The Education (Special Educational Needs) (Wales) Regulations 2002

Made: 29th January 2002

Coming into force: 1st April 2002

The National Assembly for Wales, in exercise of the powers conferred on the Secretary of State by sections 316A(2), 322(4), 324(2), 325(2A) and (2B), 328(1), (3A), (3B) and (6), 329(2A), 329A(9), and 569(1), (2) and (4) of, and paragraphs 2, 3(1), (3) and (4) of Schedule 26, and paragraphs 2(3), 2B (3), 5(3), 6(3), 7(1) and (2), 8(3A) and (5), 11(2A) and (4) of Schedule 27 to, the Education Act 1996[^f00001], and now vested in the National Assembly for Wales[^f00002], hereby makes the following Regulations:

PART 1 — GENERAL

Citation and commencement

1

• (1) These Regulations may be cited as the Education (Special Educational Needs) (Wales) Regulations 2002.

• (2) These Regulations shall come into force on 1st April 2002.

• (3) These Regulations apply only in relation to Wales.

Interpretation

2

• (1) In these Regulations—

• “the 2021 Act” (“Deddf 2021”) means the Curriculum and Assessment (Wales) Act 2021;

• “the Act” (“y Ddeddf”) means the Education Act 1996;

• “annual review” (“adolygiad blynyddol”) means a review of a child’s statement of special educational needs carried out within 12 months of making the statement or the previous review under section 328(5)(b) of the Act;

• “assessment” (“asesiad”) means an assessment of a child’s educational needs under section 323 of the Act;

• “authority” means a local authority;

• “Careers Service” (“Gwasanaeth Gyrfaoedd”) means a body (whether or not having a distinct legal personality) established to provide careers services under sections 8 to 10 of the Employment and Training Act 1973[^f00003];

• “early education provider” (“darparydd addysg gynnar”) means a provider of relevant nursery education except that it shall not include an authority in respect of a maintained nursery school;

• “head of SEN” (“pennaeth AAA”) means the person responsible for co-ordinating the day to day provision of education for pupils with special educational needs;

• “head teacher” (“pennaeth”) includes any person to whom the duties or functions of a head teacher under these Regulations have been delegated by the head teacher in accordance with regulation 3;

• “health authority” (“awdurdod iechyd”) has the same meaning as in the National Health Service Act 1977 [^f00004];

• “the National Assembly” (“y Cynulliad Cenedlaethol”) means the National Assembly for Wales;

• “parent partnership services” (“gwasanaethau partneriaeth rhieni”) means the arrangements made by an authority under section 332A of the Act for the provision of advice and information about matters relating to special educational needs to parents of children with special educational needs;

• ...[^f00005]

• “social worker” means a person employed or engaged by the authority as a social worker;

• “statement” (“datganiad”) means a statement of a child’s special educational needs made under section 324 of the Act;

• “target” (“targed”) means the knowledge, skills and understanding which a child is expected to have by the end of a particular period;

• “tenth year of compulsory education” (“degfed flwyddyn o addysg orfodol”) means the ninth school year after the school year in which a child reaches compulsory school age;

• “transition plan” (“cynllun trosiannol”) means a document which sets out the appropriate arrangements for a young person during the period beginning with the commencement of the tenth year of compulsory education and ending when aged 19 years, including arrangements for special educational provision and for any other necessary provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood;

• “Tribunal” (“Tribiwnlys”) means the Special Educational Needs Tribunal having the jurisdiction granted to it by section 333 of the Act;

• “working day” (“diwrnod gwaith”) means a day other than a Saturday, Sunday, Christmas Day, Good Friday or Bank Holiday within the meaning of the Banking and Financial Dealings Act 1971[^f00006];

• “the 1994 Regulations” (“Rheoliadau 1994”) means the Education (Special Educational Needs) Regulations 1994[^f00007].

• (2) The expressions used in these Regulations set out in the first column of the table below have the meaning given by (or, as the case may be, are to be interpreted in accordance with), the provisions referred to in the second column of that table:

“compulsory school age” (“oedran ysgol gorfodol”)	Section 5 of the Act
“maintained school” (“ysgol a gynhelir”)	Section 312 of the Act
“parent” (“rhiant”)	Section 576 of the Act
“qualified teacher” (“athro neu athrawes gymwysedig”)	Section 218 of the Education Reform Act 1988[^f00008]
“relevant nursery education” (“addysg feithrin berthnasol”)	Section 509A(5) of the Act
“responsible body” (“corff cyfrifol”)	Section 329A(13) of the Act
“school day” (“diwrnod ysgol”)	Section 579(1) of the Act
“school year” (“blwyddyn ysgol”)	Section 579(1) of the Act
“special school” (“ysgol arbennig”)	Section 337 of the Act
“young offender institution” (“sefydliad tramgwyddwyr ifanc”)	Section 43 of the Prison Act 1952[^f00009]

• (3) In these Regulations any reference to the health authority ... is, in relation to a particular child, a reference to the health authority ... in whose area that child lives.

