Upper Tribunal cases – capacity, the need for an EHC Plan and transport

July 8th, 2016 by Rachel Kamm

This blog has been slow to report on three Upper Tribunal cases about the capacity of young people to bring SEN appeals, the need for an EHC Plan, and home-school transport. Anyone would think that there had been some legal and political distractions recently. 

First up is a pair of judgments from Judge Jacobs about capacity – Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC) and London Borough of Hillingdon v WW [2016] UKUT 253 (AAC). In each judgment, Judge Jacobs sets out a comprehensive summary of how issues of capacity may arise in SEN proceedings and the consequences of a young person having or not having capacity to litigate:

  • In the first case, Ryan was 20 years old. His parents appealed to the First-tier Tribunal against the Council’s decision not to make an EHC Plan. The First-tier Tribunal registered the appeal in his parents’ names and directed the Council to issue an EHC Plan. The Council appealed to the Upper Tribunal and initially raised the question of Ryan’s lack of capacity to litigate, but subsequently conceded that the Tribunal had not made any error of law in this respect. Judge Jacobs agreed. He observed that whether or not a young person had capacity to appeal was a matter of fact for the First-tier Tribunal. In this case, the Tribunal had been right to register the appeal in the names of his parents, who had a right of appeal in their own right and had exercised it in Ryan’s best interests.
  • In the second case, William was 17 years old. His mother sent an appeal to the First-tier Tribunal about the placement named in his EHC Plan and she said that William did not have capacity to litigate. The Council argued that William was the proper appellant. It appealed to the Upper Tribunal against the First-tier Tribunal’s decisions about the special educational provision required and the placement. The Upper Tribunal observed that William’s parents still had general parental responsibility for him because he was only 17 years old. There was no evidence to displace the statutory assumption that William had capacity to bring the proceedings. Whilst there was no difference of opinion between William and his mother about the appeal and so in practice it did not matter in whose name the appeal was registered, William was the proper party to the proceedings.

The Buckinghamshire case also addresses the inter-relationship between the SEN legislation and adult social care. The Council had provided a place in an adult care home (instead of making an EHC Plan providing for further education or training). The Upper Tribunal found that the First-tier Tribunal was entitled to find that Ryan could still benefit from educational provision and that therapies would help in that context. It was not necessary to show that he would attain qualification. “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. Ryan was not taking advantage of the facilities and activities that were on offer at the care home and the staff had not succeeded in getting him involved. The evidence showed that Ryan spent his time in his room. As Mr Wolfe put it, the issue was not about what Ryan needed but about access to it. Necessity has to be judged practically and in light of the reality, not by reference to attainments that are more theoretical than real. He cited two decisions in support of the proposition that a plan may be necessary in order to ensure access to provision: Manchester City Council v JW [2014] ELR 304 at [30] and MC v Somerset County Council [2015] UKUT 461 (AAC) at [19] and [21]. They support the tribunal’s approach.” The Council’s appeal therefore failed.

Turning to school transport, in Staffordshire County Council v JM [2016] UKUT 246 (AAC) Judge Lane considered the extent to which the First-tier Tribunal, when considering an appeal against the contents of an EHC Plan, has jurisdiction to consider obligations to provide transport to the named school. The young person in question, H, was 21 years old and had an EHC Plan naming one institution. There was a dispute between H’s parents and the Council about the information that the parents should provide the Council about H’s transport needs and whether the Council had an obligation to provide transport to the named school. The Upper Tribunal confirmed that transport is not neither a special educational need nor special educational provision. Transport arrangements will be relevant in a SEN appeal if the Tribunal is comparing two potential placements (where, for example, the costs comparison will take into account any transport costs). However, in this case the Tribunal was considering one school only and therefore there was no comparison exercise to undertake. Further, there was no right of appeal to the First-tier Tribunal against the Council’s decisions in respect of school transport. Despite the fact that the Tribunal had had no jurisdiction to consider the issue, the Upper Tribunal went on to give some helpful guidance on home-school transport obligations for over 19s. James Goudie QC represented the Council.

Rachel Kamm, 11KBW, @kamm11KBW 

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