.

· It was agreed that William had significant speech and language difficulties and needed to improve his communication skills.

· Speech and Language Therapy was also required.

· These all needed to be co-ordinated and generalised into his teaching and accommodated by the educational timetable. This was not realistic at HC.

· Monitoring his physical needs could only be secured at TC.

· A waking day curriculum was required to implement the therapies.

· This could all be delivered in class at TC.

· William’s peers at HC would, with a single exception, not have physical difficulties. They would have generic special needs.

· HC relied on external provision for therapies, which had proved problematic in the past.

· The educational psychologist, Dr Urani, recommended a waking day curriculum.

· The tribunal took account of section 19(d) of the 2014 Act and the parental preference provision under section 9 of the Education Act 1996. Section 39 of the 2014 Act applied. ADD

G. The argument for the local authority

32. In his grounds of appeal, Mr Small argued that:

· First, the tribunal failed to explain why a waking day curriculum was needed.

· Second, it was wrong to find that the therapies could not be provided by HC.

· Third, it was wrong to find that HC was not set up to deal with the extent and breadth of difficulties that William has.

At the hearing, Mr Small showed me the final version of William’s plan as approved by the tribunal. He drew my attention to the limited time devoted to therapies and to the small number of teaching hours around which they had to be fitted. He argued that the tribunal’s reasoning was inconsistent.

H. The argument for William

33. Mr Broach argued that:

· On the first ground, this was a reasons challenge. The tribunal had found the therapies that William required and that these included physical support throughout the day. It had noted Dr Urani’s opinion.

· On the second ground, there was evidence to support the tribunal’s conclusion. It rejected the evidence from HC that it could embed the therapies in the school day. William would have to leave his class for therapy at TC, but the local authority had not challenged its suitability.

· On the third ground, this was a decision of a specialist tribunal that had ample expert evidence to support its conclusion.

I. Why the tribunal was not in error of law

34. One issue for the First-tier Tribunal was whether HC was suitable. The local authority had accepted that TC was suitable. As a matter of law, the tribunal had to identify a suitable placement; it was not limited to choosing between the institutions put forward by the parties. As a practical matter, the arguments before the tribunal presented the case as being whether HC was suitable.

35. The tribunal found that HC was not suitable. It explained why in its reasons from paragraph 19. In summary, the therapies would be delivered separately from the lessons and William would need to be withdrawn from lessons (some of which lasted for two hours) for extended breaks. This would disrupt his education and could leave him ‘out of synchronisation with his peers.’ HC could not provide ‘effective physical support throughout the day to aid learning.’ Only one other pupil at HC would have mobility problems. There was no evidence on the numbers with physical problems and there had been problems in the past in funding support for pupils from other boroughs.

36. Mr Small’s second and third grounds challenge this part of the tribunal’s reasoning. They contain a myriad of individual points. There may be merit in some of them, but they do not amount to an error of law. Overall I consider that the tribunal has given adequate reasons for finding that HC was not suitable. HC may have been committed to making appropriate arrangements, but the evidence showed that it had proved difficult in the past when pupils came from other boroughs. It seems to me that the facilities described in the evidence did not meet William’s needs. Just to take one small point: the therapies would be delivered in a spare room the suitability of which had not been checked. Finding HC suitable would have involved a risk that the tribunal was right not to take. Mr Small’s points also fail to give sufficient significance to the need for integration which would be a feature of TC, especially ‘the methods of support [for William] that would be integrated in the lessons’, as Mr Broach put it.

37. Given the tribunal’s conclusion that HC was not suitable, it had to decide on the provision of a waking day curriculum. The tribunal relied in particular on the evidence of Dr Epps, describing her as ‘a persuasive witness’ who ‘had a detailed understanding of [William’s] needs and produced a comprehensive and compelling report.’ It must be taken to adopt her reasoning. She had the benefit of seeing how the waking day curriculum currently benefited William, saying that it ‘gives him the continuity and meaningful repetition he requires to acquire the physical and communication skills that will impact on his academic achievements, his participation in and empowerment in directing all areas of his life to give him maximum control and autonomy as an adult.’

