Legalize / United Kingdom / Wales / Act of Senedd Cymru

Additional Learning Needs and Education Tribunal (Wales) Act 2018

Type Act of Senedd Cymru

Publication 2018-01-24

State In force

Jurisdiction Wales

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — OVERVIEW

Overview of this Act

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(1) Part 2 of this Act establishes the statutory system in Wales for meeting the additional learning needs of children and young people; it contains 5 chapters.

(2) Chapter 1 (sections 2 to 9)—

(a) gives the meaning of the key terms “additional learning needs” and “additional learning provision” (sections 2 and 3);

(b) provides for a code of practice on additional learning needs (sections 4 and 5);

(c) makes provision about participation by children, their parents and young people in decisions, about having regard to the United Nations Convention on the Rights of the Child and to the United Nations Convention on the Rights of Persons with Disabilities, and about access to information about the additional learning needs system established by Part 2 (sections 6 to 9).

(3) Chapter 2 (sections 10 to 46) provides for individual development plans for children and young people with additional learning needs.

(4) Provision is made for the plans to be prepared and maintained by governing bodies of maintained schools, the governing bodies of institutions in the further education sector or local authorities; and for the governing body or authority having the duty to maintain the plan to secure the additional learning provision contained in the plan.

(5) Special provision is made for plans for looked after children (sections 15 to 19) and children and young people who are subject to a detention order and placed in certain kinds of youth detention accommodation (sections 39 to 45).

(6) Provision is made requiring particular health bodies—

(a) to consider, on referral from a governing body or local authority, whether there is a relevant treatment or service they could provide that is likely to be of benefit in addressing a child's or young person's additional learning needs and, if so, to secure its provision (sections 20 and 21);

(b) to appoint a designated education clinical lead officer (section 61);

(c) to notify parents and local authorities where they form the opinion that a child under compulsory school age has, or probably has, additional learning needs (section 64).

(7) Chapter 3 (sections 47 to 67) makes further provision for and in connection with functions related to meeting additional learning needs, including—

(a) a duty on local authorities to favour education in mainstream maintained schools for children with additional learning needs (section 51);

(b) provision changing the registration system for independent schools to require the Welsh Ministers to publish a list of the registered schools which indicates the type or types of additional learning provision that an independent school makes (section 54);

(c) provision limiting the power of local authorities to secure additional learning provision for children or young people at independent schools to registered independent schools (section 55);

(d) a duty on the Welsh Ministers to establish and maintain a list of independent special post-16 institutions and a provision limiting the power of local authorities to secure additional learning provision at such institutions to those on the list (section 56);

(e) a duty on governing bodies of maintained schools and institutions in the further education sector to appoint additional learning needs co-ordinators (section 60);

(f) a duty on health bodies, local authorities, maintained schools and other bodies to provide information and other help to local authorities that request it (section 65).

(8) Chapter 4 (sections 68 to 81) makes provision about avoiding and resolving disagreements; it provides for—

(a) local authority arrangements for the avoidance and resolution of disagreements (section 68);

(b) independent advocacy services (section 69);

(c) rights of appeal to the Education Tribunal for Wales in respect of decisions as to whether or not a child or young person has additional learning needs, the contents of individual development plans and other decisions relating to plans (sections 70 and 72).

(9) Chapter 5 (section 82 to 90) makes general provision, including—

(a) a power for the Welsh Ministers to make regulations about the disclosure and use of information (section 82);

(b) a duty on the Welsh Ministers to make regulations for the purpose of giving effect to Part 2 in a case where a parent of a child, or a young person, lacks capacity (section 83);

(c) provision for the disapplication of certain duties to inform or notify a child or to take action following a request by a child where the child lacks capacity and does not have a case friend (section 84);

(d) provision about case friends for children who lack capacity (section 85).

(10) Part 3 (sections 91 to 94) continues the Special Educational Needs Tribunal for Wales and renames it the Education Tribunal for Wales.

(11) In addition to the jurisdiction set out in Chapter 4, the Education Tribunal has jurisdiction in relation to disability discrimination in schools (for provision about this, see section 116 of the Equality Act 2010 (c. 15) and Schedule 17 to that Act).

(12) Part 4 (sections 95 to 101) makes provision about the meaning of “in the area” of a local authority for the purposes of the Education Acts (section 95) and makes general provision, including provisions about interpretation that apply for the purposes of the Act (section 99).

