Updating guidance given by the Upper Tribunal on mental capacity and the First tier Tribunal’s jurisdiction to make health and social care recommendations

25th June 2024

Matthew Wyard

Matthew Wyard (pictured here), specialist education law barrister at 3PB Barristers, instructed by Geldards LLP, represented the successful appellant in MM (as alternative person for C) v Royal Borough of Greenwich [2024] UKUT 179 (AAC).

Matthew writes about the Upper Tribunal's decision in this case, and the important points the judgment raises in relation to the conduct of proceedings before the SEND Tribunal when impaired litigation capacity is being considered. UTJ Stout grappled with two interesting issues:

  1. The approach that the First-tier Tribunal should take to recognising and dealing with appeals where an issue of litigation capacity arises, including where concerns arise as to whether the alternative person is acting in the incapacitated individual’s best interests;
  2. The nature of the recommendations' jurisdiction under the Special Educational Needs and Disability (First tier Tribunal Recommendations Power) Regulations 2017 and its relationship to the underlying health and social care frameworks, including whether and to what extent it is necessary or permissible for the FtT to have regard to, or await completion of, a social care assessment by a local authority before making recommendations.

Click here to read Matthew's analysis.

Matthew Wyard is a trusted and respected adviser to the education sector and those operating within it, having practised in the field of education law since before his call to the Bar. He is recognised in both of the leading legal directories, Chambers and Partners and the Legal 500.

For further information or to discuss any related issues or cases, please contact Tom Cox or Gemma Faulkner or telephone 020 7583 8055.