38. Mr Small’s first ground challenged this part of the tribunal’s reasoning. As with his other grounds, the need for co-ordination and integration is essential to understand the tribunal’s finding on a waking day curriculum. Mr Small’s detailed criticisms of the tribunal’s reasoning and the special educational provision it ordered do not take sufficient account of the fact that the essence of this provision, especially a waking day curriculum, was in place already and the evidence allowed the tribunal to assess its value in operation rather than theoretically. There was ample evidence to justify the tribunal making its finding. It was working.

39. Mr Small criticised the provision identified by the tribunal as lacking precision. I would have had more sympathy for that argument were it not for the fact that William is currently at TC, working to a waking day curriculum, with the essence of the co-ordinated, integrated and monitored approach in place. That language may appear to lack precision, but it is obviously sufficiently precise to be implemented.

40. For those reasons, I find no error of law in the tribunal’s reasoning.

Signed on original
on 25 May 2016

Edward Jacobs
Upper Tribunal Judge

appendix 1
The legislation

Mental Capacity Act 2005 – the 2005 Act

1 The principlesE+W

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

2 People who lack capacityE+W

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to—

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5) No power which a person (“D”) may exercise under this Act—

(a) in relation to a person who lacks capacity, or

(b) where D reasonably thinks that a person lacks capacity,

is exercisable in relation to a person under 16.

(6) Subsection (5) is subject to section 18(3).

3 Inability to make decisionsE+W

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision.

16 Powers to make decisions and appoint deputies: general

(1) This section applies if a person (P) lacks capacity in relation to a matter or matters concerning-

(a) P’s personal welfare;

(b) P’s property and affairs.

(2) The court may-

…

(b) appoint a person (a deputy) to make decisions on P’s behalf in relation to the matter or matters.

27 Family Relationships etc

(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person-

…

(g) discharging parental responsibilities in matters not relating to a child’s property; …

Parental responsibilities are defined by section 3 of the Children Act 1989 and only apply to persons who are children, as defined in section 105 of that Act:

3 Meaning of ‘parental responsibility’

(1) In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property

105 Interpretation

(1) In this Act-

…

‘child’ means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen; …

[Schedule 1 deals with financial provision for children.]

Children and Families Act 2014 – the 2014 Act

19 Local authority functions: supporting and involving children and young peopleE+W

In exercising a function under this Part in the case of a … young person, a local authority in England must have regard to the following matters in particular—

(a) the views, wishes and feelings of … the young person;

(b) the importance of … the young person participating as fully as possible in decisions relating to the exercise of the function concerned;

(c) the importance of … the young person being provided with the information and support necessary to enable participation in those decisions;

(d) the need to support … the young person in order to facilitate the development of the … young person and to help him or her achieve the best possible educational and other outcomes.

20 When a child or young person has special educational needsE+W

(1) A … young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.

(2) … a young person has a learning difficulty or disability if he or she-

(a) has a significantly greater difficulty in learning than the majority of others of the same age, or

(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

21 Special educational provision, health care provision and social care provisionE+W

(1) ‘Special educational provision’, for … a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—

…

36 Assessment of education, health and care needsE+W

(1) A request for a local authority in England to secure an EHC needs assessment for a … young person may be made to the authority by … the young person … .

(2) An ‘EHC needs assessment’ is an assessment of the educational, health care and social care needs of a … young person.

(3) When a request is made to a local authority under subsection (1), or a local authority otherwise becomes responsible for a … young person, the authority must determine whether it may be necessary for special educational provision to be made for the … young person in accordance with an EHC plan.

(4) In making a determination under subsection (3), the local authority must consult … the young person.

(5) Where the local authority determines that it is not necessary for special educational provision to be made for the … young person in accordance with an EHC plan it must notify … the young person—

(a) of the reasons for that determination, and

(b) that accordingly it has decided not to secure an EHC needs assessment for the … young person.

(6) Subsection (7) applies where—

(a) no EHC plan is maintained for the … young person,

(b) the … young person has not been assessed under this section or section 71 during the previous six months, and

(c) the local authority determines that it may be necessary for special educational provision to be made for the … young person in accordance with an EHC plan.

(7) The authority must notify … the young person—

(a) that it is considering securing an EHC needs assessment for the … young person, and

(b) that the … young person has the right to—

(i) express views to the authority (orally or in writing), and

(ii) submit evidence to the authority.

(8) The local authority must secure an EHC needs assessment for the … young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(a) the … young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the … young person in accordance with an EHC plan.