• (4) Where a thing is required to be done under these Regulations—

• (a) within a period after an action is taken, the day on which that action was taken shall not be counted in the calculation of that period, and

• (b) within a period and the last day of that period is not a working day, the period shall be extended to include the following working day.

• (5) Unless the context otherwise requires references in these Regulations—

• (a) to a section are references to a section of the Act;

• (b) to a Schedule are references to a Schedule of the Act;

• (c) to a regulation are references to a regulation in these Regulations.

Delegation of functions

3

Where a head teacher has any functions or duties under these Regulations he or she may delegate those functions or duties—

• (a) generally to a member of the staff of the school who is a qualified teacher, or

• (b) in a particular case to a member of the staff of the school who teaches the child in question.

Notices

4

Any notice required to be given by these Regulations shall be given in writing.

Service of documents

5

• (1) Where any provision in Part IV of the Act or in these Regulations authorises or requires any document to be served or sent to a person or any notice to be given to a person the document may be served or sent or the notice may be given by properly addressing, pre-paying and posting a letter containing the document or notice.

• (2) For the purposes of this regulation, the proper address of a person is—

• (a) in the case of the child’s parent, the parent’s last known address;

• (b) in the case of a head teacher or other member of the staff of a school, the school’s address;

• (c) in the case of any other person, the last known address of the place where the person carries on business, profession or other employment.

• (3) Where first class post is used, the document or notice shall be treated as served, sent or given on the second working day after the date of posting, unless the contrary is shown.

• (4) Where second class post is used, the document or notice shall be treated as served, sent or given on the fourth working day after the date of posting, unless the contrary is shown.

• (5) The date of posting shall be presumed, unless the contrary is shown, to be the date shown in the post-mark on the envelope in which the document is contained.

PART II — ASSESSMENTS

Notices relating to assessment

6

• (1) Paragraph (2) applies where—

• (a) under section 323(1) or 329A(3) an authority serve notice on a child’s parent that they are considering whether to make an assessment, or

• (b) no notice has been given in relation to a particular assessment under section 323(1) or 329A(3), and under section 323(4) or 329A(7) an authority give notice to a child’s parent of their decision to make an assessment.

• (2) Where this paragraph applies an authority shall send copies of the relevant notice—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) to the health authority,

• (c) if the child is registered at a school, to the head teacher of that school, or

• (d) if the child receives education from an early education provider, to the head of SEN in relation to that provider.

• (3) Where a copy of a notice is sent under paragraph (2) an endorsement on the copy or a notice accompanying that copy shall inform the recipient what help the authority are likely to request.

• (4) Where—

• (a) under section 328(2) or 329(1) a child’s parent asks an authority to arrange for an assessment, and

• (b) no assessment has been made for that child within the period of six months ending with the date on which the request is made

the authority shall give notice to the persons referred to in paragraph (2)(b) to (d) that the request has been made and inform them what help the authority are likely to request.

• (5) Where—

• (a) under section 329A(1) a responsible body asks an authority to arrange for an assessment, and

• (b) no assessment has been made for that child within the period of six months ending with the date on which the request is made

the authority shall give notice to the persons referred to in paragraph (2)(b) to (d) that the request has been made and inform them what help the authority are likely to request.

• (6) Where the head teacher at a school or head of SEN in relation to an early education provider is the responsible body referred to at paragraph (5)(a) the authority may—

• (a) choose not to serve a notice on the head teacher or head of SEN under paragraph (5), and

• (b) endorse the notice served on the responsible body under section 329A(7) or serve a further notice accompanying that notice informing the head teacher of the school or the head of SEN in relation to the early education provider of the help the authority are likely to request.

Advice to be sought

7

• (1) For the purpose of making an assessment an authority shall seek—

• (a) advice from the child’s parent;

• (b) educational advice as provided for in regulation 8;

• (c) medical advice from the health authority as provided for in regulation 9;

• (d) psychological advice as provided for in regulation 10;

• (e) advice from a social worker,

• (f) any other advice which the authority consider appropriate for the purpose of arriving at a satisfactory assessment.

• (2) The advice referred to in paragraph (1) shall be written advice relating to—

• (a) the educational, medical, psychological or other features of the case (according to the nature of the advice sought) which appear to be relevant to the child’s educational needs (including his likely future needs);

• (b) how those features could affect the child’s educational needs; and

• (c) the provision which is appropriate for the child in light of those features of the child’s case, whether by way of special educational provision or non-educational provision, but not relating to any matter which is required to be specified in a statement by virtue of section 324(4)(b).

