C12Part IV Special educational needs
C21F101Chapter I Children F176in wales with special educational needs
Pt. 4 Ch. 1 repealed (1.9.2021 for the repeal of ss. 333(1ZA)(2)-(6), 334-335 and otherwise in force for specified purposes, 1.1.2022 for specified purposes, 1.9.2022 for specified purposes) by Additional Learning Needs and Education Tribunal (Wales) Act 2018 (anaw 2), s. 100(3), Sch. 1 para. 4(9); S.I. 2021/373, arts. 3, 4, 6, 7 (as amended by S.I. 2021/938, art. 2); S.I. 2021/1243, art. 3 (with arts. 4-23) (as amended by S.I. 2021/1428, art. 2); S.I. 2021/1244, art. 3 (with arts. 4-21) (as amended by S.I. 2021/1428, art. 3); S.I. 2021/1245, arts. 3, 4 (with art. 1(4)); S.I. 2022/891, art. 3 (with arts. 4-25); S.I. 2022/892, arts. 2, 3 (with arts. 4-18); S.I. 2022/893, art. 4; S.I. 2022/894, art. 3; S.I. 2022/895, arts. 3, 4; S.I. 2022/896, art. 3 (with arts. 1(7), 4-22); S.I. 2022/897, art. 3 (with arts. 1(8), 4-21); S.I. 2022/898, arts. 2, 3
Words in Pt. 4 Ch. 1 title inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 9; S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505))
Pt. 4 Ch. 1 excluded (1.9.2014) by Children and Families Act 2014 (c. 6), ss. 81, 139(6); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505)
Introductory
311AF207Application of this Chapter: children in Wales
This Chapter applies only in relation to children in the area of a local authority in Wales.
312 Meaning of “special educational needs” and “special educational provision” etc.
1
A child F47in the area of a local authority in Wales has “special educational needs” for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.
2
Subject to F100subsections (3) and (3A) a child F198in the area of a local authority in Wales has a “learning difficulty” for the purposes of this Act if—
a
he has a significantly greater difficulty in learning than the majority of children of his age,
b
he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the F128local authority , or
3
A child is not to be taken as having a learning difficulty solely because the language (or form of the language) in which he is, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his home.
F1183A
Subsection (2) does not apply—
b
for the purposes of sections 18A and 562H (except for the purpose of F171a local authority in Wales determining, for the purposes of those sections, whether a child has special educational needs).
4
In this Act “special educational provision” means—
a
b
in relation to a child under that age, educational provision of any kind.
5
In this Part—
“child” includes any person who has not attained the age of 19 and is a registered pupil at a school;F4“maintained school” means any community, foundation or voluntary school or any community or foundation special school not established in a hospital.
312AF69Children subject to detention
1
No provision of, or made under, this Part applies in relation to a child who is subject to a detention order and detained in relevant youth accommodation.
2
The following provisions of this section apply where a child who has been subject to a detention order is released having, immediately before release, been detained in relevant youth accommodation.
3
Subject to subsection (6), a statement which was maintained for the child by a local authority under section 324 immediately before the beginning of the detention is, from the child's release, to be treated as being maintained by that authority under section 324.
4
In subsection (3) “the beginning of the detention” means—
a
the beginning of the period of detention in relevant youth accommodation, or
b
where that period is part of a continuous period, comprising periods of detention in relevant youth accommodation and in other accommodation, the beginning of that continuous period.
5
For the purposes of subsection (4), it is immaterial whether or not a period of detention is pursuant to a single order.
6
Where, on the child's release, a local authority (“the new authority”) other than the authority mentioned in subsection (3) (“the old authority”) becomes responsible for the child for the purposes of this Part—
a
the old authority must transfer the statement to the new authority, and
b
from the child's release, the statement is to be treated as being maintained by the new authority under section 324.
Code of Practice
313C21 Code of Practice.
1
C152
It shall be the duty of—
a
F195local authorities, and such governing bodies, exercising functions under this Part, and
b
any other person exercising any function for the purpose of the discharge by F195local authorities, and such governing bodies, of functions under this Part,
to have regard to the provisions of the code.