(9) After an EHC needs assessment has been carried out, the local authority must notify … the young person of—

(a) the outcome of the assessment,

(b) whether it proposes to secure that an EHC plan is prepared for the … young person, and

(10) In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.

(11) Regulations may make provision about EHC needs assessments, in particular—

(a) about requests under subsection (1);

(b) imposing time limits in relation to consultation under subsection (4);

(d) about expressing views and submitting evidence under subsection (7);

(e) about how assessments are to be conducted;

(f) about advice to be obtained in connection with an assessment;

(g) about combining an EHC needs assessment with other assessments;

(h) about the use for the purposes of an EHC needs assessment of information obtained as a result of other assessments;

(i) about the use of information obtained as a result of an EHC needs assessment, including the use of that information for the purposes of other assessments;

(j) about the provision of information, advice and support in connection with an EHC needs assessment.

37 Education, health and care plansE+W

(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a … young person in accordance with an EHC plan—

(a) the local authority must secure that an EHC plan is prepared for the … young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.

(2) For the purposes of this Part, an EHC plan is a plan specifying—

(a) the … young person's special educational needs;

(b) the outcomes sought for him or her;

(d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

(e) in the case of … a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act);

(f) any social care provision reasonably required by the learning difficulties and disabilities which result in the … young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).

(3) An EHC plan may also specify other health care and social care provision reasonably required by the … young person.

(4) Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans.

(5) Regulations under subsection (4) about amendments of EHC plans must include provision applying section 33 (mainstream education for children and young people with EHC plans) to a case where an EHC plan is to be amended under those regulations.

39 Finalising EHC plans: request for particular school or other institutionE+W

(1) This section applies where, before the end of the period specified in a notice under section 38(2)(b), a request is made to a local authority to secure that a particular school or other institution is named in an EHC plan.

(2) The local authority must consult—

(a) the governing body, proprietor or principal of the school or other institution,

(b) the governing body, proprietor or principal of any other school or other institution the authority is considering having named in the plan, and

(c) if a school or other institution is within paragraph (a) or (b) and is maintained by another local authority, that authority.

(3) The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

(4) This subsection applies where—

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

(5) Where subsection (4) applies, the local authority must secure that the plan—

(a) names a school or other institution which the local authority thinks would be appropriate for the child or young person, or

(b) specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person.

(6) Before securing that the plan names a school or other institution under subsection (5)(a), the local authority must (if it has not already done so) consult—

(a) the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and

(b) if that school or other institution is maintained by another local authority, that authority.

(7) The local authority must, at the end of the period specified in the notice under section 38(2)(b), secure that any changes it thinks necessary are made to the draft EHC plan.

(8) The local authority must send a copy of the finalised EHC plan to—

(a) the child's parent or the young person, and

(b) the governing body, proprietor or principal of any school or other institution named in the plan.

42 Duty to secure special educational provision and health care provision in accordance with EHC PlanE+W

(1) This section applies where a local authority maintains an EHC plan for a … young person.

(2) The local authority must secure the specified special educational provision for the … young person.

(3) If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the … young person.

(4) ‘The responsible commissioning body’, in relation to any specified health care provision, means the body (or each body) that is under a duty to arrange health care provision of that kind in respect of the … young person.

(5) Subsections (2) and (3) do not apply if … the young person has made suitable alternative arrangements.

(6) ‘Specified’, in relation to an EHC plan, means specified in the plan.

51 AppealsE+W

(1) A … young person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (mediation).

(2) The matters are—

…

(b) a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the … young person in accordance with an EHC plan;

(i) the … young person's special educational needs as specified in the plan;

(ii) the special educational provision specified in the plan;

(iii) the school or other institution named in the plan, or the type of school or other institution specified in the plan;

(iv) if no school or other institution is named in the plan, that fact; …

(3) A … young person may appeal to the First-tier Tribunal under subsection (2)(c)—

(a) when an EHC plan is first finalised for the … young person, and

(b) following an amendment or replacement of the plan.

(4) Regulations may make provision about appeals to the First-tier Tribunal in respect of EHC needs assessments and EHC plans, in particular about—

(a) other matters relating to EHC plans against which appeals may be brought;

(b) making and determining appeals;

(d) unopposed appeals.

(5) Regulations under subsection (4)(c) may include provision conferring power on the First-tier Tribunal, on determining an appeal against a matter, to make recommendations in respect of other matters (including matters against which no appeal may be brought).

