Commentary on Sections of the Act Part 2 – Additional Learning Needs Chapter 5 – General Section 84 - Capacity of children
176.Section 84 provides for circumstances where a child does not have sufficient understanding and intelligence to understand documents provided under Part 2, or what it means to exercise the rights under that Part. This could be due to their young age, or for other reasons, such as a learning difficulty Where a governing body, local authority, or NHS body considers that a child does not have the ability to understand, and/or where the Tribunal has made a declaration to that effect, duties under the Act to provide the child with information or notify them of decisions do not apply unless a case friend has been appointed for the child by the Tribunal or the Tribunal has declared that the child does have capacity. (See section 85(4) and (5) for the effect of the appointment of a case friend for a child on the exercise of that child’s rights under Part 2).
177.On the same basis, this section disapplies duties to review or reconsider decisions or IDPs or to decide whether to take over an IDP following a request from a child who is considered to lack the capacity to understand.
178.Where a governing body of a maintained school considers that a child does or does not have the capacity to understand, subsection (6) enables the child or child’s parent to request that the local authority responsible for the child reconsiders the matter. The local authority must then decide the matter. Whether or not such a request is made, if a local authority takes a different view to the governing body on the capacity of a particular child, it is the local authority’s view that prevails, provided the authority has informed the governing body of its view (subsection (2) together with subsection (3)(a) and subsection (4)). Additionally, a declaration can be sought from the Tribunal that a child does or does not have capacity to understand (see section 71(2)).