Textual Amendments
F1Pt. IV: Chapter heading, cross-heading and s. 28A inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 11(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1
Textual Amendments
F2Pt. IV Ch. 1: Cross-heading and s. 28H inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 17(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1
Valid from 01/09/2002
(1)The Special Educational Needs Tribunal—
(a)is to continue to exist; but
(b)after the commencement date is to be known as the Special Educational Needs and Disability Tribunal.
(2)It is referred to in this Chapter as “the Tribunal”.
(3)In addition to its jurisdiction under Part 4 of the Education Act 1996, the Tribunal is to exercise the jurisdiction conferred on it by this Chapter.
(4)“Commencement date” means the day on which section 17 of the Special Educational Needs and Disability Act 2001 comes into force.]
Textual Amendments
F3S. 28H inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 17(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1
Prospective
(1)A claim that a responsible body—
(a)has discriminated against a person (“A”) in a way which is made unlawful under this Chapter, or
(b)is by virtue of section 58 to be treated as having discriminated against a person (“A”) in such a way,
may be made to the [F6appropriate tribunal] by A’s parent.
(2)But this section does not apply to a claim to which section 28K or 28L applies.
(3)If the [F6appropriate tribunal] considers that a claim under subsection (1) is well founded—
(a)it may declare that A has been unlawfully discriminated against; and
(b)if it does so, it may make such order as it considers reasonable in all the circumstances of the case.
(4)The power conferred by subsection (3)(b)—
(a)may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates; but
(b)does not include power to order the payment of any sum by way of compensation.
[F7(5)Subject to regulations under section 28J(8), the appropriate tribunal—
(a)for a claim against the responsible body for a school in England, is the [F8First-tier Tribunal],
(b)for a claim against the responsible body for a school in Wales, is the Welsh Tribunal.]]
Textual Amendments
F4S. 28I inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 18 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1
F5S. 28I: words in heading inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 9(1), 26
F6Words in s. 28I(1)(3) substituted (1.9.2003) by 2002 c. 32, s. 195, Sch. 18 para. 9(2) (with ss. 210(8), 214(4), Sch. 18 para. 17); S.I. 2002/3185, art. 6, Sch. Pt. III
F7S. 28I(5) inserted (1.9.2003) by 2002 c. 32, s. 195, Sch. 18 para. 9(3) (with ss. 210(8), 214(4), Sch. 18 para. 17); S.I. 2002/3185, art. 6, Sch. Pt. III
F8Words in s. 28I(5)(a) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 9(1), Sch. 3 para. 116
Prospective
(1)A claim that a responsible body for a school in Wales—
(a)has discriminated against a person (“the relevant person”) in a way which is made unlawful under this Chapter, or
(b)is by virtue of section 58 to be treated as having discriminated against the relevant person in such a way,
may be made to the Welsh Tribunal by that relevant person.
(2)But this section does not apply to a claim to which section 28K or 28L applies.
(3)The relevant person's right to claim is exercisable concurrently with the right of the relevant person's parent under section 28I.
(4)If the Welsh Tribunal considers that a claim under subsection (1) is well founded—
(a)it may declare that the relevant person has been unlawfully discriminated against, and
(b)if it does so, it may make such order as it considers reasonable in all the circumstances of the case.
(5)The power conferred by subsection (4)(b)—
(a)may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates, but
(b)does not include power to order the payment of any sum by way of compensation.
(6)The exercise of rights under this section is subject to provision made by regulations under sections 28IB and 28J.
Prospective
(1)The Welsh Ministers may by regulations provide for—
(a)a disabled child in a local authority area in Wales to have a person to make representations on behalf of the disabled child with a view to avoiding or resolving disagreements about matters made unlawful under this chapter or to be treated as discrimination by virtue of section 58, and
(b)a relevant person (within the meaning of section 28IA) to have another person to exercise the relevant person's rights under that section on the relevant person's behalf.