PART 2 — ADDITIONAL LEARNING NEEDS

CHAPTER 1 — KEY TERMS, CODE AND PARTICIPATION

Key terms

Additional learning needs

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(1) A person has additional learning needs if he or she has a learning difficulty or disability (whether the learning difficulty or disability arises from a medical condition or otherwise) which calls for additional learning provision.

(2) A child of compulsory school age or person over that age has a learning difficulty or disability if he or she—

(a) has a significantly greater difficulty in learning than the majority of others of the same age, or

(b) has a disability for the purposes of the Equality Act 2010 (c. 15) which prevents or hinders him or her from making use of facilities for education or training of a kind generally provided for others of the same age in mainstream maintained schools or mainstream institutions in the further education sector.

(3) A child under compulsory school age has a learning difficulty or disability if he or she is, or would be if no additional learning provision were made, likely to be within subsection (2) when of compulsory school age.

(4) A person does not have a learning difficulty or disability solely because the language (or form of language) in which he or she is or will be taught is different from a language (or form of language) which is or has been used at home.

(5) This section applies for the purposes of this Act.

Additional learning provision

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(1) “Additional learning provision” for a person aged three or over means educational or training provision that is additional to, or different from, that made generally for others of the same age in—

(a) mainstream maintained schools in Wales,

(b) mainstream institutions in the further education sector in Wales, or

(2) “Additional learning provision” for a child aged under three means educational provision of any kind.

(3) In subsection (1), “nursery education” means education suitable for a child who has attained the age of three but is under compulsory school age.

(4) Regulations may amend this section to replace the references to the age of three with references to a different age.

(5) This section applies for the purposes of this Act.

Code of practice

Additional learning needs code

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(1) The Welsh Ministers must issue, and may from time to time revise, a code on additional learning needs (“the code”).

(2) The code may include guidance about the exercise of functions under this Part and about any other matter connected with identifying and meeting additional learning needs.

(3) The following persons must, when exercising functions under this Part, have regard to any relevant guidance contained in the code—

(a) a local authority in Wales or England;

(b) the governing body of a maintained school in Wales or England;

(d) the proprietor of an Academy;

(e) a youth offending team for an area in Wales or England;

(f) a person in charge of relevant youth accommodation in Wales or England;

(g) a Local Health Board;

(h) an NHS trust;

(i) NHS England;

(j) an integrated care board;

(k) an NHS foundation trust;

(l) a Special Health Authority.

(4) For provision about local authorities requiring certain providers of nursery education to have regard to guidance contained in the code, see section 153 of the Education Act 2002 (c. 32).

(5) The code may impose requirements—

(a) on a local authority in respect of arrangements it must make under sections 9 (advice and information), 68 (avoidance and resolution of disagreements) and 69 (independent advocacy services);

(b) on a governing body of a maintained school in Wales or an institution in the further education sector in Wales or a local authority in respect of—

(i) decisions as to whether a child or young person has additional learning needs,

(ii) the preparation, content, form, review and revision of individual development plans, or

(iii) ceasing to maintain individual development plans;

(c) on a governing body of a maintained school in Wales or an institution in the further education sector in Wales in respect of the provision of information for the purposes of this Part.

(6) The code must include the following requirements on governing bodies and local authorities—

(a) a requirement under subsection (5)(b)(i) for the notification of a decision that a child or young person does not have additional learning needs to be given in accordance with section 11(4), 13(3), 18(3) or 40(4) before the end of a period of time specified in the code, subject to any exceptions to the requirement specified in the code;

(b) a requirement under subsection (5)(b)(ii) to prepare an individual development plan and give a copy of it in accordance with section 22 or 40(5) before the end of a period of time specified in the code, subject to any exceptions to the requirement specified in the code;

(c) a requirement under subsection (5)(b)(ii) to use the appropriate standard form set out in the code for an individual development plan; and the code must include one or more standard forms for this purpose.

(7) The code may make—

(a) different provision for different purposes or cases, and

(b) transitory, transitional or saving provision,

in relation to a requirement imposed under subsection (5) or provision made under section 7(4) or 8(4).

(8) The duty imposed by subsection (3) and a duty imposed under subsection (5) also apply to a person exercising a function for the purpose of the discharge of functions under this Part by the persons mentioned in subsection (3).

(9) The power to impose requirements under subsection (5)(c) does not include the power to impose requirements in respect of the disclosure of personal data to a person who is not the data subject, except for cases where the person is the parent of a child and the data subject is the child; ...