(6) A person commits an offence if without reasonable excuse that person fails to comply with any requirement—

(a) in respect of the discovery or inspection of documents, or

(b) to attend to give evidence and produce documents,

where that requirement is imposed by Tribunal Procedure Rules in relation to an appeal under this section or regulations under subsection (4)(a).

(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

77 Code of practiceE+W

(1) The Secretary of State must issue a code of practice giving guidance about the exercise of their functions under this Part to—

(a) local authorities in England;

(b) the governing bodies of schools;

(d) the proprietors of Academies;

(e) the management committees of pupil referral units;

(f) the proprietors of institutions approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval);

(g) providers of relevant early years education;

(h) youth offending teams;

(i) persons in charge of relevant youth accommodation;

(j) the National Health Service Commissioning Board;

(k) clinical commissioning groups;

(l) NHS trusts;

(m) NHS foundation trusts;

(n) Local Health Boards.

(2) The Secretary of State may revise the code from time to time.

(3) The Secretary of State must publish the current version of the code.

(4) The persons listed in subsection (1) must have regard to the code in exercising their functions under this Part.

(5) Those who exercise functions for the purpose of the exercise by those persons of functions under this Part must also have regard to the code.

(6) The First-tier Tribunal must have regard to any provision of the code that appears to it to be relevant to a question arising on an appeal under this Part.

80 Parents and young people lacking capacityE+W

(1) Regulations may apply any statutory provision with modifications, for the purpose of giving effect to this Part in a case where the parent of … a young person lacks capacity at the relevant time.

(2) Regulations under subsection (1) may in particular include provision for—

(a) references to a child's parent to be read as references to, or as including references to, a representative of the parent;

(b) references to a young person to be read as references to, or as including references to, a representative of the young person, the young person's parent, or a representative of the young person's parent;

(c) modifications to have effect in spite of section 27(1)(g) of the Mental Capacity Act 2005 (Act does not permit decisions on discharging parental responsibilities in matters not relating to a child's property to be made on a person's behalf).

(3) ‘Statutory provision’ means a provision made by or under this or any other Act, whenever passed or made.

(4) ‘The relevant time’ means the time at which, under the statutory provision in question, something is required or permitted to be done by or in relation to the parent or young person.

(5) The reference in subsection (1) to lacking capacity is to lacking capacity within the meaning of the Mental Capacity Act 2005.

(6) ‘Representative’, in relation to a parent or young person, means—

(a) a deputy appointed by the Court of Protection under section 16(2)(b) of the Mental Capacity Act 2005 to make decisions on the parent's or young person's behalf in relation to matters within this Part;

(b) the donee of a lasting power of attorney (within the meaning of section 9 of that Act) appointed by the parent or young person to make decisions on his or her behalf in relation to matters within this Part;

(c) an attorney in whom an enduring power of attorney (within the meaning of Schedule 4 to that Act) created by the parent or young person is vested, where the power of attorney is registered in accordance with paragraphs 4 and 13 of that Schedule or an application for registration of the power of attorney has been made.

Section 83(2) provides that young person ‘means a person over compulsory school age but under 25.’

Special Educational Needs and Disability Regulations 2014 (SI No 1530) – the 2014 Regulations

63 Where a child’s parent lacks capacity

In a case where a child’s parent lacks capacity at the relevant time references in—

(a) Part 3 of the Act, and

(b) these regulations, except the references in regulation 6(1)(b)(iv) and paragraph 15(b) of Schedule 2,

to a child’s parent or the parent of a detained person who is a child are to be read as references to a representative of the parent.

64 Where a young person lacks capacity

(1) In a case where a young person lacks capacity at the relevant time—

(a) references to a young person in the provisions of Part 3 of the Act listed in Part 1 of Schedule 3 are to be read as references to both the young person and the alternative person;

(b) references to a young person or a detained person who is a young person in the provisions of Part 3 of the Act listed in Part 2 of Schedule 3 are to be read as references to the alternative person instead of the young person; and

(c) references to a young person in these regulations listed in Part 3 of Schedule 3 are to be read as references to both the young person and the alternative person; and

(d) references to a young person in these regulations listed in Part 4 of Schedule 3 are to be read as references to the alternative person instead of the young person.