(2)A person exercising rights or making representations on behalf of a disabled child or a relevant person under subsection (1) is referred to in this Part as a “case friend”.
(3)A case friend must—
(a)make representations and exercise rights fairly and competently;
(b)have no interest adverse to that of the disabled child or relevant person;
(c)ensure that all steps and decisions taken by the case friend are for the benefit of the disabled child or relevant person and take account of the disabled child or relevant person's views.
(4)Regulations made under this section may (among other things)—
(a)confer functions on the Welsh Tribunal;
(b)make provision about procedures in relation to case friends;
(c)make provision about the appointment and removal of case friends;
(d)specify the circumstances in which a person may or may not act as a case friend;
(e)specify the circumstances in which a relevant person (within the meaning of section 28IA) must have a case friend;
(f)specify further requirements in respect of the conduct of case friends.
(5)In this section, sections 28IC, 28ID and 28IE, a disabled child means any disabled person who is a pupil (or a prospective pupil) of—
(a)a maintained school or maintained nursery school,
(b)a pupil referral unit,
(c)an independent school, or
(d)a special school not maintained by a local authority.
(6)In this section, sections 28IC, 28ID and 28IE "local authority" has the meaning given by section 579(1) of the Education Act 1996.
Prospective
(1)A local authority in Wales must arrange for any disabled child in their area and for the case friend of any such child to be provided with advice and information about matters relating to disability discrimination in schools.
(2)In making the arrangements, the authority must have regard to any guidance given by the Welsh Ministers.
(3)The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.
(4)The authority must take such steps as they consider appropriate for making the services provided under subsection (1) known to—
(a)disabled children in their area,
(b)parents of disabled children in their area,
(c)head teachers and proprietors of schools in their area, and
(d)such other persons as they consider appropriate.
Prospective
(1)A local authority in Wales must make arrangements with a view to avoiding or resolving disagreements between responsible bodies and disabled children in their area about matters made unlawful under this chapter or to be treated as discrimination by virtue of section 58.
(2)The arrangements must provide for the appointment of independent persons with the functions of facilitating the avoidance or resolution of such disagreements.
(3)In making the arrangements, the authority must have regard to any guidance given by the Welsh Ministers.
(4)The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.
(5)The authority must take such steps as they consider appropriate for making the arrangements under subsection (1) known to—
(a)disabled children in their area,
(b)parents of disabled children in their area,
(c)head teachers and proprietors of schools in their area, and
(d)such other persons as they consider appropriate.
(6)The arrangements cannot affect the entitlement of any person to make a claim to the Welsh Tribunal, and the authority must take such steps as they consider appropriate to make that fact known to disabled children, to parents of disabled children and to case friends for disabled children in their area.
Prospective
(1)Every local authority in Wales must—
(a)make arrangements for the provision of independent advocacy services in their area;
(b)refer any disabled child in their area who requests independent advocacy services to a service provider;
(c)refer any person who is a case friend for a disabled child in their area and who requests independent advocacy services to a service provider.
(2)In this section “independent advocacy services” are services providing advice and assistance (by way of representation or otherwise) to a disabled child who is—
(a)making, or intending to make a claim that a responsible body—
(i)has discriminated against that child in a way which is unlawful under this Chapter, or
(ii)is by virtue of section 58 to be treated as having discriminated against that child in such a way; or
(b)considering whether to make such a claim; or
(c)taking part in or intending to take part in dispute resolution arrangements made under section 28ID.
(3)In making arrangements under this section, every local education authority must have regard to the principle that any services provided under the arrangements must be independent of any person who is—
(a)the subject of a claim to the Welsh Tribunal, or
(b)involved in investigating or adjudicating on such a claim.
(4)The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.
(5)Every local authority in Wales must take such steps as they consider appropriate for making the arrangements under this section known to—
(a)disabled children in their area,
(b)parents of disabled children in their area,
(c)head teachers and proprietors of schools in their area, and
(d)such other persons as they consider appropriate.
