This is a key case confirming the wide category of young people for whom an EHC plan might be necessary, and the fact that it is not limited to those studying for, or capable of attaining qualifications.

The case concerned a young man, Ryan, who had a range of special educational needs and disabilities, and was functioning at a pre-school level. He had previously had a Statement but the local authority had refused to issue him with an EHC plan, partly on the basis that he would not progress to further education, or gain qualifications or employment. The First-tier Tribunal had overturned this decision and the local authority appealed.

The Upper Tribunal rejected “any suggestion that the attainment of qualifications is an essential element of education. 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”. 

The issue in this case was whether the provision needed should be delivered in a care environment or an educational one. It was accepted that there may be cases in which a young person is not going to achieve anything if education continues. However, the Upper Tribunal stated that:

“Ryan’s parents believed that he could learn more if appropriate provision were made. They based that on what they had seen when Ryan was at his last school; there was evidence that his teachers there had been of the same opinion. The local authority’s own educational psychologist was of the same view. Why else would she say that Ryan needed a learning environment? It is true that Ryan was functioning only at a pre-school level. That meant, no doubt, that 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’. 

On that basis, the First-tier Tribunal had been entitled to find that a plan was necessary.

The case also addresses how tribunals should deal with appeals where a young person does not have the mental capacity to conduct their own appeal. It was heard alongside another case, London Borough of Hillingdon v WW [2016] UKUT 253 (AAC), because both raised the issue of mental capacity.

The Upper Tribunal explained that the Children and Families Act 2014 provides for three situations:

1. A young person who has capacity

The Upper Tribunal held that this was the situation in London Borough of Hillingdon v WW. 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 Upper Tribunal recognised that parents will also have an important role.

Here, 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 Upper Tribunal 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 the mental capacity to make decisions in relation to an appeal, then someone else must bring the appeal for them. This was the case in Buckinghamshire County Council v SJ. The person doing this is described as an “alternative person”. An alternative person can be a “representative”, or the young person’s parent(s).

A “representative” is a person who is appointed by the Court of Protection. 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 Upper Tribunal 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. 

3. The young person’s capacity changes

It is possible to change who is bringing the appeal, after it has started, using Rule 9 of the Tribunal Procedure Rules (available on the First-tier Tribunal’s website. This will be relevant if, after starting the appeal, capacity is assessed to have changed.

 

The full case report for Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC) can be viewed online.

For more information, see our sections on what to do if the local authority takes away your plan; appealing to the SEND Tribunal; and young people aged 16 to 25.