Tribunal Ruling for Health and Social Care Recommendations

A recent case demonstrated the importance of determining the issue of capacity at the outset of proceedings and how the SEND Tribunal should deal with health and social care recommendations. 

Case Overview

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

The Upper Tribunal also gave guidance on what to do if there are concerns about an ‘alternative person’ not acting in the young person’s best interests. The case also confirmed that the tribunal’s powers to make recommendations in respect of health care or social care sections of the EHCP are not optional or an optional extra where this has been specifically requested by the appellant. 

Capacity 

The above was registered in the First Tier Tribunal (FTT) in respect of ‘C’, a 17 year old with complex medical needs, Autism and Global Developmental Delay. The appeal was brought in C's name, and his mother (MM) was named as his ‘advocate to support him in expressing his views’. This issue of capacity was not addressed in the FTT. 

When the case was appealed to the Upper Tribunal, the Upper Tribunal recognised that MM was not a party or representative in the appeal. That evidence was required regarding C’s capacity to conduct proceedings. 

Capacity is governed by the Mental Capacity Act 2005. Whether a person has capacity is a matter for the tribunal to decide. The FTT should have satisfied itself that the appeal was properly conducted on C’s behalf, and Regulation 64 requires the tribunal to ensure that the correct person is appointed to conduct the appeal on their behalf, acting in their best interests. The FTT’s failure to pause proceedings to assess C’s capacity and appoint an alternative person constituted an error of law. 

Guidance on Best Interests and Alternative Persons

Upon receipt of capacity evidence, the Upper Tribunal was satisfied that C lacked capacity and named MM as his ‘alternative person’.

The Upper Tribunal commented on what to do if there were concerns about whether the alternative person was acting in the person’s best interests. The non-binding guidance: 

• The FTT cannot take over from the alternative person and make decisions in their best interests as the FTT does not exercise a ‘best interests’ jurisdiction (as opposed to the Court of Protection). 
• The tribunal likely has the power to remove an alternative person where they are not acting in the incapacitated person’s best interests and appoint a litigation friend.
• The tribunal should first consider what it can do to ‘neutralise’ the situation. In some cases, the tribunal may find it possible to ignore the prejudicial aspect of the alternative person’s conduct so that it has no adverse effect on the young person.

Health Care and Social Care Non-Binding Recommendations

The Upper Tribunal made clear that the FTT’s power to make health and social care recommendations is materially the same as the power to make orders in respect of the contents of sections B and F. Where an appellant seeks recommendations under the 2017 Regulations, they are not to be viewed as an optional extra.

The Upper Tribunal found that the FTT had erred in law by failing to make health and social care recommendations by regarding itself as ‘unable’ to make recommendations because a social care assessment had not been completed by the local authority. The Upper Tribunal gave guidance as to the nature of the FTT’s jurisdiction: 

• The FTT exercises an inquisitorial jurisdiction in relation to health and social care in the same way as it does in relation to special educational needs. 
• The FTT is the only independent tribunal with jurisdiction to adjudicate on healthcare and social care provision. Whilst the tribunal can only make non-binding recommendations, it may be difficult for a local authority or responsible commissioning body to provide lawful cogent reasons for refusing to implement it.
• The tribunal is not required to ensure that the various statutory steps that the local authority should have carried out under the health and social care legislation before making or amending the EHCP are completed. 
• Health and social care assessments are not necessary preconditions to the exercise of its jurisdiction, but merely one means by which the evidence may be put before it.
• A recommendation for social care provision made by the FTT will carry more weight if it is made on the basis of evidence and by reference to the relevant eligibility criteria. As a matter of good practice where social care recommendations are sought, the FTT should require the local authority to provide it with the relevant local criteria. 
• The same goes for healthcare, although the FTT may need to make third party orders against the responsible commissioner if necessary. 

In conclusion, the Upper Tribunal's decision highlights the need for clear capacity assessments and proper appointment of alternative persons in special educational needs cases. The tribunal’s guidance ensures that concerns about the alternative person’s role are addressed and reinforces the importance of health and social care recommendations. This ruling reaffirms the legal standards designed to protect the interests of young people in the judicial process.