(6)The arrangements may include provision for payments to be made to, or in relation to, any person carrying out functions in accordance with the arrangements.
(7)A local authority must have regard to any guidance given from time to time by the Welsh Ministers.
(1)Regulations may make provision about—
(a)the proceedings of the Tribunal on a claim of unlawful discrimination under this Chapter; and
(b)the making of a claim.
(2)The regulations may, in particular, include provision—
(a)as to the manner in which a claim must be made;
(b)if the jurisdiction of the Tribunal is being exercised by more than one tribunal—
(i)for determining by which tribunal any claim is to be heard, and
(ii)for the transfer of proceedings from one tribunal to another;
(c)for enabling functions which relate to matters preliminary or incidental to a claim (including, in particular, decisions under paragraph 10(3) of Schedule 3) to be performed by the President, or by the chairman;
(d)enabling hearings to be conducted in the absence of any member other than the chairman;
(e)as to the persons who may appear on behalf of the parties;
(f)for granting any person such disclosure or inspection of documents or right to further particulars as might be granted by a county court;
(g)requiring persons to attend to give evidence and produce documents;
(h)for authorising the administration of oaths to witnesses;
(i)for the determination of claims without a hearing in prescribed circumstances;
(j)as to the withdrawal of claims;
(k)for enabling the Tribunal to stay proceedings on a claim;
(l)for the award of costs or expenses;
(m)for taxing or otherwise settling costs or expenses (and, in particular, for enabling costs to be taxed in the county court);
(n)for the registration and proof of decisions and orders; and
(o)for enabling prescribed decisions to be reviewed, or prescribed orders to be varied or revoked, in such circumstances as may be determined in accordance with the regulations.
(3)Proceedings before the Tribunal are to be held in private, except in prescribed circumstances.
(4)Unless made with the agreement of the National Assembly, regulations made under this section do not apply to Wales.
(5)The Secretary of State may pay such allowances for the purpose of or in connection with the attendance of persons at the Tribunal as he may, with the consent of the Treasury, determine.
(6)In relation to Wales, the power conferred by subsection (5) may be exercised only with the agreement of the National Assembly.
(7)Part 1 of the Arbitration Act 1996 does not apply to proceedings before the Tribunal but regulations may make provision, in relation to such proceedings, corresponding to any provision of that Part.
(8)The regulations may make provision for a claim under this Chapter to be heard, in prescribed circumstances, with an appeal under Part 4 of the Education Act 1996.
(9)A person who without reasonable excuse fails to comply with—
(a)a requirement in respect of the disclosure or inspection of documents imposed by the regulations by virtue of subsection (2)(f), or
(b)a requirement imposed by the regulations by virtue of subsection (2)(g),
is guilty of an offence.
(10)A person guilty of an offence under subsection (9) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(11)Part 3 of Schedule 3 makes further provision about enforcement of this Chapter and about procedure.]
Textual Amendments
F9S. 28J inserted (1.7.2002 for certain purposes otherwise 1.9.2002) by 2001 c. 10, s. 19(1) (with s. 43(13)); S.I. 2002/1721, art. 3, Sch. Pt. I; S.I. 2002/2217, art. 3, Sch. 1 Pt. I
Valid from 03/11/2008
(1)A party to any proceedings under this Chapter before the Welsh Tribunal may appeal to the Upper Tribunal on any point of law arising from a decision made by the Welsh Tribunal in those proceedings.
(2)An appeal may be brought under subsection (1) only if, on an application made by the party concerned, the Welsh Tribunal or the Upper Tribunal has given its permission for the appeal to be brought.
(3)Section 12 of the Tribunals, Courts and Enforcement Act 2007 (proceedings on appeal to Upper Tribunal) applies in relation to appeals to the Upper Tribunal under this section as it applies in relation to appeals to it under section 11 of that Act, but as if references to the First-tier Tribunal were references to the Welsh Tribunal.]
