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The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Commencement No. 9 and Transitional and Saving Provisions) Order 2022

Type Welsh-Statutory-Instrument

Publication 2022-08-16

State In force

Jurisdiction Wales

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

articles 4

Reform history JSON API PDF

Made: 16 August 2022

The Welsh Ministers, in exercise of the powers conferred by section 100(3) and (4) of the Additional Learning Needs and Education Tribunal (Wales) Act 2018[^f00001], make the following Order:

Title and interpretation

1

(1) The title of this Order is the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Commencement No. 9 and Transitional and Saving Provisions) Order 2022.

(2) In this Order—

“the 1996 Act” (“Deddf 1996”) means the Education Act 1996[^f00002];

“the Act” (“y Ddeddf”) means the Additional Learning Needs and Education Tribunal (Wales) Act 2018;

“child” (“plentyn”) means a person who is not over compulsory school age;

“code” (“cod”) means a code on additional learning needs issued under section 4 of the Act;

“compulsory school age” (“oedran ysgol gorfodol”) has the same meaning as in section 8[^f00003] of the 1996 Act;

“in the area” (“yn ardal”) has the same meaning as in section 579(3B)[^f00004] of the 1996 Act;

“individual development plan” (“cynllun datblygu unigol”) means a plan prepared and maintained under Chapter 2 of Part 2 of the Act;

“local authority” (“awdurdod lleol”) has the same meaning as in section 99 of the Act;

“looked after child” (“plentyn sy’n derbyn gofal”) has the same meaning as in section 15 of the Act;

“parent” (“rhiant”) has the same meaning as in section 576[^f00005] of the 1996 Act;

“Tribunal” (“Tribiwnlys”) means the Education Tribunal for Wales[^f00006];

“Tribunal Rules” (“Rheolau’r Tribiwnlys”) means Special Educational Needs Tribunal for Wales Regulations 2012[^f00007].

(3) References in this Order to “the old law” are to Chapter 1 of Part 4 of the 1996 Act.

(4) References in this Order to “the new law” are to—

(a) the Act,

(b) a regulation or the code made under that Act, and

(i) a provision of the Act or such regulations or code, or

(ii) a person to whom the Act or such regulations or code applies.

(5) For the purposes of this Order an appeal is finally determined if it is withdrawn, or if—

(a) a decision is made by a tribunal or court on the appeal, and

(b) if a request may be made to review the decision or it may be further appealed, and the period (or each of the periods) for doing so expires without a review being requested or further appeal being made.

(6) For the purposes of this Order, a local authority is responsible for a child if he or she is in the area of the authority.

(7) For the purposes of this Order, where a child is—

(a) a looked after child, the appropriate local authority is the local authority that looks after the child;

(b) not a looked after child, the appropriate local authority is the local authority responsible for the child.

(8) For the purposes of this Order, a matter is ongoing when—

(a) a local authority has served a notice under section 323 of the 1996 Act and the assessment has not commenced and no notice has been given under section 323(6) of the 1996 Act;

(b) a request has been made under section 329 or 329A of the 1996 Act for an assessment under section 323 of the 1996 Act and the local authority has not determined whether to comply with the request;

(c) a request has been made under section 329 or 329A of the 1996 Act for an assessment under section 323 of the 1996 Act and the local authority determines not to comply with the request and—

(i) the time within which an appeal under section 329(2) or 329A(8) of the 1996 Act has to be made under Part B of the Tribunal Rules has not expired;

(ii) an appeal to the Tribunal under section 329(2) or 329A(8) of the 1996 Act in relation to that determination has been made but not finally determined; or

(iii) an appeal to the Tribunal under section 329(2) or 329A(8) of the 1996 Act in relation to that determination was finally determined and the local authority was ordered to arrange an assessment, and that assessment has not commenced;

(d) a local authority is undertaking an assessment of educational needs under section 323 of the 1996 Act;

(e) a local authority proposes not to make a statement following an assessment and—

(i) the period within which an appeal under section 325(2) of the 1996 Act has to be made under Part B of the Tribunal Rules has not expired;

(ii) an appeal to the Tribunal under section 325(2) of the 1996 Act in relation to that decision has been made but not finally determined; or

(iii) an appeal to the Tribunal under section 325(2) of the 1996 Act in relation to that decision was made and finally determined and the local authority was ordered to—

(aa) make and maintain a statement and the making of the statement has not commenced; or

(bb) reconsider its decision and that reconsideration has not commenced;

(f) a local authority must make a statement under section 324 of the 1996 Act but the making of the statement has not commenced;

(g) a local authority must make a statement under section 324 of the 1996 Act but the statement has not been made;

(h) an assessment under section 331 of the 1996 Act is ongoing.