(9A) In subsection (9)—

“data subject” (“testun y data”) has the meaning given by section 3(5) of the Data Protection Act 2018;

“personal data” (“data personol”) has the same meaning as in Parts 5 to 7 of that Act (see section 3(2) and (14) of that Act).

(10) The Education Tribunal for Wales must have regard to any provision of the code that appears to it to be relevant to a question arising on an appeal under this Part.

(11) The Welsh Ministers must publish the code for the time being in force on their website.

Procedure for making the code

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(1) Before issuing or revising a code under section 4, the Welsh Ministers must consult the following persons on a draft of the code—

(a) each local authority;

(b) the governing body of each maintained school in Wales;

(d) Her Majesty's Chief Inspector of Education and Training in Wales;

(e) the Children's Commissioner for Wales;

(f) the Welsh Language Commissioner;

(g) the relevant committee of the National Assembly for Wales with remit for the education of children and young persons;

(h) any other person the Welsh Ministers consider appropriate.

(2) If the Welsh Ministers wish to proceed with the draft (with or without modifications) they must lay a copy of the draft before the National Assembly for Wales.

(3) The Welsh Ministers must not issue a code unless a draft of it is approved by a resolution of the National Assembly for Wales.

(4) If the National Assembly for Wales resolves to approve a draft of the code—

(a) the Welsh Ministers must issue the code in the form of the draft, and

(b) the code comes into force on a day appointed by the Welsh Ministers in an order made by statutory instrument.

(5) An order under subsection (4)(b) may—

(a) appoint different days for different purposes;

(b) make transitory, transitional or saving provision in connection with the coming into force of a provision in the code.

(6) References in this section to a code include a revised code.

(7) The requirement to consult imposed by subsection (1) may be satisfied by consultation undertaken before the coming into force of this Part.

Participation, United Nations conventions and access to information

Duty to involve and support children, their parents and young people

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A person exercising functions under this Part in relation to a child or young person must have regard—

(a) to the views, wishes and feelings of the child and the child's parent or the young person,

(b) to the importance of the child and the child's parent or the young person participating as fully as possible in decisions relating to the exercise of the function concerned, and

(c) to the importance of the child and the child's parent or the young person being provided with the information and support necessary to enable participation in those decisions.

Duty to have regard to the United Nations Convention on the Rights of the Child

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(1) A relevant body exercising functions under this Part in relation to a child or young person must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”).

(2) For the purposes of subsection (1), Part 1 of the Convention is to be treated as having effect—

(a) as set out for the time being in Part 1 of the Schedule to the Rights of Children and Young Persons (Wales) Measure 2011 (nawm 2), but

(b) subject to any declaration or reservation as set out for the time being in Part 3 of that Schedule.

(3) Subsection (1) does not require specific consideration of the Convention on each occasion that a function is exercised.'

(4) A code issued under section 4 may make provision setting out what is required to discharge the duty in subsection (1); and subsection (1) is to be interpreted in accordance with any such provision.

(5) In subsection (1), “relevant body” means—

(a) a local authority;

(b) an NHS body.

Duty to have regard to the United Nations Convention on the Rights of Persons with Disabilities

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(1) A relevant body exercising functions under this Part in relation to a disabled child or young person must have due regard to the United Nations Convention on the Rights of Persons with Disabilities and its optional protocol adopted on 13 December 2006 by General Assembly resolution A/RES/61/106 and opened for signature on 30 March 2007 (“the Convention”).

(2) The Convention is to be treated as having effect subject to any declaration or reservation made by the United Kingdom Government upon ratification, save where the declaration or reservation has subsequently been withdrawn.

(3) Subsection (1) does not require specific consideration of the Convention on each occasion that a function is exercised.

(4) A code issued under section 4 may make provision setting out what is required to discharge the duty in subsection (1); and subsection (1) is to be interpreted in accordance with any such provision.

(5) In subsection (1), “relevant body” means—

(a) a local authority;

(b) an NHS body.

Advice and information

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(1) A local authority must make arrangements to provide people with information and advice about additional learning needs and the system for which provision is made by this Part.

(2) In making arrangements under subsection (1), a local authority must have regard to the principle that information and advice provided under the arrangements must be provided in an impartial manner.

(3) A local authority must take reasonable steps to make the arrangements made under this section, sections 68 (avoidance and resolution of disagreements) and 69 (independent advocacy services) known to—

(a) children and young people in its area,

(b) parents of children in its area,

(d) governing bodies of maintained schools in its area,

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