3
On any appeal under this Part to the Tribunal, the Tribunal shall have regard to any provision of the code which appears to the Tribunal to be relevant to any question arising on the appeal.
4
The F67Welsh Ministers shall publish the code as for the time being in force.
F1915
In this Part F79..., “the Tribunal”, in relation to an appeal, means F193the Special Educational Needs Tribunal for Wales.
F127a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F159b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
314C21 Making and approval of code.
1
2
F1533
If the Welsh Ministers determine to proceed with the draft (either in its original form or with such modifications as they think fit) they shall lay it before the National Assembly for Wales.
4
Special educational provision: general
315C21 Review of arrangements.
1
A F128local authority shall keep under review the arrangements made by them for special educational provision.
2
In doing so the authority shall, to the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with special educational needs, consult F6the governing bodies of community, foundation and voluntary and community and foundation special schools F119and maintained nursery schools
in their area..
C7F7316C21 Duty to educate children with special educational needs in mainstream schools
1
This section applies to a child with special educational needs who should be educated in a school.
C32
If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.
C33
If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with—
a
the wishes of his parent, or
b
the provision of efficient education for other children.
4
In this section and section 316A “mainstream school” means any school other than—
a
a special school, or
b
an independent school which is not—
i
a city technology college,
ii
a city college for the technology of the arts, or
iii
F41an Academy.
F8316AC24C21 Education otherwise than in mainstream schools
1
Section 316 does not prevent a child from being educated in—
a
an independent school which is not a mainstream school, or
b
a school approved under section 342,
if the cost is met otherwise than by a F128local authority.
C272
Section 316(2) does not require a child to be educated in a mainstream school during any period in which—
a
he is admitted to a special school for the purposes of an assessment under section 323 of his educational needs and his admission to that school is with the agreement of—
i
the F128local authority,
F58ii
the governing body of the school or, if the school is in England, its head teacher,
iii
his parent, and
iv
any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26;
b
he remains admitted to a special school, in prescribed circumstances, following an assessment under section 323 at that school;
C9c
he is admitted to a special school, following a change in his circumstances, with the agreement of—
i
the F128local authority,
F61ii
the governing body of the school or, if the school is in England, its head teacher,
iii
his parent;
d
he is admitted to a community or foundation special school which is established in a hospital.
3
Section 316 does not affect the operation of—
a
section 348, or
b
paragraph 3 of Schedule 27.
4
If a F128local authority decide—
a
to make a statement for a child under section 324, but
b
not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,
they shall, in making the statement, comply with section 316(3).
5
A F128local authority may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility.
6
An authority in relation to a particular mainstream school may rely on the exception in section 316(3)(b) only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility.
7
The exception in section 316(3)(b) does not permit a governing body to fail to comply with the duty imposed by section 324(5)(b).
8
An authority must have regard to guidance about section 316 and this section issued F116by the Welsh Ministers—
F103a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F92b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
That guidance shall, in particular, relate to steps which may, or may not, be regarded as reasonable for the purposes of subsections (5) and (6).
10
11
“Authority”—
I1C19317C21 Duties of governing body or F195local authority in relation to pupils with special educational needs.
C25C61
F136The governing body of a community, foundation or voluntary school or a maintained nursery school shall —
a
use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special
educational provision which his learning difficulty calls for is made,
b
secure that, where the responsible person has been informed by the F128local authority that a registered pupil has special educational needs, those needs are made
known to all who are likely to teach him, and
C26c
secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who have special educational needs.
C6F1582
In subsection (1)(b) “the responsible person” means the head teacher or the appropriate governor (that
is, the chairman of the governing body or, where the governing body have designated another governor for the purposes of this subsection, that other governor).
C63
To the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with special educational needs—
a
F189b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1653A
The governing body of a community, foundation or voluntary school or a maintained nursery school shall designate a member of the staff at the school (to be known as the “special educational needs co-ordinator”) as having responsibility for co-ordinating the provision for pupils with special educational needs.
3B
Regulations may—
a
require the governing bodies of schools falling within subsection (3A) to ensure that special educational needs co-ordinators have prescribed qualifications or prescribed experience (or both), and
b
confer on the governing bodies of those schools other functions relating to special educational needs co-ordinators.
