When you reach the end of compulsory school age (this is the last week of June in the year you turn 16), some rights related to EHC plans transfer from your parents to you.
These include the right to ask:
- for an EHC needs assessment,
- about what's in the plan,
- for a particular education setting to be named in the plan,
- for a personal budget,
- for an appeal to the SEND tribunal.
The Mental Capacity Act
If a young person lacks mental capacity to make decisions about their EHCP, their parent/carer should tell the local authority that they will be acting as their representative. This must all be done in line with the Mental Capacity Act.
The Mental Capacity Act affects decision-making for all people aged 16 and over who can't make some or all decisions by themselves. The issue of capacity can only be assessed in relation to a particular decision that needs to be made at a particular time. This stops blanket assessments of someone’s ability to make decisions based on their disability. It also recognises that someone may be able to make some decisions but not others. For example, someone can lack capacity to make complex financial decisions or consent to medical treatment, but have the capacity to decide what they would like to eat.
When assessing capacity to make a decision, it is important to consider whether a person is able to:
- understand the information about the decision
- remember that information
- use that information to make a decision
- communicate their decision (whether by talking, using sign language or any other means)
When someone is judged not to have the capacity to make a decision, that decision can be taken for them, and it must be in their best interests. The process of making a best-interest decision should be led by the person who requires the decision to be made; e.g. a doctor who requires consent before carrying out treatment. Consulting with others is a vital part of best interest decision-making, and the Mental Capacity Act requires the involvement of carers and family members.
A young person must always be supported to be involved as much as possible in a decision made on their behalf, even if they do not have the capacity to make it themselves.
Ambitious about Autism, Mencap and the Challenging Behaviour Foundation in partnership with Irwin Mitchell have produced a leaflet to help individuals who feel that they are not being appropriately consulted about the welfare of their loved ones.