Textual Amendments
F10S. 28JA inserted (E.W.S.) (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 9(1), Sch. 3 para. 118
Prospective
(1)If the condition mentioned in subsection (2) is satisfied, this section applies to a claim in relation to an admissions decision that a responsible body—
(a)has discriminated against a person (“A”) in a way which is made unlawful under this Chapter; or
(b)is by virtue of section 58 to be treated as having discriminated against a person (“A”) in such a way.
(2)The condition is that arrangements (“appeal arrangements”) have been made—
(a)under section 94 of the School Standards and Framework Act 1998, or
(b)under an agreement entered into between the responsible body for a city academy and the Secretary of State under section 482 of the Education Act 1996,
enabling an appeal to be made against the decision by A’s parent.
(3)The claim must be made under the appeal arrangements.
(4)The body hearing the claim has the powers which it has in relation to an appeal under the appeal arrangements.
(5)“Admissions decision” means—
(a)a decision of a kind mentioned in section 94(1) or (2) of the School Standards and Framework Act 1998;
(b)a decision as to the admission of a person to a city academy taken by the responsible body or on its behalf.]
Prospective
(1)If the condition mentioned in subsection (2) is satisfied, this section applies to a claim in relation to an exclusion decision that a responsible body—
(a)has discriminated against a person (“A”) in a way which is made unlawful under this Chapter; or
(b)is by virtue of section 58 to be treated as having discriminated against a person (“A”) in such a way.
(2)The condition is that arrangements (“appeal arrangements”) have been made—
(a)under section 67(1) of the School Standards and Framework Act 1998, or
(b)under an agreement entered into between the responsible body for a city academy and the Secretary of State under section 482 of the Education Act 1996,
enabling an appeal to be made against the decision by A or by his parent.
(3)The claim must be made under the appeal arrangements.
(4)The body hearing the claim has the powers which it has in relation to an appeal under the appeal arrangements.
(5)“Exclusion decision” means—
(a)a decision of a kind mentioned in section 67(1) of the School Standards and Framework Act 1998;
(b)a decision not to reinstate a pupil who has been permanently excluded from a city academy by its head teacher, taken by the responsible body or on its behalf.
(6)“Responsible body”, in relation to a maintained school, includes the discipline committee of the governing body if that committee is required to be established as a result of regulations made under paragraph 4 of Schedule 11 to the School Standards and Framework Act 1998.
(7)“Maintained school” has the meaning given in section 28Q(5).]
Prospective
(1)If the appropriate authority is satisfied (whether on a complaint or otherwise) that a responsible body—
(a)has acted, or is proposing to act, unreasonably in the discharge of a duty imposed by or under section 28D or 28E, or
(b)has failed to discharge a duty imposed by or under either of those sections,
it may give that body such directions as to the discharge of the duty as appear to it to be expedient.
[F15(1A)If the Welsh Ministers are satisfied (whether on a complaint or otherwise) that a local authority—
(a)has acted, or is proposing to act, unreasonably in the discharge of a duty imposed by or under sections 28IC, 28ID or 28IE, or
(b)has failed to discharge a duty imposed by or under any of those sections,
they may give that body such directions as to the discharge of the duty as appear to them to be expedient.]
(2)Subsection (3) applies in relation to—
[F16(a)schools approved under section 342 of the Education Act 1996 (non-maintained special schools); and]
(b)city academies.
(3)If the appropriate authority is satisfied (whether on a complaint or otherwise) that a responsible body—
(a)has acted, or is proposing to act, unreasonably in the discharge of a duty which that body has in relation to—
(i)the provision to the appropriate authority of copies of that body’s accessibility plan, or
(ii)the inspection of that plan, or
(b)has failed to discharge that duty,
it may give that body such directions as to the discharge of the duty as appear to it to be expedient.
(4)Directions may be given under subsection (1) [F18, (1A) ] or (3) even if the performance of the duty is contingent upon the opinion of the responsible body.
