Under the new system for special educational needs, young people take control of what goes into their Education, Health and Care Plan when they reach 16.

Here, we explore what that means when making post-16 education decisions and what to consider if a young person is unable to make the decision.

An Education, Health and Care Plan (EHCP) is a legal document which should set out a clear description of the child or young person’s needs (what he or she is able to do) and what will be done by the local education authority to meet these needs to enable the young person to achieve their full potential throughout their education.

When the Children and Families Act 2014 came into place, the reforms to special educational needs saw a new system introduced. It was designed around the needs of children and young people and, for the first time, created a streamlined system to support them all the way up to the age of 25. This new system also transferred the control of the EHCP to the young person when they reached the age of 16, meaning that they were then in control of their own education.

However, sometimes people aren’t able to make specific decisions about something. This is what the term mental capacity applies to and it is important that it always sits side-by-side with an EHCP so that everybody is supported to make decisions or has someone to make decisions for them where they lack capacity to do so.

We spoke to Gurvinder Kaur from Shoosmiths Legal regarding the extension of support to the age of 25, how this puts young people at the centre of their own decisions and what it really means for them and their family.

‘I’ve yet to come across any agency or professional that is involved in the field of special educational needs that hasn’t welcomed the availability of an EHCP up to the age of 25. A radical difference under the new regime is the automatic transfer of parental rights on the content of the plan to the young person once they reach compulsory school age of 16. In fact, upon the young person reaching compulsory school age, all rights relating to the plan automatically pass to the young person. The previous statementing system only gave parents/guardian of the child/young person rights in respect of the content of a statement, even where the young person was 16 or even 18.’

What exactly does the new law say?

According to Gurvinder, under the new system, the automatic transfer of rights to the young person is subject to the young person having capacity. This means the ability to make the decisions about their education when they need to be made. It will be assumed that the young person has capacity and they should be included in correspondence concerning the EHCP in their own right.

If a young person has capacity, then they will have the right to:

  • request an EHC needs assessment,
  • make suggestions on EHCP content,
  • request a particular educational institution is named in an EHCP,
  • request a personal budget relating to the provision in the EHCP,
  • appeal to the First Tier Tribunal: Special Educational Needs and Disability Tribunal.

But what is mental capacity?

The Mental Capacity Act 2005 supported by the Mental Capacity Code of Practice explains the concept of capacity.

A person does not have mental capacity if they are unable to do one or more of the following:

  • understand information relevant to the decision they are taking, including understanding the consequences of making or not making the decision,
  • retain information for long enough to make the decision,
  • use/weight the information to arrive at a decision, or
  • communicate their decision in any method (e.g. verbal, sign language).

The Mental Capacity Code of Practice advises against presuming someone does or does not have capacity on the basis of their:

  • age,
  • appearance,
  • any mental health diagnosis,
  • any disability or medical condition.

The key issue with capacity is that it is not a static concept – whether a young person has the capacity to make a decision about a particular issue will depend upon the individual and the circumstances at that time. It’s possible to have capacity to make some decisions but not others.

In the case of a young person with special educational needs in respect of their education, it may be appropriate for them to make their own decisions regarding their daily education. This could include things such as what subjects/areas they want to learn or activities they would prefer to do, but it may not be appropriate to let them decide which educational placement they should attend.

The Mental Capacity Act can’t protect a young person from making a bad decision.

How to understand if a young person has capacity

If there is uncertainty over whether the young person has capacity, this could be uncertainty from the parent, the young person, their current educational placement and/or their local authority, it may be appropriate for a capacity assessment to be completed with the young person. The Code of Practice says that any such assessment should be undertaken by a GP or similar medical professional. Such assessments should not be undertaken by a psychologist or educational setting staff.

If parents are concerned about their child having capacity, they should raise this with their local authority as it should be the local authority that, in the first instance, seeks a mental capacity assessment. Should the local authority refuse to secure a capacity assessment, the parents can appraise the young person directly or secure an independent capacity assessment.

If after the assessment it’s agreed that the young person doesn’t have capacity, then it will be the parents that take on that decision on behalf of the young person. This is unless the Court of Protection has appointed someone other than the parent to act as a deputy for the young person.

What are the pros and cons for young people?

Gurvinder believes that the introduction of the rights of a young person to take control of their education choices certainly empowers young people. It gives real weight to their voice in respect of their life choices. As long as the young person has capacity, their views, wishes and feelings in relation to their education will take precedence.

This means that where decisions are made about a young person’s provision or placement in a plan after the age of 16, and the young person has capacity, it will be up to them to challenge any decisions made by their local authority if they disagree with them. This can feel like a lot of pressure for one person.

Challenges around the content of a plan are addressed in the forum of the Special Educational Needs and Disability Tribunal. Any appeal would have to be made and pursued in the name of the young person. Increasingly, families are using legal representation for tribunal proceedings because of the complexity of issues. However, it would have to be the young person that instructs a solicitor to represent them in any appeal.

Whilst the Code of Practice gives guidance on what to do when it is felt a young person does not have capacity, there are no timeframes on this. In most cases, the capacity of the young person is not considered until a decision regarding their post-16 placement needs to be made. If there is a dispute around capacity, it must first be resolved before the content of the plan can be challenged. The timeframes for first resolving a capacity dispute and then pursuing an appeal could delay the start of the young person’s education. As such, where capacity may be an issue, it’s crucial to be proactive. The earlier concerns around capacity are raised and investigated the sooner they can be resolved.

Keep supporting

It is hoped that families and parents continue to support their young person in making decisions and remain closely involved. The Code of Practice states they can always act on the young person’s behalf provided that the young person is happy for them to do so. Local authorities and associated agencies should continue to involve parents in discussions about the young person’s future.

However, whilst the process can involve input from parents and family, the final decision has to be the young person’s. The young person can request support from a family member in any way, such as nominating them to receive correspondence on their behalf or accompanying them to meetings. These requests should be accommodated by the local authority.

How the changes to the Children and Families Act will impact on each individual and their family is likely to vary from person to person. As with most new legislation, it will largely depend on personal circumstances. The most important thing to remember is to keep communicating; young people, parents and the local authority need to keep talking to each other, not just at the beginning of an assessment, but all the way through.

If you are a young person, taking responsibility for your own education should feel empowering but at times it may also feel overwhelming. This is completely normal, so make the most of all the support available to you and never be afraid to ask for more help if you need it.

With thanks to Gurvinder Kaur, Solicitor, Shoosmiths Legal.

Useful websites

Department for Education
Young Person’s Guide to the Family Act
Disability Rights UK