C16C144
Where a child who has special educational needs is being educated in F11a community, foundation or voluntary school
or a maintained nursery school, those concerned with making special educational provision for the child shall secure, so far as is reasonably practicable and is compatible
with—
a
the child receiving the special educational provision which his learning difficulty calls for,
b
the provision of efficient education for the children with whom he will be educated, and
c
the efficient use of resources,
that the child engages in the activities of the school together with children who do not have special educational needs.
C11F1295
The governing body of a community, foundation or voluntary school, a maintained nursery school, or a community or foundation special school shall F59include special needs information in the report prepared under section 30(1) of the Education Act 2002 (governors' report).
F177a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F77b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
In subsection (5)
“special needs information” means—
a
such information as may be prescribed about the implementation of the governing body's policy for pupils with special educational needs, and
b
information as to—
i
the arrangements for the admission of disabled persons as pupils at the school,
ii
the steps taken to prevent disabled pupils from being treated less favourably than other pupils,
iii
the facilities provided to assist access to the school by disabled pupils, and
iv
the plan prepared by the governing body under F141paragraph 3 of Schedule 10 to the Equality Act 2010 (“the 2010 Act”).
6A
F211In subsection (6)(b) “disabled person” means a person who is a disabled person for the purposes of the 2010 Act; and section 89 (interpretation of Part 6) of, and paragraph 6 of Schedule 10 (supplementary provisions for Schedule 10) to, the 2010 Act apply for the purposes of subsection (6)(b) as they apply for the purposes of Part 6 of and Schedule 10 to that Act.
F12317AC21 Duty to inform parent where special educational provision made
C101
This section applies if—
a
a child for whom no statement is maintained under section 324 is a registered pupil at—
i
a community, foundation or voluntary school F137 or a maintained nursery school , or
ii
a pupil referral unit,
b
special educational provision is made for him at the school because it is considered that he has special educational needs, and
c
his parent has not previously been informed under this section of special educational provision made for him at the school.
2
If the school is a pupil referral unit, the F128local authority must secure that the head teacher informs the child’s parent that special educational provision is being made for him at the school because it is considered that he has special educational needs.
3
In any other case, the governing body must inform the child’s parent that special educational provision is being made for him there because it is considered that he has special educational needs.
318C21 Provision of goods and services in connection with special educational needs.
1
A F128local authority may, for the purpose only of assisting—
a
b
the governing bodies of F13community or foundation special schools
(in their or any other area) in the performance of the governing bodies’ duties,
supply goods or services to those bodies.
2
The terms on which goods or services are supplied by F195local authorities under F14this section to the governing
bodies of community, foundation or voluntary schools F169, maintained nursery schools or community or foundation special schools in any other area may, in such
circumstances as may be prescribed, include such terms as to payment as may be prescribed.
F683
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2023A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F423B
4
This section is without prejudice to the generality of any other power of F195local authorities to supply goods or services.
319C21 Special educational provision otherwise than in schools.
1
Where a F128local authority are satisfied that it would be inappropriate for—
a
the special educational provision which a learning difficulty of a child in their area calls for, or
b
any part of any such provision,
to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.
2
Before making an arrangement under this section, a F128local authority shall consult the child’s parent.
320C21 Provision outside England and Wales for certain children.
1
A F128local authority may make such arrangements as they think fit to enable a child for whom they maintain a statement under section 324 to attend an institution outside England and Wales which specialises in providing for children with special needs.
2
In subsection (1) “children with special needs” means children who have particular needs which would be special educational needs if those children were in England and Wales.
3
Where a F128local authority make arrangements under this section in respect of a child, those arrangements may in particular include contributing to or paying—
a
fees charged by the institution,
b
expenses reasonably incurred in maintaining him while he is at the institution or travelling to or from it,
c
his travelling expenses, and
d
expenses reasonably incurred by any person accompanying him while he is travelling or staying at the institution.
4
This section is without prejudice to any other powers of a F128local authority.
Identification and assessment of children with special educational needs
321C21 General duty of F128local authority towards children for whom they are responsible.