(9) For the purposes of this Order, an appeal is ongoing when—

(a) a request has been made under section 329 or 329A of the 1996 Act for an assessment under section 323 of the 1996 Act and the local authority determines not to comply with the request and—

(i) an appeal to the Tribunal under section 329(2) or 329A(8) of the 1996 Act in relation to that determination has been made but not finally determined; or

(ii) an appeal to the Tribunal under section 329(2) or 329A(8) of the 1996 Act in relation to that determination was finally determined and the local authority was ordered to arrange an assessment, and that assessment has not commenced;

(b) a local authority proposes not to make a statement following an assessment and—

(i) an appeal to the Tribunal under section 325(2) of the 1996 Act in relation to that decision has been made but not finally determined; or

(ii) an appeal to the Tribunal under section 325(2) of the 1996 Act in relation to that decision was made and finally determined and the local authority was ordered to—

(aa) make and maintain a statement and the making of the statement has not commenced; or

(bb) reconsider its decision and that reconsideration has not commenced.

Application of this Order

2

This Order applies to a child in relation to whom there is a matter ongoing on 1 September 2022.

Provisions coming into force on 1 September 2022

3

The following provisions of the Act come into force on 1 September 2022 in relation to a child to whom this Order applies—

(a) sections 2 to 4;

(b) sections 6 to 14;

(d) section 38;

(e) sections 40 to 44;

(f) sections 47 to 49;

(g) section 50(1) for the purposes of the provisions in paragraph (h);

(h) section 50(4) and (5);

(i) sections 51 to 53;

(j) section 55;

(k) section 59;

(l) sections 63 to 66;

(m) sections 68 and 69;

(n) section 96 for the purposes of the provisions in paragraph (o);

(o) in the Schedule—

(i) paragraph 1;

(ii) paragraph 4(1) for the purposes of the provisions in sub-paragraphs (iii) to (xi);

(iii) paragraph 4(2) to 4(6);

(iv) paragraph 4(7) to the extent that the paragraph has not been repealed in relation to the child[^f00008];

(v) paragraph 4(8) and (9);

(vi) paragraph 4(10);

(vii) paragraph 4(13) to 4(18);

(viii) paragraph 4(19)(b);

(ix) paragraph 4(20) and 4(21);

(x) paragraph 4(23) to 4(29);

(xi) paragraph 4(32)(a)(i) and (ii) and paragraph 4(32)(b);

(xii) paragraph 7;

(xiii) paragraph 8;

(xiv) paragraph 11(a);

(xv) paragraph 12(a);

(xvi) paragraph 14(1) for the purposes of the provisions in sub-paragraph (xvii);

(xvii) paragraph 14(2) and (3);

(xviii) paragraph 19(1) for the purpose of the provision in sub-paragraph (xix);

(xix) paragraph 19(5)(e)(ii);

(xx) paragraph 21(1) for the purposes of the provisions in sub-paragraph (xxi);

(xxi) paragraph 21(2)(a)(i) and (2)(b)(ii);

(xxii) paragraph 22;

(xxiii) paragraph 23(1) for the purpose of the provision in sub-paragraph (xxiv);

(xxiv) paragraph 23(4);

(xxv) paragraph 24(1) for the purposes of the provisions in sub-paragraph (xxvi);

(xxvi) paragraph 24(3) and (6)(a).

Saving provision

4

Subject to articles 9 and 10 and articles 12 to 15, despite the disapplication by section 96 and paragraph 4(9) of the Schedule to the Act of Chapter 1 of Part 4 of the 1996 Act[^f00009] in relation to a child to whom this Order applies—

(a) the old law continues to have effect in relation to that child, and

(b) the new law does not have effect in relation to that child.

IDP notice

5

An IDP notice is a notice given to a child and a child’s parent which confirms that—

(a) the child has additional learning needs for the purposes of Chapter 2 of Part 2 of the Act, and

(b) an individual development plan will be prepared for the child.

No IDP notice

6

A No IDP notice is a notice given to a child and a child’s parent which confirms that the appropriate local authority has decided that the child does not have additional learning needs for the purposes of Chapter 2 of Part 2 of the Act.

Effect of IDP notice

7

The effect of the IDP notice is that—

(a) the appropriate local authority is deemed to have decided on the date of the notice that the child has additional learning needs under Chapter 2 of Part 2 of the Act,

(b) the new law applies in relation to the child on that date, and

Effect of No IDP notice

8

The effect of the No IDP notice is that—

(a) the appropriate local authority is deemed to have decided on the date of the notice that the child does not have additional learning needs under Chapter 2 of Part 2 of the Act,

(b) the new law applies in relation to the child on that date, and

Duty to give a notice

9

(1) Where a local authority has served a notice under section 323 of the 1996 Act, and that assessment has not commenced by 1 September 2022, the appropriate local authority must either give an IDP notice or a No IDP notice to the child and the child’s parent as soon as reasonably practicable after 1 September 2022.