(2) For the purposes of this regulation, ‘the alternative person’ means—

(a) a representative of the young person;

(b) the young person’s parent, where the young person does not have a representative;

(c) a representative of the young person’s parent, where the young person’s parent also lacks capacity at the relevant time and the young person does not have a representative.

65 Mental Capacity Act 2005

Regulations 63 and 64 have effect in spite of section 27(1)(g) of the Mental Capacity Act 2005.

SCHEDULE 3

PART 1

References to a young person in the Act that are to be read as references to both a young person and an alternative person

The provisions referred to in regulation 64(1)(a) are—

section 19(a), (b), (c) and (d) (first reference); …

PART 2

References to a young person in the Act that are to be read as references to an alternative person

The provisions referred to in regulation 64(1)(b) are—

…

section 51(1) and (3) (opening words); …

PART 3

References to a young person in the Act that are to be read as references to both a young person and an alternative person

The provisions referred to in regulation 64(1)(c) are—

…

regulation 19(a); …

Appendix 2
the code of practice

Young people preparing to make their own decisions

8.13 As young people develop, and increasingly form their own views, they should be involved more and more closely in decisions about their own future. After compulsory school age (the end of the academic year in which they turn 16) the right to make requests and decisions under the Children and Families Act 2014 applies to them directly, rather than to their parents. Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so, and it is likely that parents will remain closely involved in the great majority of cases.

8.14 The specific decision-making rights about EHC plans (see Chapter 9) which apply to young people directly from the end of compulsory school age are:

• the right to request an assessment for an EHC plan (which they can do at any time up to their 25^th birthday)

• the right to make representations about the content of their EHC plan

• the right to request that a particular institution is named in their EHC plan

• the right to request a Personal Budget for elements of an EHC plan

• the right to appeal to the First-tier Tribunal (SEN and Disability) about decisions concerning their EHC plan

8.15 Local authorities, schools, colleges, health services and other agencies should continue to involve parents in discussions about the young person’s future. In focusing discussions around the individual young person, they should support that young person to communicate their needs and aspirations and to make decisions which are most likely to lead to good outcomes for them, involving the family in most cases. A decision by a young person in respect of an EHC plan will typically involve discussion with their family and others, but the final decision rests with the young person.

8.16 A young person can ask a family member or friend to support them in any way they wish, including, for example, receiving correspondence on their behalf, filling in forms, attending meetings, making telephone calls and helping them to make decisions. Local authorities and other agencies working with young people should work flexibly to accommodate these arrangements. They should also be flexible about accommodating any changes in those arrangements over time, since the nature of the family’s involvement may alter as the young person becomes older and more independent.

16- to 17-year-olds

8.17 Where a young person is under 18, the involvement of parents is particularly important and local authorities should continue to involve them in the vast majority of decisions. Schools and colleges normally involve the parents or family members of students under 18 where they have concerns about a young person’s attendance, behaviour or welfare and they should continue to do so. They should also continue to involve parents or family members in discussions about the young person’s studies where that is their usual policy. Child safeguarding law applies to children and young people up to the age of 18. The fact that the Children and Families Act 2014 gives rights directly to young people from the end of compulsory school age does not necessitate any change to a local authority’s, school’s or college’s safeguarding or welfare policy.

Support for young people

8.18 Some young people will need support from an independent skilled supporter to ensure that their views are acknowledged and valued. They may need support in expressing views about their education, the future they want in adult life, and how they prepare for it, including their health, where they live, their relationships, control of their finances, how they will participate in the community and how they will achieve greater autonomy and independence. Local authorities should ensure young people who need it have access to this support.

The Mental Capacity Act

8.19 The right of young people to make a decision is subject to their capacity to do so as set out in the Mental Capacity Act 2005. The underlying principle of the Act is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made or action taken on their behalf is done so in their best interests. Decisions about mental capacity are made on an individual basis, and may vary according to the nature of the decision. Someone who may lack capacity to make a decision in one area of their life may be able to do so in another. There is further guidance on the Mental Capacity Act and how it applies both to parents and to young people in relation to the Act in Annex 1, Mental Capacity.

Who can appeal to the Tribunal about EHC needs assessments and plans

11.44 Parents (in relation to children from 0 to the end of compulsory schooling) and young people (over compulsory school age until they reach age 25) can appeal to the Tribunal about EHC needs assessments and EHC plans, following contact with a mediation adviser in most cases (see paragraph 11.18). Young people can register an appeal in their name but can also have their parents’ help and support if needed. Chapter 8, paragraphs 8.15 to 8.18, gives further guidance on the rights of young people under the Children and Families Act 2014 and the involvement and support of parents.