1
A F128local authority shall exercise their powers with a view to securing that, of the children for whom they are responsible, they identify those to whom subsection (2) below applies.
2
This subsection applies to a child if—
a
he has special educational needs, and
b
it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.
3
For the purposes of this Part a F128local authority are responsible for a child if he is in their area and—
F16b
education is provided for him at a school which is not a maintained school F117 or maintained nursery school but is so provided at the expense of the authority,
c
he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority’s attention as having (or probably having) special educational needs, or
d
he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.
322C21F51Duty of certain bodies to help local authority.
1
Where it appears to a F128local authority that F107another local authority, F152F190NHS England, F71an integrated care board or a Local Health Board F204... could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of F120that body , specifying the action in question.
2
F166A body whose help is so requested shall comply with the request unless—
a
they consider that the help requested is not necessary for the purpose of the exercise F208of those functions by the local authority that made the request , or
b
subsection (3) applies.
3
This subsection applies—
a
in F132a case where the request is made of F50F190NHS England, F168an integrated care board or a F199Local Health BoardF160..., if F210that body consider that, having regard to the resources available to them for the purpose of the exercise of their functions under the M1F91National Health Service Act 2006 or the National Health Service (Wales) Act 2006 , it is not reasonable for them to comply with the request, or
b
in F132a case where the request is made of a local authority, if that authority consider that the request is not compatible with their own statutory or other duties and obligations or unduly prejudices the discharge of any of their functions.
4
Regulations may provide that, where F206a local authority, F190NHS England, F63an integrated care board or a Local Health BoardF115... are under a duty by virtue of subsection (2) to comply with a request to help a F128local authority in the making of an assessment under section 323 or a statement under section 324 of this Act, they must, subject to prescribed exceptions, comply with the request within the prescribed period.
F935
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
323C21 Assessment of educational needs.
1
Where a F128local authority are of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2), they shall serve a notice on the child’s parent informing him—
a
that they F17are considering whether to make an assessment of the child’s educational needs,
b
of the procedure to be followed in making the assessment,
c
of the name of the officer of the authority from whom further information may be obtained, and
d
of the parent’s right to make representations, and submit written evidence, to the authority within such period (which must not be less than 29 days beginning with the date on which the notice is served) as may be specified in the notice.
2
A child falls within this subsection if—
a
he has special educational needs, and
b
it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.
3
Where—
a
a F128local authority have served a notice under subsection (1) and the period specified in the notice in accordance with subsection (1)(d) has expired, and
b
the authority remain of the opinion, after taking into account any representations made and any evidence submitted to them in response to the notice, that the child falls, or probably falls, within subsection (2),
they shall make an assessment of his educational needs.
4
Where a F128local authority decide to make an assessment under this section, they shall give notice in writing to the child’s parent of that decision and of their reasons for making it.
5
Schedule 26 has effect in relation to the making of assessments under this section.
6
Where, at any time after serving a notice under subsection (1), a F128local authority decide not to assess the educational needs of the child concerned they shall give notice in writing to the child’s parent of their decision.
324C21 Statement of special educational needs.
1
If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the F128local authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.
2
The statement shall be in such form and contain such information as may be prescribed.
3
In particular, the statement shall—
a
give details of the authority’s assessment of the child’s special educational needs, and
b
specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
4
The statement shall—
a
specify the type of school or other institution which the F128local authority consider would be appropriate for the child,
b
if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and
c
specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.
F184A
Subsection (4)(b) does not require the name of a school or institution to be specified if the child’s parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.
5
Where a F128local authority maintain a statement under this section, then—
a
unless the child’s parent has made suitable arrangements, the authority—
i
shall arrange that the special educational provision specified in the statement is made for the child, and
ii
may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and
C22C1C13F205A
Subsection (5)(b) has effect regardless of any duty imposed on the governing body of a school by section 1(6) of the School Standards and Framework Act 1998.
6
Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.
7
Schedule 27 has effect in relation to the making and maintenance of statements under this section.
325C21 Appeal against decision not to make statement.
1
2
In such a case, the child’s parent may appeal to the Tribunal against the decision.
F222A
A notice under subsection (1) must inform the parent of the right of appeal under subsection (2) and contain such other information as may be prescribed.