(2) Where a request is made under section 329 or 329A of the 1996 Act and on 1 September 2022 the local authority has not determined whether to comply with the request, the appropriate local authority must either give an IDP notice or a No IDP notice to the child and the child’s parent as soon as reasonably practicable after 1 September 2022.

(3) Where a local authority is conducting an assessment under section 323 or 331 of the 1996 Act on 1 September 2022, the appropriate local authority must either give an IDP notice or a No IDP notice to the child and the child’s parent as soon as reasonably practicable after 1 September 2022.

(4) Where the period for bringing an appeal under section 325(2), 329(2) or 329A(8) of the 1996 Act has not expired on 1 September 2022, the appropriate local authority must either give an IDP notice or a No IDP notice to the child and the child’s parent as soon as reasonably practicable after 1 September 2022.

(5) Where an appeal has been made to the Tribunal under section 325(2), 329(2) or 329A(8) of the 1996 Act and that appeal is ongoing on 1 September 2022, the appropriate local authority must either give an IDP notice or a No IDP notice to the child and the child’s parent as soon as reasonably practicable after that appeal is finally determined.

(6) Where a local authority must make a statement under section 324 of the 1996 Act and on 1 September 2022 the making of the statement has not commenced or the statement has not been made, the appropriate local authority must either give an IDP notice or a No IDP notice to the child and the child’s parent as soon as reasonably practicable after 1 September 2022.

Right to request an IDP notice or a No IDP notice

10

(1) A child to whom this Order applies or that child’s parent may request that the appropriate local authority gives an IDP notice or a No IDP notice and the local authority must give either an IDP notice or a No IDP notice as soon as reasonably practicable after the request.

(2) The duty to give an IDP notice or a No IDP notice in paragraph (1) does not apply when—

(a) an appeal is ongoing in relation to that child, or

(b) articles 12 to 15 apply.

Time for giving an individual development plan

11

(1) When an IDP notice is given pursuant to article 9 or 10 a copy of the individual development plan must be given to the child and the child’s parent within 12 weeks of the date of the notice unless—

(a) any of the circumstances in section 12(2) of the Act apply,

(b) section 31 of the Act applies, or

(2) If any of the circumstances in section 12(2) apply or there are exceptional circumstances a copy of the individual development plan must be given as soon as is reasonably practicable.

(3) Any timescales in the code relating to the preparation of an individual development plan do not apply when an individual development plan is prepared following the giving of an IDP notice.

Children for whom the new law does not apply by a certain date

12

(1) This article applies to a child—

(a) in relation to whom there is no ongoing appeal on 30 August 2024,

(b) to whom article 13 does not apply, and

(2) On 31 August 2024—

(a) the new law applies in relation to the child, and

(b) the old law ceases to apply in relation to the child.

13

(1) This article applies to a child where the local authority is ordered to perform an action as a result of an ongoing appeal being finally determined and the action has not been performed by 30 August 2024.

(2) On the transfer day—

(a) the new law applies in relation to the child, and

(b) the old law ceases to apply in relation to the child.

(3) In this article “transfer day” means the day after which the action referred to in paragraph (1) is performed, or all of the actions have been performed if there is more than one action.

14

(1) This article applies to a child where an appeal is ongoing on 30 August 2024 in relation to that child.

(2) On the transfer day—

(a) the new law applies in relation to the child, and

(b) the old law ceases to apply in relation to the child.

(3) In this article “transfer day” means—

(a) unless sub-paragraph (b) applies, the day after the appeal is finally determined;

(b) where the local authority is ordered to perform an action as a result of the ongoing appeal being finally determined, the day after which the action is performed, or all of the actions have been performed if there is more than one action.

Change of circumstances

15

(1) This article applies to a child—

(a) who moves from the area of the local authority in which the child was in on 1 September 2022,

(b) for whom a request for an IDP notice or a No IDP notice has not been made, and

(2) On the date that the child moves from the area of the local authority in which the child was in on 1 September 2022—

(a) the new law applies in relation to the child, and

(b) the old law ceases to apply in relation to the child.

Regard to special educational provision provided before IDP notice

16

Where an individual development plan is being prepared for a child within 12 weeks of moving to the new law, regard must be had to any special educational provision provided to the child immediately before moving to the new law.

Capacity of children

17

(1) Subject to paragraph, paragraph applies to a child in relation to whom there is a matter ongoing on 1 September 2022.

(2) Nothing in this article applies to a person when that person ceases to be of compulsory school age.

(3) A duty in paragraph (4) does not apply if the appropriate local authority considers that the child does not have capacity to understand the subject matter.

(4) The duties referred to in paragraph (3) are —

(a) the duty to give a child an IDP notice or a No IDP notice in article 9;

(b) the duty to give a notice following a request by a child under article 10;

(5) Where paragraph (3) applies in relation to a duty in paragraph (4)(a) or (b), the first reference to a child in article 5 is to be read as if it were omitted.

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