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Young people, mental capacity and what is meant by educational
- AuthorLydia Dunford
A recent decision in the Upper Tribunal has provided much needed clarification as to the scope of decisions young people with special educational needs and disabilities can make when an appeal has been lodged against the contents of their EHC Plan.
The Upper Tribunal Judge in Buckinghamshire County Council v SJ (Special educational needs : Other)  highlighted the overlap between a young person with special educational needs and mental capacity. The Mental Capacity Act 2005 is the key piece of legislation that allows for young people, those who are over compulsory school age but less than 25 years, to have the authority to make decisions about appeals to the SENDIST. As EHC Plans details provisions for young people with special educational needs and disabilities up to and including 25 years it is important for these young people to have as much input as possible into any appeal over the contents of Sections B, F and I of their EHC Plan.
This case concerned a young person aged 20, who had a diagnosis of autistic spectrum disorder, hyperacusis, developmental co-ordination disorder and significant sensory processing difficulties. A young person is presumed to have capacity until shown otherwise and then only after all practical steps have been taken without success to help them make a decision. A young person may have capacity to decide on one matter, such as deciding to lodge an appeal with SENDIST, but may not have capacity to decide on another matter following this.
In this case the Tribunal recognised that this young person did not have capacity to bring the appeal in his own name. The young person’s parents acted on his behalf and were his representatives under section 64(2)(b) of the Special Educational Needs and Disability Regulations 2014 for the course of the appeal proceedings. The young person’s parents were required to act in his best interests by exercising their right of appeal under section 51(2)(b) MCA 2005. The young person’s parents were held to act in his best interests by bringing an appeal against the contents of his EHC Plan, as there were issues regarding whether the young person’s special educational needs required special educational provision to be made for him in the form of an EHC Plan. The young person’s parents also raised the issue that without special educational provisions in the form of an EHC Plan the young person would not receive the specified and quantified occupational therapy, speech and language and other educational provisions such as numeracy or literacy. Without such specified provision as detailed in an EHC Plan the young person was not receiving the support he needed to make the progress he was capable of.
This case also provided clear explanation on what is meant by educational for the purposes of having special educational provisions in an EHC Plan. The Local Authority argued that the young person concerned would not require special educational provisions to be developed for him in an EHC Plan as he had made minimal progress in his current placement, was functioning at a pre-school level and was unlikely to attain further qualifications.
The Tribunal and Upper Tribunal Judge confirmed that it is not necessary for a young person to be working towards achieving further academic qualifications for the purpose of having special educational provisions in an EHC Plan. The Upper Tribunal Judge stated that for many young people with special educational needs or disabilities “attaining any qualifications at all is not an option. That does not mean that they do not require, or would not benefit from, special educational provision.”
This decision supports young people with special educational needs and disabilities and their parents. It demonstrates to Local Authorities that each young person’s needs and ability to learn, and the support they need to learn to the best of their ability, are to be regarded as educational. It is regardless of what level a young person is likely to achieve in their learning, and the Tribunal and Upper Tribunal Judge identified that a young person would still benefit from such learning in their adult life. As EHC Plans are aimed to prepare young people for the next stage of their lives it is essential that EHC Plans detail provisions to enable a young person to learn to the highest level of educational ability they are able to.