In MM v GREENWICH RLBC (2024) UKUT 179 (AAC) Judge Stout holds that a FTT a First-tier Tribunal when considering an appeal in relation to an education health and care plan for a 16 year old boy had failed to consider whether he had capacity to litigate, and should have appointed his mother as alternative person.  The Upper Tribunal gave a guidance on the approach of the FTT to health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The guidance, at paragraph 108, is as follows.

• Although there was no freestanding right of appeal against the contents of the health and social care sections of the EHCP, once an appeal had been brought under s.51 of the Act, the tribunal’s powers to make recommendations under the 2017 Regulations were an equal part of its jurisdiction.
• The fact that the local authority or responsible commissioning body was only required to provide a reasoned response to the tribunal’s recommendations rather than actually comply was not a reason for the tribunal to regard its decision-making task as any less important.
• The tribunal exercised an inquisitorial jurisdiction in relation to health and social care in the same way as it did in relation to special educational needs.
• The primary burden was on the parties to put before the tribunal the evidence necessary to make out their respective cases. If they failed to do so, the tribunal could decide the case on the evidence before it, or direct further evidence.
• The tribunal was not required before deciding what to order to ensure that the various statutory steps that the local authority should have carried out before making or amending the EHCP had been completed.
• There was no statutory requirement in relation to assessment before health or social care provision could be included in an EHCP, nor did the tribunal have any express jurisdiction to order or recommend that either the responsible commissioning body or the local authority carry out an assessment.
• Although the tribunal was not required to comply with the decision-making frameworks applicable to the local authority or responsible commissioning body, it might be relevant for it to take certain elements into account when making recommendations.
• The social care legislative framework might also inform the tribunal’s approach where there had been a breakdown in relationships between parent and social services.
• As a matter of good practice, in cases where health and social care recommendations were sought under the 2017 Regulations, the tribunal should require the local authority or responsible commissioning body to provide it with the relevant local criteria.
• If the evidence the tribunal had was “thin”, it could adjourn for further evidence, or refuse to make recommendations. There was in principle nothing wrong with making recommendations on a time-limited basis if the evidence available only related to a limited period.

In J ( LOCAL AUTHORITY CONSENT TO DEPRIVATION OF LIBERTY ) ( 2024 ) EWHC 1690 ( Fam ) Lieven J hols that a local authority which held parental responsibility for a child under the age of 16, under a Care Order, pursuant to Section 20 of the Children Act 1989, could consent to the deprivation of liberty of that child, as corporate parent, pursuant to section 33 of that Act. No Deprivation of Liberty Order was required, notwithstanding that there was a deprivation of liberty within the meaning of Article 5 of the ECHR. The decision to deprive the child of his liberty was an exercise of the authority’s statutory duties to him. There was an obligation as carer to keep him safe. Far from the restrictions amounting to a serious infringement of his rights that no local authority could lawfully consent to, they were restrictions essential to securing his best interests. Indeed they were required by the positive obligations under Article 2 of the ECHR.