The importance of young persons’ capacity in the SEND Tribunal

MM v Greenwich – what does this judgment mean for parents conducting appeals to the First-tier Tribunal (Special Educational Needs and Disability) in respect of their children who are over compulsory school age?

It goes without saying that the First-tier Tribunal (Special Educational Needs and Disability) (FTT) appeal process can be complicated and difficult to navigate for any parent. However, where the appeal is in respect of a child or young person who is over compulsory school age (16+), there is a crucial additional consideration that comes into play; that of capacity to litigate. The Upper Tribunal (“UT”) has recently shone a light on this issue and stressed the importance of taking into account capacity issues in both bringing an appeal to the FTT, and in engaging in the FTT appeal process.

In a recent case heard by the Upper Tribunal (UT), MM (as an alternative person for C) v Royal Borough of Greenwich [2024] UKUT 179 (AAC), much-needed clarity was provided in respect of the FTT’s role in considering litigation capacity issues within the context of a SEND appeal. This will now impact on who the relevant Appellant will be. Namely, the young person themselves or their parent.

What did the appeal concern?

The UT appeal was brought in relation to a 2022 appeal to the FTT by a 17-year-old young person, ‘C’, who had profound special educational needs. C had a diagnosis of Autism Spectrum Disorder (ASD) and Global Developmental Delay (GDD), with severe associated communication and interaction difficulties. C also had a diagnosis of VACTERL Syndrome (which had the effect of causing heart, breathing, spinal and intestinal difficulties). C also had marked mobility issues (he mostly used a wheelchair) and was fed by tube. He had a colostomy and catheter. C required an extremely high level of support in meeting his complex special educational, social care and medical needs. In the appeal, C asked the Tribunal to make recommendations in relation to health care and social care provision.

The FTT appeal was brought in C’s own name, with his mother, MM, described as an ‘advocate to support him in expressing his views’. A solicitor was instructed by his mother. No written evidence pertaining to C’s capacity to bring the appeal was provided before the FTT. The FTT, nor the solicitor involved in the appeal, nor the local authority, raised the issue of, or concerns about, C’s capacity to bring and conduct the appeal in his own name, throughout the appeal process. The outcome of the appeal was that, ultimately, the FTT felt ‘unable’ to make health care or social care recommendations on the basis that particular evidence requested by it was not made available (namely, a social care transition assessment), and this evidence was required in order for such recommendations to be made.

The UT appeal, brought by MM who instructed Kevin McManamon and Milly van Beyere of Geldards LLP (who had not been involved in the original appeal before the FTT), was on four grounds:

1. The FTT’s conclusion that it could not make recommendations about healthcare provision was irrational or perverse, alternatively, it lacked adequate reasons;
2. The FTT’s conclusion that it could not make recommendations about social care provision was irrational or perverse, alternatively, it lacked adequate reasons;
3. If further evidence was required in order for the FTT to make recommendations, the FTT unlawfully failed to give effect to its obligations as an inquisitorial tribunal and/or failed to comply with the overriding objective to obtain that further evidence; and
4. The FTT unlawfully failed to consider or determine the issue of C’s capacity to litigate the appeal.

This article will focus on Ground 4, as it pertains to the issue of capacity to litigate.

What was the outcome of the UT appeal?

The UT appeal was successful on all grounds. In respect of Ground 4 specifically, the UT found that the FTT erred in law (and materially so), by failing to recognise C was a young person who lacked capacity to litigate, and thus MM should have been appointed as his ‘Alternative Person’.

How did the UT come to its decision in respect of the FTT’s responsibility in considering and/or determining the issue of capacity in FTT proceedings?

Helpfully, the UT in its judgment has given crucial guidance on the following:

1. The approach the FTT should take to recognise and deal with appeals where an issue as to capacity to litigate arises;
2. The appointment of an ‘Alternative Person’ (AP);
3. The AP’s duty to act in the best interests of the person lacking capacity; and
4. The approach the FTT should take where concerns arise as to whether the AP is acting in the individual’s best interests.

Firstly, this judgment has confirmed that the FTT must tackle the issue of litigation capacity of a young person who is 16 years or over, in particular, if circumstances arise that call into question the young person’s ability to conduct the appeal and engage with the appeal process. In this case, the UT Judge was satisfied that C probably did not have the capacity to conduct the appeal (and which, as a result of the UT appeal, was confirmed), and this was ‘shouted out’ from the papers. In such circumstances, there was an onus on the FTT to satisfy itself that the appeal was being properly conducted by C or on his behalf and to ensure that the correct person is appointed to conduct the appeal on their behalf acting in his best interests.