• (3) A person from whom the advice referred to in paragraph (1) is sought may in connection therewith consult such persons as it appears to him or her expedient to consult; and he or she shall consult such persons, if any, as are specified in the particular case by the authority as persons who have relevant knowledge of, or information relating to, the child.

• (4) When seeking the advice referred to in paragraph (1)(b) to (f), an authority shall provide the person from whom it is sought with copies of—

• (a) any representations made by the parent, and

• (b) any evidence submitted by, or at the request of, the parent

under section 323(1)(d) or section 329A(3)(d) as the case may be.

• (5) The authority need not seek the advice referred to in paragraph (1)(b),(c),(d),(e) or (f) if—

• (a) the authority have obtained advice under paragraph (1)(b),(c),(d),(e) or (f) respectively within the preceding 12 months, and

• (b) the authority, the person from whom the advice was obtained and the child’s parent are satisfied that the existing advice is sufficient for the purpose of arriving at a satisfactory assessment.

Educational advice

8

• (1) The educational advice referred to in regulation 7(1)(b) shall, subject to paragraphs (2) to (5), be sought—

• (a) from the head teacher of any school which the child is currently attending;

• (b) if advice cannot be obtained from a head teacher of a school which the child is currently attending (because the child is not attending a school or otherwise) from a person who the authority are satisfied has experience of teaching children with special educational needs or knowledge of the differing provision which may be called for in different cases to meet those needs;

• (c) if the child is not currently attending a school and if advice obtained under subparagraph (b) is not advice from such a person, from a person responsible for educational provision for the child; and

• (d) if any of the child’s parents is a serving member of Her Majesty’s armed forces, from Service Children’s Education.

• (2) Subject to paragraph (3), the advice sought as provided in paragraph (1)(a) to (c) shall not be sought from any person who is not a qualified teacher.

• (3) If the advice sought as provided in paragraph 1(c) is to be obtained in respect of a child receiving education from an early education provider and there is no person responsible for that child’s educational provision who is a qualified teacher, advice shall be sought from a person responsible for the child’s educational provision who is not a qualified teacher.

• (4) The advice sought from a head teacher as provided in paragraph (1)(a) shall, if the head teacher has not taught the child within the preceding 18 months, be advice given after consultation with a teacher who has taught the child.

• (5) The advice sought from a head teacher as provided in paragraph (1)(a) shall include advice relating to the steps which have been taken by the school to identify and assess the special educational needs of the child and to make provision for the purpose of meeting those needs.

• (6) The advice sought under paragraphs (1)(b) or (1)(c) in relation to a child receiving education from an early education provider shall include advice relating to the steps which have been taken by the provider to identify and assess the special educational needs of the child and to make provision for meeting those needs.

• (7) Where it appears to the authority, in consequence of medical advice or otherwise, that the child in question is—

• (a) hearing impaired;

• (b) visually impaired; or

• (c) both hearing impaired and visually impaired,

and any person from whom advice is sought as provided in paragraph (1) is not qualified to teach pupils who are so impaired then the advice sought shall be advice given after consultation with a person who is so qualified.

• (8) For the purposes of paragraph (7) a person shall be considered to be qualified to teach pupils who are hearing impaired or visually impaired or who are both hearing impaired and visually impaired if that person is qualified to be employed at a school as a teacher of a class for pupils who are so impaired otherwise than to give instruction in a craft, trade, or domestic subject.

• (9) Paragraphs (4) and (7) are without prejudice to regulation 7(3).

Medical advice

9

The advice referred to in paragraph 7(1)(c) shall be sought from the health authority, who shall obtain the advice from a fully registered medical practitioner who holds a licence to practise.

Psychological advice

10

• (1) The psychological advice referred to in regulation 7(1)(d) shall be sought from a person—

• (a) regularly employed by the authority as an educational psychologist, or

• (b) engaged by the authority as an educational psychologist in the case in question.

• (2) The advice sought from a person as provided in paragraph (1) shall, if that person has reason to believe that another psychologist has relevant knowledge of, or information relating to, the child, be advice given after consultation with that other psychologist.

• (3) Paragraph (2) is without prejudice to regulation 7(3).

Matters to be taken into account in making an assessment

11

When making an assessment an authority shall take into consideration—

• (a) any representations made by the child’s parent under section 323(1)(d) or section 329A(3)(d);

• (b) any evidence submitted by, or at the request of, the child’s parent under section 323(1)(d) or section 329A(3)(d); and

• (c) the advice obtained under regulation 7.

Time limits and prescribed information

12

• (1) Where under section 323(1) an authority serve a notice on a child’s parent informing the parent that they are considering whether to make an assessment they shall within 6 weeks of the date of service of that notice give notice to the child’s parent of—