Clarity from the Upper Tribunal about young people and EHCPs

The Children and Families Act 2014 created a new system of support for children and young people with special educational needs and disabilities (SEND). Two of the many changes made were:

1. Extending SEND support to the age of 25;
2. Creating the ‘right’ of appeal for “young people”, meaning a person over the age of 16 and under the age of 25.

The two new principles are very positive. However, we have found that they have caused significant difficulties as parents, local authorities and the Tribunal try to grapple with the new law.

Two cases, heard together, have now clarified the issues. Hillingdon v WW, was an appeal supported by SEND expert solicitors, Boyes Turner.

Buckinghamshire v SJ, was an appeal supported by specialist SEND legal charity, IPSEA. This article is prepared jointly by IPSEA and Boyes Turner to explain the importance of these cases.

These cases are decisions of the Upper Tribunal. In both Hillingdon and Buckinghamshire, the Special Educational Needs and Disability Tribunal (SENDIST) had upheld appeals. The local authorities were appealing against those decisions to the Upper Tribunal (UT).

Young people and capacity

The cases were heard together because they both raised the issue of mental capacity.

In Buckinghamshire, the young person lacked mental capacity. That was accepted. However, the local authority complained that it was not correct for the young person’s parents to pursue the appeal for them. The local authority decided not to pursue this complaint, although the UT did hear arguments from those representing the young person’s parents on this issue, and dealt with it fully in their decision even though it granted permission to the local authority withdraw this aspect of their appeal, the issue of capacity remained a live one in the appeal of Hillingdon.

In Hillingdon, the young person had cerebral palsy as a result of negligent medical treatment at birth. His cerebral palsy results in numerous complex disabilities. These meant that he would have significant difficulties in managing the appeal. The SENDIST appeal was in his name, but his parents advanced it on his behalf, with his knowledge and agreement. He dictated a witness statement to support the appeal. The local authority complained that the young person should have been more directly involved and suggested that SENDIST had failed to ensure that the young person was involved in the appeal.

The UT rejected Hillingdon’s arguments. The UT explained that the Children and Families Act provides for three situations:

1. A Young Person who has capacity

The UT held that this was the situation in Hillingdon. In this situation, the young person must bring the appeal. Their name must be on the appeal form as the person bringing the appeal. However, the UT recognised that parents will also have an important role.

The UT  accepted that there was no  evidence of any conflict between the young person and his parents, and it was thus reasonable and perfectly acceptable for his parents to be involved in giving him the help he needed to  advance his  appeal, including seeking legal advice from solicitors. The parents did so in their role as a “helper” in this situation.

The UT also highlighted that for young people aged 16 and 17, their parents will still have Parental Responsibility. That means that they have a statutory obligation to promote the young person’s best interests.

2. A Young Person who lacks capacity

If a young person lacks mental capacity, then someone else must bring the appeal for them. The person doing this is described as an “alternative person”. An alternative person can be a “representative”, or the young person’s parents.

A “representative” is a person who is appointed by the Court of Protection. In order to appeal for a young person as a “representative” the person would likely need to be a health and welfare deputy. Such a “representative” may well be the young person’s parent. If there is no “representative” then the parent automatically becomes the alternative person.

In Buckinghamshire, the young person’s parents were acting as the alternative person.

The UT also criticised the use of the phrase “acting on behalf of a young person” to describe a parent who may be involved in an appeal as potentially ambiguous and will not be appropriate to describe a parent who is acting as an alternative person.  They would be acting on their own behalf in their role as an alternative person, and they will be ‘substituted’ by the statutory provisions to become the appellant, albeit they would be acting in the best interests of the young person concerned.  A Young Person whose capacity changes

3. The young person’s capacity changes

In a situation where the capacity is in doubt, the Mental Capacity Act requires that there is a presumption for capacity. However, the UT has explained that it is possible to change who is bringing the appeal, after it has stated, making use of Rule 9 of the Tribunal Procedure Rules. This will be relevant if, after starting the appeal, capacity is assessed to have changed.

How to start an appeal

The UT has confirmed that, where there is doubt about capacity, it is for SENDIST to resolve. The UT stated that “Whether a person has capacity is a matter of fact for the Tribunal to decide.” Importantly, SENDIST will not decide whether a young person lacks capacity generally. However, SENDIST will decide, on the basis of expert evidence, ‘who’ should be bringing the appeal.

