Danger of EHCSs, and, Abuse of MCA Capacity for Adult Service Funding

blog-pictureSo let us explore, what appears, to be the Local Authorities practice, in relation to capacity assessments, since, the lucrative, ‘independent/community living’, away from family living industry was created.

Anyone, suspected of ‘incapacity’, all autistic, learning disabled, and, mentally disordered.

Including, potentially, anyone in need of ‘special’ education.

Funded under Education, Health, and Care statements.

Which unlike SEN, make the social services responsible for ‘protecting’ a child’s ‘welfare’.

So now, all ‘special needs’ children, are deemed  in need of the protection.

Discriminatory of parents and children,in breach of the Equality Act, and,s 8 Human Rights Act.

Strengthening a disabled’s  status, as a ‘child in need’, under the Children Act, see my article NLJ ‘The Disability Trap’.

EHCS,  also allow care, health, and educations distinct roles to overlap.

And,  their funding to be mixed and transparency even more obscured..

SEN/EHCS, do not apply to private schools.

So, the rich, can avoid, state intervention, and, are, allowed, their legal rights.

ECHS, do not fund schools after 16.

Instead, schools are replaced, by ad hoc education packages,consisting of skills for independent living, until 25..

These, combine support  at home.

And, these ‘education’ providers, unknown a family, will be charged  to notify social services, who approve them, of any ‘intervention issues’.

At 18, Adult Services fund everything.

As, the only  LA policy now, is life in  for profit, private residential care units.

All decisions are removed from the disabled, and their family by the MCA 05.

By showing  ‘incapacity’ to make  decisions.

So, the LA will insist,  a capacity test is carried out, before, providing any adult services.

So social services, will suggest, your young adult child see a psychologist.

This ‘seeing’ includes a capacity test, but, you are unlikely to be made aware of this and there appears, no duty on the local authority to inform you.

It can also provide, evidence of emotional abuse/neglect, to cut you out of your child’s life.

If you  ask for clarification of such assessments, and/or feel them unnecessary, the Local Authority, will apply to the Court of Protection, for an interim order under s 48 Mental Capacity Act 2005.

This application will be served, 24 hours before the court hearing.

Social services witness statements, in support, are not on oath, so not subject to the Perjury Act.

Matters to support this court intervention, can include any reported hearsay, from any source, care workers, GP, educators etc.

The first you may  know  of these ‘concerns’, will be 24 hours before the hearing.

No one is under a duty to discuss  concerns with you first and under a tightly prescribed, managed service will be told not to..

Despite Social Workers and Mental Capacity Act Codes of Conduct, and, the Human Rights Act.

The Local Authority will ask  the court for a list of expansive orders.

Including, any assessment and/or inspection, they wish.

If you do not agree, you may be warned your child could be taken that night.

So, you are given little choice.

This,  is all an abuse of the MCA, and its five overarching principles, and its Code of Conduct.

The MCA provides, ‘capacity’, must be assessed specifically, in terms of capacity to make a particular decision, at the time it needs to be made.

The LA,  will allege incapacity, in respect to the following decisions,

To litigate the proceedings

To make decisions about where they should live

To make decisions about the care they receive

To make decisions about the contact they receive from family members.

Clearly, only the first two, are in fact particular decisions, the others involve several particular decisions, should they have a bath, wash hair, brush teeth, depilate their arm pits etc.

Similarly, family members, are many decisions, to see mother, father, sister, brother, granny.

Remember the MCA provides an assessment should only take place,

‘At the time it (the decision) needs to be made’

But these decisions do not need to be made, at this, particular time.

Just because a person is 18, and now funded by adult services, a capacity test per se, is not allowed by MCA.

In relation, to the last three decisions, the disabled person, will have been making these decisions, all their life, whether to have a bath, sleep in thier home,  see their granny.

How can they suddenly become incapable of making these decisions, and, the LA make them for them for them, under the MCA?

How can an assessment be justified, when these disabled, have already made these decisions in the past.

And by making them, shown their ‘capacity’ to make them, just because LA funding, requires it?

In relation, to the remaining decision, capacity to litigate, no one, unversed in law, would have such capacity, and, in any event, it is not be necessary, if the other capacities  are present.

The MCA, was not drafted for the convenience of funding, only, independent living provision at 18, and enabling this by illegal removal from the family home.

The MCA was drafted, to protect a person, by allowing another person, to make a decision for them, in  the least restrictive way, and, as they thought, that person, would have made it, in that person’s best interests, if thought, that person, had become in capable of making that particular decision, and, it needed, to be made.

The MCA, was not drafted, to declare people ‘incapable’, and, allow all their future decisions to be made for them, for profit.

Or was it ?


  1. Finola Thats it again. exactly what you list has happenedto Martin since 2006.Never any evidence always hearsay and the MCA used as a power tool. I believe Martin has capacity to litigate, certainly more than the barrister who acted ashis litigation friend, and whose case was “a shambles” I quote the judge Mr Justice Charles. The same barrister Fenella Morris QC asked for a judicial review (as Martin’s litigation FRIEND) to get him sectioned (using force). I was not in Court that day (hurt my knee). She held all Martin’s medical notes (which the Judge denied) and should have known that epilepsy does not come under the MHA. In the end Martin went “voluntarily” I am in total despair, we can’tt change it.


    1. Epilepsy is not an impairment of mental function so not even past first part of MCA capacity test, and even if it did it would only be temporary and under MCA Code they would have to wait for his best possible state to continue the test.
      All is illegal, the NHS LA Courts are using the MCA TO support expensive encagement which they are probably invested in.
      It is being used as a means of enforcing treatment and care for profit, riding roughshod through all human rights and law.

      What you say is beyond shocking and makes me feel really sick to the pits of my stomach but I am glad you shared it with me,
      Information must out that is why we are all gagged.
      Emailed you somedays ago but don’t think it got through Must go to Sainsburys to get food but will ring.



    2. They cannot keep him indefinitely sectioned under the MHA, EVEN if it temporarily he did come within it.

      As he went originally voluntarily he can remove himself at any time.

      Then no doubt they would try to say he was incapable under MCA, which is where my answer kicks in.

      As you say, failing huge publicity on the MCA more hope with LLB Bill on MHA , but that will only force Martin INTO the place Issy is under MCA

      Autism , epilesy learning disabled are being illegally rounded up by the LA and COP for profit, in breach of MCA, HRA, Codes of Conduct EU directive , natural justice , medical ethics, Magna Carta…

      All are living nicely off proceeds, lawyers, courts, experts, GPs, care agencies, encagers , investors.

      How do you fight all that money ? This does not happen in any other country in the world.

      Unless some media takes it on, and Red Ed media, is only hope, and/or class action, there will be no change.

      And it will get worse, we will have millions encaged –all learning disabled anyone they deem dodgy, and that could include anyone who dares to try to do something about it… this general ie mental health is a big weapon…..a


  2. For the files: Sept.2006 Inherent jurisdiction : Mr Justice Charles: SB be FORBIDDEN from discouraging MB from going to the Wincroke Unit or from co-operaating in his transfer and his assessment and treatment there, from criticising to MB the staff, facilities, care and/or treatment there,from telling MB that any other placenent is superior to the Wincroke Unit in any respect, from dsicouraging MB from taking up any offer of care or treatment mde to him by the health and socail care professionals responsible for MB at the Wincroke Unit, from having contact with MB while he resides at the Wincroke Unit save as agreed in writing with the healthcare proffesionals at the Wincroke Unit. The orders in these paragraphs shall continue until further order of the court and shall have a PENAL NOTICE atttached to them.


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