Tribunal “erred in law” by failing to recognise young person lacked capacity to litigate and failing to appoint his mother as alternative person

An Upper Tribunal judge has ruled that the First-tier Tribunal “erred in law” by failing to recognise that a young person lacked capacity to litigate and consequently his mother should have been appointed as his alternative person.

In MM (as alternative person for C) v Royal Borough of Greenwich, Upper Tribunal Judge Stout also found the tribunal erred in law by refusing to make recommendations as to healthcare needs and provision in Sections C and G of the boy’s  Education, Health and Care (EHC) plan, and refusing to make recommendations as to social care needs and provision in Sections D and H.

She said: “The Tribunal erred in law by regarding itself as 'unable' to make recommendations because a social care assessment had not been completed by the local authority.”

The case, which as been remitted to the FTT for reconsideration, concerned a young person (C) with diagnoses of Autism Spectrum Disorder (ASD), global developmental delay and complex medical conditions. C was 17 years old at the time of the FTT decision under appeal.

C has for many years had an EHCP made and maintained by the local authority under Part 3 of the Children and Families Act 2014.

Prior to July 2022, C attended a special school, but he was withdrawn from that school by his mother (MM) and provided with online education at home.

C was from December 2019 recognised as a ‘child in need’ by the local authority, and social care provision had been made for him.

In January 2022, the respondent’s social services took the view that certain actions of C’s mother had put C at risk of harm and a Child Protection Plan was put in place.

With effect from 6 September 2022, C’s EHCP was amended by the local authority naming a different special school. The EHCP also included healthcare and social care provision.

On 24 November 2022, an appeal against that EHCP was lodged with the First-tier Tribunal.

Upper Tribunal Judge Stout said: “C was then aged 16 and was over compulsory school age, so by virtue of s 51(1) of the Children and Families Act 2014 (read together with the definition of “young person” in s 83(1) and “compulsory school age” in s 8 of the Education Act 1996), if he had the necessary capacity, it was he and not his mother who had the right of appeal to the Tribunal.”

The application form was completed with C’s name as the appellant, his mother’s name as his ‘advocate to support him in expressing his views’ and a named representative from Coram Children’s Legal Centre.

The appeal was against the specification of C’s special educational needs and provision in Sections B and F of the EHCP and the school named in Section I.

Recommendations were sought under the 2017 Regulations in respect of C’s health and social care needs to be specified in Sections C and D and the provision to meet those needs in Sections G and H.

The First-tier Tribunal’s final decision was issued on in September 2023 following a hearing earlier that month.

On Health care needs and health provision (Sections C and G), the First Tier Tribunal said: “We were invited to consider making recommendations in relation to Health Care needs on the papers. We find that we are unable to do that without having sight of the transition to adult care plan.”

The tribunal added: “We heard from [the council’s social worker] on 8 August that she had been working with C since September 2022. She stated that there had been some issues with the allocated social worker and she was brought in to do a transition assessment given C’s age. She stated that she had had difficulties coordinating with MM to do the assessment because she was not available. She stated that she had completed part of the assessment and was waiting for MM’s views in response, as well as C’s views.”

The tribunal concluded it was “unable” to make health and social care recommendations because the social care assessment had not been completed by the local authority.

The First-tier Tribunal’s decision recorded the appeal as having been brought by C, “assisted by” his mother.

His mother applied for permission to appeal. First-tier Tribunal Judge McCarthy, refusing permission, noted that his mother was “not a party or a representative in the appeal” and that “in the absence of confirmation from C that he has appointed his mother as his representative, there is a question about whether the application is properly made”.

Upper Tribunal Judge Stout granted permission to appeal on the papers on the four grounds of appeal.

In doing so, she noted: “I am concerned that the First-tier Tribunal in this case has recorded in its decision that the appeal is brought by the appellant.... “assisted by his mother” without having apparently made any determination as to whether the appellant has capacity to bring and conduct the appeal or not.

“[…] The reasons why I am satisfied that good cause for concern about the appellant’s capacity arise such that this issue needs to be considered are: (i) because of his special educational needs as they are described in the limited documentation I currently have before me; and, (ii) because the Moving to Adulthood Needs Assessment for the appellant started on 26 June 2023 indicates that social workers are concerned that the appellant may not have capacity to decide where he wants to live. The decisions required to conduct litigation are arguably more demanding than making a decision about where to live.”

The four grounds of appeal were as follows:

• Ground 1: The First-tier Tribunal’s conclusion that it could not make recommendations about health care provision was irrational or perverse, alternatively it lacked adequate reasons;
• Ground 2: The First-tier Tribunal’s conclusion that it could not make recommendations about social care provision was irrational or lacked adequate reasons;
• Ground 3: If further evidence was required, the First-tier Tribunal unlawfully failed to give effect to the obligations on it as an inquisitorial tribunal and/or failed to comply with the overriding objective;
• Ground 4: The First-tier Tribunal unlawfully failed to consider or determine the issue of C’s capacity to litigate the appeal.

