MM (as alternative person for C) v Royal Borough of Greenwich (Special Educational Needs)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Stout |
| Neutral Citation | [2024] UKUT 179 (AAC) |
| Published date | 27 June 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
1
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between: MM (as alternative person for C) Appellant
- v -
ROYAL BOROUGH OF GREENWICH Respondent
Before: Upper Tribunal Judge Stout
Hearing date(s): 9 May 2024
Mode of hearing: Field House, in person
Representation:
Appellant:Matthew Wyard (counsel), instructed by Geldards LLP
Respondent:Mark Greaves (counsel), instructed by Royal Borough of
Greenwich
On appeal from:
Tribunal: First-tier Tribunal (Health Education and Social Care Chamber)
(Special Educational Needs and Disability)
Tribunal Case No: EH203/22/00082
Tribunal Venue: By video
Decision Date: 18 September 2023
RULE 14 Order
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it
is prohibited for any person to disclose or publish any matter likely to lead
members of the public to identify the appellant’s son (C) in these proceedings.
This order does not apply to: (a) the appellant; (b) any person to whom the
appellant discloses such a matter or who learns of it through publication by the
appellant, for reasons aimed in good faith at promoting her son’s best interests;
or (c) any person exercising statutory (including judicial) functions in relation to
her son where knowledge of the matter is reasonably necessary for the proper
exercise of the functions.
Appeal No. UA-2023-001777-HS
NCN: [2024] UKUT 179 (AAC)
2
MM (as alternative person for C) v Royal
Borough of Greenwich
Appeal no. UA-2023-001777-HS
NCN: [2024] UKUT 179 (AAC
SUMMARY OF DECISION
SPECIAL EDUCATIONAL NEEDS (85.6)
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 toact 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.
Please note the Summary of Decision is included for the convenience of readers. It does not
form part of the decision. The Upper Tribunal’s Decision and Reasons follow.
DECISION
The decision of the Upper Tribunal is to allow the appeal.The decision of the First-
tier Tribunal was made in error of law. Under section 12(2)(a), (b)(i) and (3) of the
Tribunals, Courts and Enforcement Act 2007, I set that decision aside insofar as it
relates to health and social care only. I remit the case to be reconsidered by the same
tribunal in accordance with the following directions.
DIRECTIONS
1.This case is remitted to the First-tier Tribunal for reconsideration at an oral
hearing before the same tribunal.
3
MM (as alternative person for C) v Royal
Borough of Greenwich
Appeal no. UA-2023-001777-HS
NCN: [2024] UKUT 179 (AAC
2.I direct that the file be placed before a salaried judge of the First-tier
Tribunal (Health, Education and Social Care Chamber) (Special Educational
Needs) for case management directions to be given.
These Directions may be supplemented by later directions by a Tribunal
Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of
the First-tier Tribunal.
REASONS FOR DECISION
Introduction
1.This case concerns a young person (C) with diagnoses of Autism Spectrum
Disorder (ASD), global developmental delay and complex medical conditions.
The appeal raises issues as to: (i) the proper handling of cases involving young
people who lack, or may lack, capacity to litigate; and (ii) the First-tier Tribunal’s
powers under the Special Educational Needs and Disability (First-tier Tribunal
Recommendations Power) Regulations 2017 (SI 2017/1306) (the 2017
Regulations), including whether and to what extent it is necessary or permissible
for the First-tier Tribunal to have regard to, or await the completion of, a social
care assessment by the local authority before making recommendations under
those Regulations.
2.The structure of this decision is as follows:-
Factual background .......................................................................................... 4
The appeal to the First-tier Tribunal and the Tribunal’s decision5
The appeal to the Upper Tribunal 11
Ground 4: The capacity issue .........................................................................13
The legal principles applicable where a capacity issue arises 13
The parties’ submissions on Ground 419
The appellant’s submissions.....................................................................19
The respondent’s submissions..................................................................20
Why the Tribunal erred in law in failing to conduct a capacity assessment and
appoint MM as alternative person 20
Whether the Tribunal’s error was material21
Whether the Tribunal could have appointed someone else to act as alternative
person instead of MM 22
What a Tribunal should do where an alternative person may not be acting in
the young person’s best interests26
Grounds 1, 2 and 3: health and social care ....................................................27
The parties’ submissions on Grounds 1, 2 and 327
The appellant’s submissions.....................................................................27
The respondent’s submissions..................................................................30
The relevant legislative background under the CFA 2014 and 2014
Regulations 32
The 2017 Regulations 35
The social services framework 42
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