2B
Regulations may provide that where a F128local authority are under a duty under this section to serve any notice, the duty must be performed within the prescribed period.
3
On an appeal under this section, the Tribunal may—
a
dismiss the appeal,
b
order the F128local authority to make and maintain such a statement, or
c
remit the case to the authority for them to reconsider whether, having regard to any observations made by the Tribunal, it is necessary for the authority to determine the special educational provision which any learning difficulty the child may have calls for.
326C21 Appeal against contents of statement.
F231
The parent of a child for whom a F128local authority maintain a statement under section 324 may appeal to the Tribunal—
a
when the statement is first made,
b
if an amendment is made to the statement, or
c
if, after conducting an assessment under section 323, the F128local authority determine not to amend the statement.
1A
An appeal under this section may be against any of the following—
a
the description in the statement of the F128local authority’s assessment of the child’s special educational needs,
b
the special educational provision specified in the statement (including the name of a school so specified),
c
if no school is specified in the statement, that fact.
2
Subsection (1)(b) does not apply where the amendment is made in pursuance of—
a
paragraph 8 (change of named school) or 11(3)(b)
(amendment ordered by Tribunal) of Schedule 27, or
b
directions under section 442 (revocation of school attendance order);
C43
On an appeal under this section, the Tribunal may—
a
dismiss the appeal,
b
order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or
c
order the authority to cease to maintain the statement.
4
On an appeal under this section the Tribunal shall not order the F128local authority to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless—
a
the parent has expressed a preference for the school in pursuance of arrangements under paragraph 3 (choice of school) of Schedule 27, or
b
5
Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.
F25326AC21 Unopposed appeals
1
This section applies if—
F170a
the parent of a child, or a child, has appealed to the Tribunal under section 325, 328, 329 or 329A or paragraph 8(3) of Schedule 27 against a decision of a local authority, and
b
the authority notifies the Tribunal that they have determined that they will not, or will no longer, oppose the appeal.
2
The appeal is to be treated as having been determined in favour of the appellant.
3
If an appeal is treated as determined in favour of the appellant as a result of subsection (2), the Tribunal is not required to make any order.
4
Before the end of the prescribed period, the authority must—
a
in the case of an appeal under section 325, make a statement under section 324 of the child’s educational needs,
b
in the case of an appeal under section 328, 329 or 329A, make an assessment of the child’s educational needs,
c
in the case of an appeal under paragraph 8(3) of Schedule 27 against a determination of the authority not to comply with the parent’s request, comply with the request.
5
An authority required by subsection (4)(a) to make a statement under section 324 must maintain the statement under that section.
F1266
In this section, “prescribed” means prescribed by regulations made F157by the Welsh Ministers—
F197a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F44b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
327C21 Access for F128local authority to certain schools.
1
This section applies where—
a
a F128local authority maintain a statement for a child under section 324, and
2
Any person authorised by the F128local authority shall be entitled to have access at any reasonable time to the premises of any such school for the purpose of monitoring the special educational provision made in pursuance of the statement for the child at the school.
328C21 Reviews of educational needs.
1
Regulations may prescribe the frequency with which assessments under section 323 are to be repeated in respect of children for whom statements are maintained under section 324.
2
Where—
a
the parent of a child for whom a statement is maintained under section 324 asks the F128local authority to arrange for an assessment to be made in respect of the child under section 323,
b
no such assessment has been made within the period of six months ending with the date on which the request is made, and
c
it is necessary for the authority to make a further assessment under section 323,
the authority shall comply with the request.
3
If in any case where subsection (2)(a) and (b) applies the authority determine not to comply with the request—
a
they shall give F27notice in writing of that fact to the child’s parent, and
b
the parent may appeal to the Tribunal against the determination.
F283A
A notice under subsection (3)(a) must inform the parent of the right of appeal under subsection (3)(b) and contain such other information as may be prescribed.
3B
Regulations may provide that where a F128local authority are under a duty under this section to serve any notice, the duty must be performed within the prescribed period.
4
On an appeal under subsection (3) the Tribunal may—
a
dismiss the appeal, or
b
order the authority to arrange for an assessment to be made in respect of the child under section 323.