(5)Subsection (6) applies if the [F19First-tier Tribunal] [F20[F21or the Welsh Tribunal]] has made an order under section 28I(3).
(6)If the Secretary of State is satisfied (whether on a complaint or otherwise) that the responsible body concerned—
(a)has acted, or is proposing to act, unreasonably in complying with the order, or
(b)has failed to comply with the order,
he may give that body such directions as to compliance with the order as appear to him to be expedient.
[F22(6A)Subsection (6B) applies if the Welsh Tribunal has made an order under section 28I(3) or section 28IA(4).
(6B)If the Welsh Ministers are satisfied (whether on a complaint or otherwise) that the responsible body concerned—
(a)has acted, or is proposing to act, unreasonably in complying with the order, or
(b)has failed to comply with the order,
they may give that body such directions as to compliance with the order as appear to them to be expedient.]
(7)Directions given under subsection (1), [F23(1A), ](3) [F24or ](6) [F25or (6B) ]—
(a)may be varied or revoked by the directing authority; and
(b)may be enforced, on the application of the directing authority, by a mandatory order obtained in accordance with section 31 of the Supreme Court Act 1981.
[F26(7A)The Secretary of State may not, unless subsection (7B) applies, give a direction under this section to a responsible body in England in respect of a matter that—
(a)has been complained about to a Local Commissioner in accordance with Chapter 2 of Part 10 of the Apprenticeships, Skills, Children and Learning Act 2009 (parental complaints against governing bodies etc.), or
(b)in the Secretary of State's opinion, could have been so complained about.
(7B)This subsection applies if—
(a)the Local Commissioner has made a recommendation to the responsible body under section 211(4) of the Apprenticeships, Skills, Children and Learning Act 2009 (statement following investigation) in respect of the matter, and
(b)the responsible body has not complied with the recommendation.]
(8)“Appropriate authority” means—
(a)in relation to England, the Secretary of State; and
(b)in relation to Wales, the [F27Welsh Ministers].
(9)“Directing authority” means—
(a)the Secretary of State in relation to a direction given by him; and
(b)the [F28Welsh Ministers] in relation to a direction given by [F28 them].]
Textual Amendments
F13S. 28M inserted (E.W.S.) (1.9.2002 for certain purposes and 8.10.2003 in so far as not already in force) by 2001 c. 10, ss. 22, 43(3) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1; S.I. 2003/2532, art. 2, Sch.
F14S. 28M: words in heading substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(2), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.
F15S. 28M(1A) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(2), 26 (as amended (5.5.2010) by S.I. 2010/1148, arts. 1, 5(2))
F16S. 28M(2)(a) substituted (prosp.) by Education and Skills Act 2008 (c. 25), ss. 169, 173, Sch. 1 para. 3
F17Words in s. 28M(2)(a) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(3), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.
F18Word in s. 28M(4) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(3), 26
F19Words in s. 28M(5) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 9(1), Sch. 3 para. 119
F20Words in S. 28M(5) omitted (W.) (prosp.) by virtue of Education (Wales) Measure 2009 (nawm 5), ss. 15(4), 26
F21Words in s. 28M(5) inserted (1.9.2003) by 2002 c. 32, s. 195, Sch. 18 para. 11 (with ss. 210(8), 214(4), Sch. 18 para. 17); S.I. 2002/3185, art. 6, Sch. Pt. III
F22S. 28M(6A)(6B) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(5), 26
F23Word in s. 28M(7) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(6), 26
F24Word in s. 28M(7) repealed (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(6), 26
F25Words in s. 28M(7) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(6), 26
F26S. 28M(7A)(7B) inserted (19.4.2010 for specified purposes, 1.9.2010 for specified purposes, otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 221(3), 269(4); S.I. 2010/303, art. 5, Sch. 4 (with arts. 8-12); S.I. 2010/1151, art. 4, Sch. 2 (with arts. 5 - 20)
F27Words in s. 28M(8)(b) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(4), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.
F28Words in s. 28M(9)(b) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(5), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.