These cases tell us that it is very important to be clear about capacity from the outset.

If the young person has mental capacity, the role of their “helper” must be clearly explained. Hillingdon tells us that if there is no evidence of conflict between the helper and the young person, the helper can be involved in helping to advance the young person’s appeal.

If parents, or those supporting the young person, think that the young person lacks capacity, this matter will need to be drawn to the attention of SENDIST, so that they can, if necessary, resolve this question.  It may well be appropriate for a specialist mental capacity assessment to be sought in such circumstances. These can be carried out by a range of professionals, including medical professionals, psychologists and social workers. If this assessment finds a lack of capacity in relation to the proposed appeal, the report should be also be sent to SENDIST and an “alternative person” – usually parents – will bring the appeal.

What is ‘education’?

Buckinghamshire added very important understanding to the meaning of “education”.

Before an EHCP  can be prepared, a local authority must make an  EHC needs assessment. A local authority can refuse to make an EHC needs assessment and/or an EHCP when they are not necessary.

Local Authorities have been refusing to make EHC needs assessment, or issue EHCPs, on the basis that the young person is not capable of gaining further academic qualifications or that they have “completed their formal education” (meaning that they have finished attending school and don’t intend to pursue a college course).

Buckinghamshire is important, because the UT has provided some much-needed clarity in this area, and has specifically rejected any suggestion that ‘education’ can only encompass activity which leads to the acquisition of qualifications.  As Judge Jacobs put it in the decision:

“For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option.  That does not mean that they do not require or would not benefit from special educational provision” [paragraph 30]

Buckinghamshire involved a young person – Ryan – who has diagnoses of autistic spectrum disorder, hyperacusis, developmental co-ordination disorder and significant sensory processing difficulties. He requires a high level of support to complete self-care tasks.  He had a statement of special educational needs from 1999 until summer 2015, when he turned 18.

The Local Authority had carried out an EHC needs assessment of Ryan’s needs but decided that it was not necessary to issue an EHCP for him. The local authority expressed the view that: “remaining in formal education for a further period will not enable Ryan to make any significant progress and / or better achieve the transition to adult outcomes of gaining employment, living independently, participating in his community or maintaining good health”.

Ryan’s parents appealed the decision because he was not accessing support at the adult care home he had been placed in. SENDIST concluded that there was evidence that Ryan could make some progress and that he needed substantial extra support. SENDIST decided that an EHCP was necessary because Ryan was not accessing the support he required without one.

The LA appealed in Buckinghamshire in part, because there was little prospect of Ryan making significant progress in his learning.  The UT comprehensively rejected any such argument, and accepted that the SENDIST was entitled to find that Ryan could still benefit from educational provision.  As the UT noted:

“…any further achievements would be small. That does not mean that they would not be valuable for Ryan in his adult life.  The Tribunal found as a fact that it would and there was evidence to support that conclusion” [paragraph 31].

This effectively confirms that the wide definitions of ‘education’ and ‘educational provision’ which have long been accepted for those of school age will also apply to young people. The Code of Practice clearly outlines the need to ensure that young people are prepared effectively for adulthood including preparing them for employment, independent living, being healthy and participating in society. This might include, for some young people, education or training in independent living skills, communication skills or literacy and numeracy skills. However, this decision confirms the fact that for many young people, such skills will be as valuable as qualifications such as an A-Level or BTEC might be for another young person. If special educational provision is required in either case to support the education or training, then it may be necessary for the LA to issue such an EHC plan.

When might an EHC plan be ‘necessary’?

The UT has endorsed SENDIST’s approach of looking at the realities of the situation in which RJ was living, and recognising that without such a plan, the SEP he required would simply not be delivered. As Judge Jacobs put it:

“The tribunal was entitled to find that a plan was necessary. The tribunal had to decide that issue as a practical matter.  It may be that, theoretically, it might have been possible to achieve the outcomes through the care budget.  In reality that was not happening….Necessity has to be judged practically and in light of the reality, not by reference to attainments that are more theoretical than real.”  [paragraph 33]

The situation of a young person being placed in an adult care home with little or no educational or training activity actually taking place will be familiar to many parents.  This decision helpfully confirms that the ‘theoretical option’ of having a facility available is not enough, and if there is evidence that a young person needs special educational provision to achieve their outcomes, then an EHC plan may well be necessary for them if they will not get the therapies or provision without it.