Considering ground 4 first, the Upper Tribunal judge said: “In some cases, the Tribunal may find that it is possible simply to ignore any prejudicial aspect of a parent’s conduct so that it has no adverse effect on the young person. Alternatively, the Tribunal might be able to afford an opportunity for any prejudice to be remedied.

“For example, in this case, potentially, time could have been allowed at the hearing for MM to put forward her views on the transition plan and for the local authority’s social worker to respond. I do not suggest that this was the only legitimate way forward in this case. It is merely an example of a step that might have been taken.”

She added: “What is important, and what makes the Tribunal’s error in failing to identify the capacity issue and appoint MM as alternative person a material error in this case, is that the Tribunal was as a result unable to take into account the fact of C not having capacity and MM’s duties as alternative person when deciding how to deal with the health and social care part of this appeal. As a result of its legal error, the Tribunal failed to take into account that MM should have been conducting the appeal as C’s alternative person on his behalf in his best interests and, where circumstances were such that it appeared she may not have done so, it should have considered the nature and extent of any such failing and taken that into account in deciding how to case manage and how to dispose of the proceedings.”

Turning to grounds 1, 2 and 3, the Upper Tribunal judge noted that the grounds of appeal were each concerned with whether the Tribunal erred in law in deciding it was “unable” to make recommendations in respect of health and social care given that the transition plan had not been completed.

On Ground 1, she considered that it was “irrational” for the Tribunal to conclude that it was unable to make recommendations in relation to healthcare without having seen the final transition plan or, at least, it “failed to give adequate reasons for why it was unable to do so in this case.”

On Ground 2, (social care), Judge Stout concluded it was an error of law for the tribunal to state that it was “unable to make recommendations in the absence of the social work assessment”.

She said: “It is true that the local authority must normally carry out an assessment before making any social care provision - the local authority has power to carry out an assessment before providing services for a child, and must normally carry out an assessment following the ‘Working Together to Safeguard Children’ guidance; it also has statutory duties to carry out assessments for young people likely to transition to adult services and for adults who may be in need under section 9 CA 2014. However, the Tribunal is not required to carry out an assessment, or to ensure that an assessment has been carried out, before it can make recommendations for social care provision under the 2017 Regulations.”

She added: “MM’s lack of co-operation should not have been treated by the local authority as an obstacle to completing the assessment for C. That was a relevant factor that in this case should have pointed the Tribunal towards making recommendations rather than against making recommendations as by doing so it reinforced the legally erroneous approach taken by the local authority.

“[…] I find that in this case the Tribunal misdirected itself in law, failed to take into account relevant factors, and gave inadequate reasons for its decision not to make social care recommendations.”

In light of her conclusions on Grounds 1 and 2, Upper Tribunal Judge Stout found she did not need to decide ground 3. She said: “I make only these observations: In principle, I accept Mr Greaves’ submission [on behalf of the local authority] that it is only necessary for a Tribunal to address expressly in its reasons why it has or has not decided to exercise its inquisitorial jurisdiction to adjourn ‘when the occasion arises’.

“However, given that the Tribunal in this case had decided that it was not going to deal with a significant part of the appeal because it considered that it did not have the evidence to do so, the ‘occasion’ had plainly arisen and it was in my judgment incumbent on the Tribunal to raise this problem with the parties, consider any submissions they wished to make as to the appropriate course, and to address expressly in its reasons why it had decided to conclude the case rather than either inviting the parties to give further evidence at the hearing or adjourning the matter again.”

Allowing the mother’s appeal, the Upper Tribunal judge concluded that the Tribunal materially erred in law by:

a. Failing to identify that an issue arose as to C’s capacity, failing to carry out a capacity assessment and failing to appoint MM as C’s alternative person;

b. Refusing to make recommendations as to healthcare needs and provision in Sections C and G of the EHCP;

c. Refusing to make recommendations as to social care needs and provision in Sections D and H of the EHCP.

She said: “The First-tier Tribunal erred in law by failing to recognise that C was a young person who lacked capacity to litigate and thus that his mother should have been appointed as his alternative person under regulation 64 of the Special Educational Needs and Disability Regulations 2014.

“The First-tier Tribunal also erred in law by failing to make health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017. The Tribunal erred in law by regarding itself as “unable” to make recommendations because a social care assessment had not been completed by the local authority.”

The judge remitted the case for reconsideration.

Lottie Winson