Alex RKWith thanks to Matthew Wyard of 3PB for bringing this case to my attention, MM (C) v RB Greenwich [2024] UKUT 179 (AAC) is an extremely comprehensive decision of the Upper Tribunal, setting out important practice points as regards the conduct of proceedings before the SEND Tribunal in the context of impaired decision-making capacity. As UTJ Stout sets out in her summary at the start (a practice in some Tribunals that it would be very helpful for other jurisdictions to consider adopting):
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 to act 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.
Unpacking some of these points, UTJ Stout amplified the guidance given previously by UTJ Jacobs in Buckinghamshire CC v SJ [2016] UKUT 254 (AAC). In that earlier case, UTJ Jacobs had noted that:
Lack of capacity
[9] This is governed by the 2005 Act. Capacity depends on the matter in respect of which a decision has to be made: s 2(1). So a person may have capacity at one time but not at another, and may have capacity in respect of one matter but not another. The matter I am concerned with is the bringing of an appeal; that is what I mean when I refer to (lack of) capacity. The young person may have capacity in respect of that, but not in respect of other decisions that have to be made in the course of the proceedings. Equally, a person may lack capacity to bring an appeal, but have capacity to make other decisions in the course of the proceedings.
[10] A 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: s 1(2) and (3).
[11] Whether a person has capacity is a matter of fact for the tribunal to decide. Mr Small argued in HS/0515/2016 that the tribunal had a particular responsibility to ensure that a young person had the necessary capacity. In a sense, that is correct. Any tribunal must be alert to the possibility that a person lacks capacity on a matter. However, the overriding objective for both the First-tier Tribunal and the Upper Tribunal requires parties to co-operate with the tribunal: r 2(4) of both the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) and the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698). That may involve drawing an issue to the tribunal’s attention and, perhaps, providing the tribunal with any evidence it needs to resolve the issue.
UTJ Stout added two observations:
32. First, the ‘matter’ in respect of which a young person’s capacity needs to be assessed in this context is not just the bringing of an appeal but the ongoing conduct of it, including the decisions that ordinarily need to be made by someone conducting an appeal, such as what changes to the EHCP are sought and how to respond to matters raised by the local authority – in other words, the sort of decisions that are necessary to give instructions to a legal representative on the conduct of an appeal. Helpful further guidance on the approach the Tribunal should take to making an assessment of capacity in this context is to be found in the decision of HHJ Christopher Dodd, sitting in the Court of Protection in A Local Authority v GP and RP [2020] EWCOP 56.
33. Secondly, in other contexts it has been held that the threshold at which the Court or Tribunal will be expected to pause proceedings in order to make an assessment of capacity is where there is ‘good cause for concern’ about the person’s capacity to litigate: see Royal Bank of Scotland v AB (UKEAT/0266/18/DA and UKEAT/0187/18/DA) at [23]-[27], approved by the Court of Appeal [2021] EWCA Civ 345 at [12]. I see no reason not to apply that approach in this context too.
Applying this approach to the facts of the case before her, UTJ Stout noted that:
47. Despite my best efforts to take a generous approach in accordance with the general principles applicable to appellate Tribunals, I am satisfied that this was a case where the fact that C probably did not have capacity to conduct the appeal ‘shouted out’ from the papers. The Tribunal ought to have recognised that this was an issue just from reading the bundle and before even starting the first day of hearing. That is because of C’s diagnosis of global developmental delay and the general description of his learning and communication difficulties.
48. Once the hearing had started and C was not participating in the hearing, the onus was in my judgment on the Tribunal to satisfy itself that the appeal was being properly conducted by him or on his behalf. This is an important part of the Tribunal’s duties when dealing with appeals concerning young persons because as the legal principles I have set out above make clear, if a young person does have capacity, it is important that the Tribunal ensures that they and not their parent conduct the appeal and make the decisions in the proceedings (unless the Tribunal is satisfied that the young person has capacity and has properly authorised their parent to conduct the appeal for them). Equally, if the young person does not have capacity, then regulation 64, as well as common law procedural fairness and Article 6 of the ECHR, require the Tribunal to ensure that the correct person is appointed to conduct the appeal on their behalf acting in their best interests. As is clear from the legal principles set out above, a person who lacks capacity is, essentially by definition, unable to participate in the proceedings and continuing without safeguarding their rights by the appointment of a litigation friend will be unfair.
49. Although professional legal representatives obviously also have a responsibility to ensure that their client has capacity and is able properly to give them instructions, and to alert the Tribunal if there is any issue in that regard, the Tribunal cannot rely on the parties’ representatives to do this, however experienced those representatives may be. That is particularly so in the context of appeals under section 51 of the CFA 2014 where it is (in my experience) unfortunately relatively common for parties to forget or overlook the statutory change in appellant from parent to young person at the end of compulsory schooling. It is the Tribunal’s responsibility to ensure a fair hearing.
