In Local Authority v GP (Capacity – Care, Support and Education)  EWCOP 56 HHJ Dodd helpfully turned the eye of Sauron onto three areas of capacity that have not previously been the subject of judicial consideration. The court had to consider whether a young man, aged 19, had capacity to make a decision to accept or refuse care and support, and also to make decisions in relation to education. HHJ Dodd broke down each aspect in turn.
Refusal of assessment of care and support needs pursuant to s.11 Care Act 2014
HHJ Dodd identified this was the correct formulation of the decision in issue for purposes of s.15(1)(a) MCA 2005. Drawing upon the agreed position of the Applicant local authority and the Official Solicitor on behalf of GP, HHJ Dodd held that the information relevant to the decision will include:
- A local authority has a statutory duty to meet a person’s eligible care needs, which may be to prevent or delay the development of needs for care and support or reducing needs that already exist.
- The assessor may speak to other adults or professionals involved in GP’s care and that GP may refuse to consent to this.
- The local authority will assess how GP’s wellbeing can be promoted and whether meeting these needs will help GP achieve his desired outcomes.
HHJ Dodd disagreed that relevant information included that “[t]he importance of GP participating as fully as possible in decisions related to the assessment of his needs and how those needs can be met,” holding (at paragraph 22) that:
In my view, this is a value judgment rather than information relevant to GP’s decision to refuse a Care Act assessment and is in any event too nebulous to amount to “the reasonably foreseeable consequences of deciding one way or another”.
To make decisions as to his care and support
HHJ Dodd noted that guidance on what information is relevant to this decision was formulated by Theis J in LBX v K, L and M  EWHC 3230 (Fam) and approved by the Court of Appeal in B v A Local Authority  EWCA Civ 913, namely: (a) with what areas GP needs support; (b) what sort of support GP needs; (c) who will provide such support; (d) what would happen without support, or if support was refused; and (e) that carers may not always treat GP properly, and the possibility and mechanics of making a complaint if GP is not happy.
The Applicant suggested, in addition, that in GP’s case the relevant information would include:
- why having a support worker is important to GP to access the community;
- the importance of structure and routine in GP’s day;
- the importance of regular access to the local community to build and maintain his confidence in daily life and independence and to avoid a deterioration in his anxiety;
- the importance of developing relationships with others outside of his close family to build and maintain his confidence in daily life and independence and to avoid a deterioration in his anxiety, to avoid a dependency upon his close family members and to develop his own interests and opportunities for a social life with peers;
- the opportunities that may be available to engage in training, education, volunteering or employment.
However, HHJ Dodd observed that:
26. With one exception, these additional factors strike me as comprising (or at least incorporating) not facts but somewhat nebulous value judgments. The desire to ensure that GP takes full advantage of the services potentially available to him is laudable but has resulted, in my view, in the tail of welfare beginning to wag the dog of capacity.
27. The exception is: “e. the opportunities that may be available to engage in training, education, volunteering or employment.” This is certainly information, but it is not a salient feature of a decision about care and support.
To request an EHC needs assessment under section 36(1) of the Children and Families Act 2014
HHJ Dodd observed that this formulation of the question was better than that advanced by the applicant (“to request or refuse an assessment of his education and health care needs for an education, health and care plan (EHC plan) pursuant to s.36 (1) of the Children and Families Act 2014”), because, as he held at paragraph 28, this had “the attraction of greater simplicity and the omission of the reference to GP deciding to refuse an EHC assessment: as I understand it, if the obligation to carry out such an assessment is triggered under s.36, GP would not be entitled to decide that it should not be carried out.”
HHJ Dodd endorsed the agreed position as to the following information being relevant:
- An EHC plan is a document that says what support a child or young person who has special educational needs should have;
- Other people will be consulted during the assessment process including parents, teachers and other professionals;
- If assessed as requiring an EHC the young person has enforceable right to the education set out within their plan.
- An EHC plan is only available up to the age of 25 years.
HHJ Dodd did not agree with two further pieces of information suggested to be relevant by the applicant local authority:
- “If assessed as requiring an EHC plan, social care and health needs may be included on the plan and this may be advantageous to GP in having his needs met:” HHJ Dodd held that this added nothing to (a) above;
- “The local authority would agree to ‘lapse’ GP’s EHC plan this year, and he may reconsider next year but it may be difficult to seek an EHC plan after that:” HHJ Dodd found that the possibility (of uncertain extent) that “it may be difficult to seek an EHC plan” is too nebulous to amount to relevant information.
To make decisions as to his education
HHJ Dodd agreed with this formulation rather than that advanced by the applicant (i.e. “to make decisions about his education and health care needs pursuant to the Children and Families Act 2014”).
On this issue, there was not agreement between the appellant and the Official Solicitor as to the relevant information; HHJ Dodd did not resolve the disagreement, but indicated that, in the event that the parties could not agree, the formulation of the relevant information advanced by the Official Solicitor, namely:
- The type of provision.
- The type of qualifications, if any, on offer.
- The cohort of pupils and whether P would match the profile of other pupils at the provision.
- That P has additional rights up to the age of 25 because of his special educational needs.
The independent expert, Dr Rippon, had said in evidence:
I think education is broader than just qualifications. I think education also has an important component in supporting a YP’s social and emotional needs. YP who are having education via remote working are missing a key component of what school is. It is about supporting their development as an individual and it supports their emotional wellbeing in addition to just being somewhere you gain qualifications.
HHJ Dodd indicated that in this regard he had found helpful:
37. […] the following passage from the decision of Macur J (as she then was) in In LBL v RYJ and VJ  EWHC 2665 (at paragraph 58)
“In Dr Rickard’s view it is unnecessary for his determination of RYJ’s capacity that she should understand all the details within the Statement of Special Educational Needs. It is unnecessary that she should be able to give weight to every consideration that would otherwise be utilised in formulating a decision objectively in her ‘best interests’. I agree his interpretation of the test in section 3 which is to the effect that the person under review must comprehend and weigh the salient details relevant to the decision to be made. To hold otherwise would place greater demands upon RYJ than others of her chronological age/ commensurate maturity and unchallenged capacity.”
38. Whilst I do not doubt the accuracy of Dr Rippon’s observation that “education is broader than just qualifications” (indeed, it is almost a cliché), I fear that to require GP to understand and weigh the nature and extent of the social and personal development opportunities which might be available to him would be to do precisely what Macur J decided against, namely placing greater demands upon him than others of his chronological age/commensurate maturity and unchallenged capacity.
On the facts of the case, HHJ Dodd found that GP did not have capacity in any of the relevant domains.
This is a very useful addition to the canon of cases which give guidance as the categories of information which is likely to be relevant (or irrelevant) to particular decisions – although such cases should always be read subject to the injunction in B v A Local Authority that the guidance must always be tailored to the specific situation of the individual in question.
As a further point, it was extremely helpful that this judgment gave an indication in its title as to what it was about; this practice, common in family proceedings, could usefully be more widely adopted in Court of Protection cases as we otherwise drown in an ever greater deeper alphabet soup.