Annex 1: Mental Capacity

Young people over compulsory school age have the right to participate in decisions about the provision that is made for them and be consulted about provision in their areas, although there is nothing to stop them asking their parents, or others to help them make the decision. However, some young people, and possibly some parents, will not have the mental capacity to make certain decisions. Provision is made in the Children and Families Act to deal with this. Under the Act, lacking mental capacity has the same meaning as in the Mental Capacity Act (MCA) 2005. A separate Code of Practice provides guidance on how the MCA works on a day-to-day basis. Professionals and anyone who is paid for the work they do with someone who lacks capacity has a duty to ‘have regard’ to that Code. The Code is available from the Ministry of Justice website – a link is given in the References section under Annex 1.

In cases where a person lacks mental capacity to make a particular decision, that decision will be taken by a representative on their behalf. The representative will be a deputy appointed by the Court of Protection, or a person who has a lasting or enduring power of attorney for the person. In the case of a young person who does not have such a representative, the decision will be taken by the young person’s parent. It is also likely that where a young person does have a representative, that representative will be the young person’s parent. Therefore in most cases, where a young person lacks capacity, decisions will be taken on their behalf by their parent. However, it is important that people are helped to make decisions themselves wherever possible.

The MCA sets out five key principles which must underlie everything someone does in relation to someone who may lack capacity to make some decisions. The five key principles are:

• It should be assumed that everyone can make their own decisions unless it is proved otherwise

• A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision

• A person should not be treated as lacking capacity just because they make an unwise decision

• Actions or decisions carried out on behalf of someone who lacks capacity must be in their best interests

• Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible

If there is doubt about a person’s mental capacity, consideration needs to be given as to whether the person lacks capacity to make that particular decision, as they may have capacity to make some decisions but not others. This does not necessarily mean that a person’s mental capacity has to be reassessed each time a decision needs to be taken. If there is a reasonable belief that the person lacks the capacity to make a decision based on prior knowledge of that person then the decision can be made by a parent or representative, as appropriate. Subject to the principles above, there are four key questions to consider in determining whether someone is able to make a decision:

• Can the person understand information relevant to the decision, including understanding the likely consequences of making, or not making the decision?

• Can they retain this information for long enough to make the decision?

• Can they use and weigh the information to arrive at a choice?

• Can they communicate their decision in any way?

If the answer to any of these questions is ‘no’ (bearing in mind that if an individual needs a lot of support to make and communicate a decision it does not mean they are incapable of making a decision) then the person lacks capacity to make that decision at that time.

The Special Educational Needs and Disability Regulations 2014 specify the particular occasions when a representative or parent has to act on behalf of a young person who lacks capacity or a representative if the child or young person’s parent lacks capacity.

There are some occasions when a local authority must take account of the views of the young person as well as any representative. These are when the local authority is:

• having regard to the views and wishes of a child, the child’s parent or a young person when carrying out its functions under Part III of the Act (Section 19)

• consulting children, their parents and young people when carrying out its duty to keep education and care provision for disabled children and young people and those with SEN under review (Section 27)

• publishing the comments of children, their parents and young people about its Local Offer and involving these people in preparing and reviewing the Local Offer (Section 30), and

• arranging for information and advice to be provided to children, their parents and young people and taking steps to make information and advice services known to those people (Section 32)

The Regulations also specify the following occasions when the local authority considers the views of the representative instead of the parent or young person. These are where the child’s parent or young person is:

• expressing their wishes, being notified, consulted and copied documents, agreeing or taking decisions in relation to needs assessments, re-assessments and EHC plans (Sections 33, 36, 38, 39, 40, 42 and 44)

• being admitted to special provision where they do not have an EHC plan (Section 34)

• requesting a Personal Budget (Section 49)

• appealing to the Tribunal (Section 51)

• participating in mediation and resolving disagreements (Sections 52, 53, 54, 55, 56 and 57)

• being consulted about making special educational provision otherwise than in a school or post-16 institution (Section 61)

• being informed that special educational provision is being made for them or their child (Section 68)

• similar provisions in relation to detained persons

Further advice about the MCA is available from the Ministry of Justice website – a link is given in the References section under Annex 1.