The SEND Tribunal and litigation capacity

An Upper Tribunal decision provides useful guidance on the conduct of proceedings before the Special Educational Needs and Disability Tribunal (SEND) where an issue of litigation capacity arises in relation to the young person concerned. It also provides some helpful practice points concerning the SEND Tribunal’s jurisdiction under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 to make health and social care recommendations.

This comprehensive decision from the Upper Tribunal concerns a young person (C) with autism, global development delay and complex medical conditions. The appeal raised issues as to the proper handling of cases involving young persons who lack capacity to litigate and the First-tier Tribunal’s powers under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 to have regard to or await the completion of social care assessment by the local authority before making recommendations under those Regulations.

The Upper Tribunal Judge (UTJ) has set out a summary of the decision which we set out below.

Issue 1: Litigation capacity

The UTJ found that the First-tier Tribunal failed to recognise that C was a young person who lacked capacity to litigate and therefore his mother should have been appointed as his alternative person under regulation 64 of the Special Educational Needs and Disability Regulations 2014. C’s mother should have been conducting proceedings on behalf of C in his best interests.

In its summary of the decision, the Upper Tribunal gives guidance as to: “the approach the First-tier Tribunal should take to recognising and dealing with appeals where an issue as to capacity to litigate arises; appointment of an alternative person; the alternative person’s duty to act in the best interests of the person lacking capacity; the approach the First-tier Tribunal should take where concerns arise as to whether the alternative person is acting in the individual’s best interests; and, obiter, the power of the First-tier Tribunal to appoint a ‘litigation friend’ instead of a regulation 64 alternative person in an appropriate case."

The decision spotlights the importance of identifying and responding to a young person’s lack of litigation capacity and the need for tribunals and those that represent individuals to recognise when an individual lacks capacity as what follows at that stage can be complicated. The UTJ provides a road map of what a Tribunal should do in these circumstances.

We refer you to Alex Ruck Keene KC’s blog on the decision where he explains that the ‘messiness’ of the obligations on courts and tribunals is a live issue which is subject of discussion in the consultation paper Procedure for Determining Mental Capacity in Civil Proceedings Working Group where Alex is a consultant. 

Issue 2: The Overlap between Health and Social Care provision in an EHCP

The UTJ commented that in many cases there will be no overlap between health and social care provision and the absence of social care evidence will be irrelevant as to whether the Tribunal has the evidence before it to make health care recommendations. It further commented that sections C and G of an Education, Health and Care Plan (EHCP) are for the responsible commissioning health body and not the local authority. On this issue, the UTJ found the Tribunal had failed to make health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 because it regarded itself as “unable” to do so because a social care assessment had not been completed by the local authority.

In its decision, the Upper Tribunal gives guidance as to the nature of the First-tier Tribunal’s jurisdiction under the 2017 Regulations and its relationship to the health and social care frameworks.