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• 14 Feb 2022

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  No. A “young person” is “over compulsory school age but under 25”: CFA2014 s83(2).

  Unless there is evidence to displace the statutory presumption of capacity to conduct the appeal (contained in s1 Mental Capacity Act 2005), the young person is the appellant (i.e. the appeal is in their name and they can appoint a representative – i.e. an advocate – like anyone else): CFA2014 s51, LB Hillingdon v WW [2016] UKUT 253 (AAC)#13. It follows that, in such a case it is wrong in law for a parent (or similar) to be identified as bringing the appeal “on behalf of” (or similar) the young person: it is the young person’s appeal.

  Where a young person lacks capacity to conduct an appeal, an ‘alternative person’ must bring the appeal – that being a Court of Protection Deputy or donee of lasting power of attorney; and if there is no such person, the parent: Regs2014 r64(2)(b). They are then the appellant (i.e. the appeal is in their name) in respect of the young person, but not on behalf of the young person in the way an SEN advocate would: Buckinghamshire CC v SJ [2016] UKUT 254 (AAC) #14. It follows that, in such a case it is wrong in law for the alternative person to be identified as bringing the appeal “on behalf of” (or similar) the young person: it is the alternative person’s appeal. (Note in that regard that COP2015 p274 is therefore misleading in referring to “occasions when a representative or parent has to act on behalf of young person who lacks capacity …”)

  The ordinary presumption of capacity applies (i.e. capacity is presumed unless the contrary is shown). If there is an issue about the young person’s capacity then the FTT itself must resolve that issue: Buckinghamshire CC v SJ [2016] UKUT 254 (AAC) #19.

  Where a young person lacks capacity and attends a residential placement consider whether the test for deprivation of liberty is met meaning the LA is required to make an application to the Court of Protection: see e.g. Birmingham CC v D and W [2016] EWCOP 8.

  Go to Glossary 

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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