The First-tier Tribunal had not erred in finding that an EHC Plan for a young person was necessary


Re: Buckinghamshire County Council v SJ (Special educational needs: Other) [2016] UKUT 254 (AAC)

The local authority challenged the decision of the First-tier Tribunal (FTT), which directed it to issue a plan making special educational provision for a young person, Ryan, with learning difficulties, under the Children and Families Act 2014, s 36. The local authority refused to make a plan as it did not accept that further formal education would enable him to make significant progress and/or better achieve the transition to adulthood outcomes.

The tribunal began by considering a preliminary issue surrounding the legal capacity of young persons to conduct appeals. A right of appeal is conferred by s 51 of the 2014 Act, and the court noted that this had to be an effective right, regardless of whether the young person has capacity or not.

Where a young person has capacity, the appeal itself is brought by the young person, who can appoint individuals to assist and act for them. However, where a young person is judged not to have capacity to conduct an appeal, the Special Educational Needs and Disability Regulations 2014, reg 64 provides for an alternative person to act in place of the young person as a party to proceedings. The alternative person will be the young person’s representative, as provided for in s 80 of the 2014 Act which deals with capacity, or a parent, if no representative exists. In such a situation, the alternative person brings the appeal as a statutory substitute for the young person, though acting in their best interest. The alternative person is entitled to appoint individuals to assist and act on their behalf if they so choose.

Where capacity of the young person is in doubt, this should be determined as a preliminary issue to identify the correct parties. If a young person’s capacity changed during proceedings, the tribunal could substitute another party.

In the present case, it was correct to register the appeal in the name of Ryan’s parents as alternative persons under reg 64, as he lacked capacity to bring a s 51 appeal.

The tribunal noted the evidence of the parents and other experts that suggested that Ryan did have an ability to learn, and it concluded that the current placement was insufficient in terms of his potential. The absence of an EHC plan meant there was no specific provision of occupational therapy, speech and language therapy or other educational provision. It concluded that the local authority had failed to follow the Code of Practice, and that there was evidence that it was necessary to issue an EHC Plan.

The tribunal held that the FTT had not erred in law. It did not accept that attaining qualifications was an essential element of education, and concluded that the FTT was entitled to find that Ryan could still benefit from educational provision. The FTT’s reasoning was adequate, as it clearly accepted the expert evidence given by the local authority’s educational experts. No further explanation was needed. The FTT had been entitled to conclude that a plan was necessary in order to ensure access to educational provision.

David Wolfe QC was involved in this case.