50. That does not mean, of course, that the Tribunal should ignore the fact that there is a legal representative. A Tribunal faced with this situation should always begin by making respectful enquiries as to whether the legal representative has considered the issue of who their client is (or should be) and their capacity. However, in this case, where it was in my judgment obvious from the papers that C probably lacked capacity (and now, in the light of my decision on this appeal, clear that he did lack capacity), I am satisfied that the Tribunal’s failure to pause the proceedings, assess C’s capacity and appoint an alternative person constituted an error of law.
After an interesting (obiter) discussion about the Tribunal’s powers to remove the alternative person and appoint a different person as a litigation friend, UTJ Stout made some observations about how it should proceed in circumstance where (very often) the alternative person appointed under the SEND Tribunal Rules will be the young person’s parent:
62. The removal of a parent as alternative person and appointment of a different litigation friend would be a significant step. While a court or Tribunal must be astute to ensure that a litigation friend (or alternative person) is conscious of their duty to act in the best interests[1] of the incapacitated party, and must take corrective steps if they are seriously concerned that the litigation friend is not complying that with duty (including, at least in the ordinary courts, removing a person as litigation friend if necessary), in my judgment fairness and the overriding objective requires that alternative steps are considered first before resorting to that more drastic course. That is especially important in the context of cases under CFA 2014 where the parent will (if the young person is under 18) still have parental responsibility for the young person and is, in any event, a person who, given their very close relationship with the young person, has their own independent and legitimate interest in the proceedings (albeit an interest strictly subordinate to that of the young person).
63. In cases where concerns arise as to whether a parent appointed as alternative person is acting in the best interests of the young person, it seems to me that the Tribunal should first consider what it can do to ‘neutralise’ that conduct so that the conduct of the alternative person does not prejudice the young person’s participation in the proceedings. This is a matter of ordinary, pragmatic case management. The Tribunal might begin, for example, by explaining to the alternative person their duty to act in the young person’s best interests. That might be sufficient to prevent the conduct. In this case, the Tribunal went some way towards doing that on the first day of the hearing when it explained that it was in ‘everyone’s interests’ for the transition plan to be completed, but that very general warning is not in my judgment a substitute for explaining properly to a parent who is (or should be) acting as alternative person the nature of their ‘best interest’ duty.
64. In some cases, the Tribunal may find that it is possible simply to ignore any prejudicial aspect of a parent’s conduct so that it has no adverse effect on the young person. Alternatively, the Tribunal might be able to afford an opportunity for any prejudice to be remedied.
[…]
65. What is important, and what makes the Tribunal’s error in failing to identify the capacity issue and appoint MM as alternative person a material error in this case, is that the Tribunal was as a result unable to take into account the fact of C not having capacity and MM’s duties as alternative person when deciding how to deal with the health and social care part of this appeal. As a result of its legal error, the Tribunal failed to take into account that MM should have been conducting the appeal as C’s alternative person on his behalf in his best interests and, where circumstances were such that it appeared she may not have done so, it should have considered the nature and extent of any such failing and taken that into account in deciding how to case manage and how to dispose of the proceedings.
Comment
The messiness of the obligations on courts and tribunals (and those appearing before them) to identify and respond to a potential lack of litigation capacity on the part of a party are vividly set out in the consultation paper of the CJC working group on determining mental capacity in civil proceedings. Sitting on that working group, and working on the final proposals, the observations of UTJ about the need for astuteness on the part of the SEND Tribunal (or indeed any other judicial body) for the potential that a party may lack litigation capacity rang very true. What then happens at that stage can be complicated (especially, as is so often the case, the party is unrepresented), but UTJ Stout has set out a clear route map within the specific context of the SEND Tribunal.
Separately, UTJ Stout’s judgment also contained useful guidance as to the nature of the SEND Tribunal’s jurisdiction under the ‘extended’ jurisdiction given it by the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 to make recommendations in relation to the social care provision for children the subject of appeals to the Tribunal. That she required 9 pages to set out the relationship between EHCPs and the legislative frameworks governing health and social care provision to children requiring services might be thought to reinforce the importance of the Law Commission’s current work “review[ing] the laws relating to the provision of support and services for disabled children in England, and the wider legal frameworks in which they are contained; with a view to making recommendations aimed at simplifying and modernising them, and at promoting clarity and consistency of understanding as to entitlements” (the first of its terms of reference for the project[2]).
[1] UTJ Stout noted at paragraph 36 that that the MCA best interests principles “is not, however, so far as I am aware, expressly provided for in any legislation or Court or Tribunal rules other than in the MCA 2005 where, on the face of it, it applies only for the purposes of that Act. However, it is widely accepted that a litigation friend once appointed should heed those principles in their conduct of the litigation on behalf of an incapacitated party” (whether that assumption is correct, and what its implications are, is discussed here).
[2] Full disclosure, I am a consultant to it.
