MM (as alternative person for C) v Royal Borough of Greenwich

Where there is good cause for concern that a young person lacks capacity to bring and conduct an Education, Health and Care Plan appeal, the First-tier Tribunal must address capacity. If the young person lacks capacity, it must appoint the prescribed alternative person under regulation 64, who conducts the appeal in the young person’s best interests.

Health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 are an integral part of a qualifying appeal. A completed local-authority or NHS assessment is not a precondition to recommendations. The Tribunal must assess the evidence before it, exercise its inquisitorial jurisdiction where appropriate, and give adequate reasons if it declines to recommend provision.

C was a 17-year-old young person with autism, global developmental delay and complex medical needs. His Education, Health and Care Plan was appealed to the First-tier Tribunal by C, with his mother described as assisting him.

The First-tier Tribunal determined the educational issues but declined to make health and social care recommendations. It considered that it could not do so without a completed transition-to-adult-care assessment.

On appeal, evidence established that C lacked capacity to conduct the litigation. The Upper Tribunal substituted his mother as his alternative person and considered whether the First-tier Tribunal had erred in its handling of capacity and of the requested health and social care recommendations.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside insofar as it concerned health and social care. The matter was remitted to the same Tribunal for an oral reconsideration.

2. The First-tier Tribunal erred by failing to identify that there was good cause for concern about C’s capacity to conduct the appeal. Capacity concerns the bringing and ongoing conduct of litigation, including the ability to make decisions and give instructions about the appeal. A tribunal must make respectful enquiries of representatives, but remains responsible for ensuring a fair hearing. Where a young person lacks capacity, regulation 64 of the Special Educational Needs and Disability Regulations 2014 requires appointment of the prescribed alternative person.

3. An alternative person conducts the appeal in the young person’s best interests. The First-tier Tribunal has no freestanding best-interests jurisdiction. However, if a parent acting as alternative person may be prejudicing the young person’s participation, the Tribunal must take that into account in case management and decision-making. It should first seek pragmatic measures to neutralise prejudice. The possibility of appointing a replacement litigation friend in an exceptional unfair case was obiter.

4. The Tribunal’s recommendation jurisdiction under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 is an equal part of a qualifying SEN appeal, although recommendations are not directly enforceable. It is inquisitorial. A completed social-care or healthcare assessment is evidence which may assist the Tribunal, not a jurisdictional precondition to recommendations.

5. The Tribunal irrationally, or without adequate reasons, treated the absence of a final transition plan as preventing healthcare recommendations. It failed separately to address the healthcare evidence and the requested provision. It also erred in treating an incomplete social-work assessment as preventing social-care recommendations, despite substantial evidence of C’s needs and the fact that parental non-co-operation should not itself obstruct assessment of the young person’s needs.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the health and social care parts of the First-tier Tribunal decision were set aside and remitted.
• First-tier Tribunal (Health, Education and Social Care Chamber): decision dated 18 September 2023. It decided the educational elements of the Education, Health and Care Plan but declined to make health and social care recommendations.