MM (as alternative person for C) v Royal Borough of Greenwich (Special Educational Needs): [2024] UKUT 179 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Stout on 17 June 2024.
Read the full decision in UA-2023-001777-HS
Judicial Summary
Education Health and Care Plan – Section 51, Children and Families Act 2014 – Capacity – Alternative person – regulation 64, Special Educational Needs and Disability Regulations 2014 (The Special Educational Needs and Disability Regulations 2014 (SI 2014/1530) – Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 (SI 2017/1306) – Health and social care recommendations
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. As his alternative person, his mother should have conducted the proceedings on his behalf in his best interests. 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 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 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.