Mental capacity issues in the EHC plan process

The provisions governing SEN and the EHC plan process in the 2014 Act and 2014 Regulations confer a number of rights on parents and young persons. The Act (see section 80) and the Regulations (see regulations 63-65 and Schedule 3) make provision for the situation where a parent or young person lacks mental capacity (within the meaning of the Mental Capacity Act 2005) but these provisions are not easy to understand or apply.

Where a child's parent lacks capacity at the relevant time, then almost all references in the Act and Regulations to 'parent' are to be read as references to a 'representative' of the parent. Confusingly, however, 'representative' does not not mean their legal or other representative: it is specifically defined as a deputy appointed by the Court of Protection, a donee of a lasting power of attorney, or an attorney in whom an enduring power of attorney is vested. (No provision is made for the situation where a parent lacks capacity and does not have a 'representative'.)

Where a young person lacks capacity at the relevant time then in 28 different sections and regulations 'young person' is to be read as referring to both a young person and an 'alternative person', and in another 46 sections and regulations 'young person' is to be read as referring to an 'alternative person'. 'Alternative person' means a 'representative' as defined above or, if the young person does not have a 'representative', the young person's parent. If the parent also lacks capacity then it means a 'representative' of the parent. (Again, no provision is made for the situation where the parent lacks capacity and does not have a 'representative'.)

This may seem very confusing, but let's just take 3 of the most important rights as practical examples: the rights given to parents of children and young persons to (1) request an EHC needs assessment (s.36), (2) make representations about a draft EHC plan and request a particular school or institution (s.38(2)(b)) and (3) appeal to the FTT (section 51).

In the case of a child whose parent lacks capacity, the right in each of these cases is given to their 'representative' as defined above. If they do not have one then it would seem that the right cannot be exercised until they do.

In the case of a young person the three sections above (36, 38 and 51) are all in the list of sections where references to 'young person' are to be read as referring to an 'alternative person'. So the right in each of these cases is given to the young person's 'representative' if they have one, and their parent if not. (The right is given to the parent's 'representative' if the parent lacks capacity and again, if the parent lacks capacity and does not have a representative then it would seem that the right cannot be exercised until they do.)

In terms of deciding when a parent or young person lack mental capacity within the meaning of the Mental Capacity Act 2005, the Court of Protection has recently given guidance in the case of A Local Authority v GP [2020] EWCOP 56. HHJ Dodd held that the information relevant to a decision to request a statutory assessment (i.e. the information that under section 3 of the 2005 Act a person needs to be able to understand, retain and weigh up in order to be able to make a capacitious decision) was:

a. An EHC plan is a document that says what support a child or young person who has special educational needs should have;

b. Other people will be consulted during the assessment process including parents, teachers and other professionals;

c. If assessed as requiring an EHC the young person has enforceable right to the education set out within their plan.

d. An EHC plan is only available up to the age of 25 years.

HHJ Dodd also held that in relation to making decisions about education (including, but not limited to, EHC plan issues) the relevant information which a person needs to understand is:

a. The type of provision.

b. The type of qualifications, if any, on offer.

c. The cohort of pupils and whether P would match the profile of other pupils at the provision.

d. That P has additional rights up to the age of 25 because of his special educational needs.

Where a person does lack capacity, then ultimately any decision on their behalf (by a parent or 'representative') can be challenged in the Court of Protection as not being in their best interests. This could conceivably arise in the context of an incapacitous young person whose parent was seeking a placement that the young person had no real interest in.

The issues raised in this post may not arise often in practice, and even where they do the time and expense involved in Court of Protection proceedings are likely to be off-putting, but it is something that practitioners need to be alert to, at least in general terms.

Paul Greatorex