Furthermore, it was determined that the FTT cannot simply rely on legal representatives to alert the FTT to a capacity issue, however experienced those representatives may be. It is the FTT’s responsibility to ensure a fair hearing. Ultimately, it was concluded that the FTT’s failure to pause the proceedings, assess C’s capacity and appoint an alternative person constituted an error of law.

As such, in a situation where a young person may lack capacity to conduct proceedings, it is for the FTT to pause proceedings and assess the young person’s capacity. If it is determined that the young person does indeed lack litigation capacity, the FTT must appoint an Alternative Person to conduct the appeal in their stead. So, what is an Alternative Person?

In order to provide some context, the starting point is that, where a young person who is 16 years or over wishes to submit an appeal to the FTT, it is their right of appeal, not their parents. Whilst it is extremely common for parents to conduct FTT appeals in relation to their children, if their child is 16 years or over, it is not their right of appeal, and they should not do so in their own name. This may seem unusual, particularly if the young person is under the age of 18 and their parents still retain parental responsibility for them. The exception to this rule is if the young person lacks ‘litigation capacity’.

If a young person lacks such capacity, then a ‘representative’ must be appointed as an ‘Alternative Person’ (AP), and it is the AP who then has the right of appeal. In most circumstances, unless a court-appointed deputy or a lasting or enduring power of attorney is in place, this means a parent. The parent (acting as the AP) is then substituted as the relevant party to the appeal.

This UT decision has made it plain that where an AP is appointed, that AP must act in the best interests of the young person (an analogous duty with that of a ‘litigation friend’ in the ordinary courts). This was somewhat ambiguous before this UT decision, (it had been addressed to some extent by Judge Jacobs in the UT case of Buckinghamshire CC v SJ [2016] UKUT 254 (AAC)). However, it is now clear that an AP must do so. Where it is alleged, (as it was in this case had MM been appointed as AP), that the AP may not be acting in the incapacitated young person’s best interests, the FTT has a responsibility to take corrective steps to address the issue. Namely:

1. The FTT should consider what it can do to ‘neutralise’ the AP’s conduct so that it does not prejudice the young person’s participation in proceedings, through case management (for example, by explaining in detail to the AP their duty to act in the young person’s best interests);
2. The FTT may be able to simply ignore any prejudicial aspect of the AP’s conduct, so it has no adverse effect on the young person; or
3. The FTT may be able to afford an opportunity for any prejudice to be remedied.

In cases where there are serious concerns that an AP may not be acting in the best interests of the young person, the FTT can probably appoint a replacement AP (the Judge’s comments on this point are obiter dicta; non-binding).

In this case, it was determined that the FTT failed to identify the capacity issues that were plain from the paperwork alone, leading to the FTT being unable to take into account the fact of C not having capacity and MM’s duties as AP when deciding how to deal with the health and social care part of the appeal, which ultimately made a material difference to the hearing.

What is the impact of this decision on parents and young people?

The impact of the UT decision is that it is now binding on the FTT to actively consider the issue of capacity in relation to all appeals concerning young persons who are 16 years and over. If there are concerns about that young person’s capacity to bring and engage with such proceedings, the FTT must pause proceedings, assess the young person’s capacity, and appoint an AP, if necessary. If an AP is appointed, the FTT must satisfy itself that the appeal is being properly conducted on the young person’s behalf and if not, it may have the power to appoint a replacement AP who will act in the young person’s best interests.

What this means for parents is that, whilst it is the responsibility of the FTT to identify the issue of litigation capacity within appeal proceedings, if you do have a suspicion that your child/young person (who is 16 years or older) may lack capacity to bring and conduct an appeal to the FTT, it would be wise to seek a mental capacity assessment to determine this issue. It will likely save time and the need for any unexpected adjournments, if the issue of capacity is dealt with either before proceedings are commenced, or very early on in proceedings.

Ultimately, determining a child or young person’s capacity (where they are 16 years or older) is necessary in order to determine who is the appropriate person to bring an appeal. Legal advice should be sought to avoid unnecessary delays and complications in an appeal.

You can read the full judgment here:

If you have any questions in relation to this article, please contact the Geldards Education Team.