Case overview

The SEND Tribunal ordered a local authority (LA) to issue a young person with an education, health and care (EHC) plan after the LA  had refused to. The LA disagreed with the SEND Tribunal and appealed to the Upper Tribunal.

The LA argued the young person would not move on to further education, get qualifications or start employment, and that his provision should be delivered in a care environment rather than an educational one.

The LA’s appeal was dismissed because the Upper Tribunal rejected any suggestion that achieving qualifications is an essential element of education. Some children and young people with special educational needs may have different goals and qualifications may not be an option for them. This  does not mean they do not require, or would not benefit from, special educational provision.

The Upper Tribunal said that in this case whilst further achievements may be small, this does not make them less valuable and there had been evidence to confirm the young person needed a ‘learning environment’. 

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

What does this mean?

When an EHC plan may be necessary

This is a key case confirming the wide category of children and young people for whom an EHC plan might be necessary.  It is not limited to those who are studying for, or capable of, getting qualifications.

Young people and mental capacity

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

If	Then
a young person who has capacity	the young person must bring their own appeal.  In London Borough of Hillingdon v WW, the Upper Tribunal recognised that parents will still have an important role. It was acceptable for this young person’s parents to be involved in giving him the help he needed with his appeal, including seeking legal advice from solicitors. The parents’ role here was as a “helper” 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 legal duty to promote the young person's best interests.
a young person lacks capacity	someone else must bring the appeal for them (this happened in Buckinghamshire County Council v SJ). The person bringing the appeal is described as an “alternative person”. An alternative person can be a “representative”, or the young person’s parent(s). It is not correct to describe an alternative person as ‘acting on behalf of a young person’, because the alternative person would be acting on their own behalf and would make the appeal in their own name (although they would be acting in the best interests of the young person concerned).
a 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 SEND Tribunal’s website). If there is a disagreement between the parties about capacity, the SEND Tribunal can decide it.

 

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

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