The Children and Families Act 2014, which is the legal framework for EHCPs, states that once a young person reaches the end of compulsory school age, all rights that were previously held by the parent, pass to the young person, subject to the young person having mental capacity, as per the Mental Capacity Act 2005.
Once a young person is 16, a Local Authority should contact the young person directly, however the involvement of parents in discussing the young person’s future is encouraged by the SEN Code of Practice. The young person can also seek further involvement from their parents and should notify the Local Authority if they want their parents to be included in communications/attend meetings etc.
When it is agreed that a young person does not have capacity to make a decision about appropriate education needs, then parents will automatically make that decision for them unless the Court of Protection has appointed a different person to be their Deputy.
They would have to make the decision which was in the best interests of the young person concerned. The Local Authority would also still have to seek the young person’s views as part of any decision-making process. There may be disagreement between the parents, the young person, the school/college being attended and/or the Local Authority, regarding a young person’s mental capacity to make a decision. It may then be necessary to seek an assessment to provide a professional opinion of the young person’s capacity to make the decision.
A Mental Capacity Assessment might also be helpful to support a parent who wished to take a decision on behalf of a young person and was being challenged by a Local Authority about their right to do so. A parent would be expected to explain the basis of their belief that the young person lacked capacity and an assessment might help them to do so. Such an assessment may not be necessary in all cases however, depending on the other evidence available to support the parent’s belief.