5
A statement under section 324 shall be reviewed by the F128local authority—
a
on the making of an assessment in respect of the child concerned under section 323, and
F81aa
where the child concerned—
i
has been subject to a detention order, and
ii
immediately before release was detained in relevant youth accommodation,
on the child's release from detention,
b
in any event, within the period of 12 months beginning with the making of the statement or, as the case may be, with the previous review.
6
Regulations may make provision—
a
as to the manner in which reviews of such statements are to be conducted,
b
as to the participation in such reviews of such persons as may be prescribed, and
c
in connection with such other matters relating to such reviews as the Secretary of State considers appropriate.
F212328AAppeal against determination of local authority in England not to amend statement following review
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
329C21 Assessment of educational needs at request of child’s parent.
1
Where—
a
the parent of a child for whom a F128local authority are responsible but for whom no statement is maintained under section 324 asks the authority to arrange for an assessment to be made in respect of the child under section 323,
b
no such assessment has been made within the period of six months ending with the date on which the request is made, and
c
it is necessary for the authority to make an assessment under that section,
the authority shall comply with the request.
2
If in any case where subsection (1)(a) and (b) applies the authority determine not to comply with the request—
a
they shall give F29notice in writing of that fact to the child’s parent, and
b
the parent may appeal to the Tribunal against the determination.
F302A
A notice under subsection (2)(a) must inform the parent of the right of appeal under subsection (2)(b) and contain such other information as may be prescribed.
3
On an appeal under subsection (2) the Tribunal may—
a
dismiss the appeal, or
b
order the authority to arrange for an assessment to be made in respect of the child under section 323.
C5C21C18F31329AC21 Review or assessment of educational needs at request of responsible body
1
This section applies if—
a
a child is a registered pupil at a relevant school (whether or not he is a child in respect of whom a statement is maintained under section 324),
b
the responsible body asks the F128local authority to arrange for an assessment to be made in respect of him under section 323, and
c
no such assessment has been made within the period of six months ending with the date on which the request is made.
2
If it is necessary for the authority to make an assessment or further assessment under section 323, they must comply with the request.
3
Before deciding whether to comply with the request, the authority must serve on the child’s parent a notice informing him—
a
that they are considering whether to make an assessment of the child’s educational needs,
b
of the procedure to be followed in making the assessment,
c
of the name of their officer from whom further information may be obtained, and
d
of the parent’s right to make representations, and submit written evidence, to them before the end of the period specified in the notice (“the specified period”).
4
The specified period must not be less than 29 days beginning with the date on which the notice is served.
5
The authority may not decide whether to comply with the request until the specified period has expired.
6
The authority must take into account any representations made, and any evidence submitted, to them in response to the notice.
7
If, as a result of this section, a F128local authority decide to make an assessment under section 323, they must give written notice to the child’s parent and to the responsible body which made the request, of the decision and of their reasons for making it.
8
If, after serving a notice under subsection (3), the authority decide not to assess the educational needs of the child—
a
they must give written notice of the decision and of their reasons for making it to his parent and to the responsible body which made the request, and
b
the parent may appeal to the Tribunal against the decision.
9
A notice given under subsection (8)(a) to the child’s parent must—
a
inform the parent of his right to appeal, and
b
contain such other information (if any) as may be prescribed.
10
On an appeal under subsection (8) the Tribunal may—
a
dismiss it, or
b
order the authority to arrange for an assessment to be made in respect of the child under section 323.
11
This section applies to a child for whom F162relevant early years education is provided as it applies to a child who is a registered pupil at a relevant school.
12
“Relevant school” means—
a
a maintained school,
b
a maintained nursery school,
c
a pupil referral unit,
d
an independent school,
F78da
an alternative provision Academy that is not an independent school,
e
a school approved under section 342.
13
“The responsible body” means—
b
in relation to any other relevant school, the proprietor or head teacher, and
F9614
“Relevant early years education” F114has the same meaning as it has (in relation to Wales) in section 123 of the School Standards and Framework Act 1998 except that it does not include early years education provided by a local authority at a maintained nursery school.
F110a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F167b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
330C21
F213. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
331C21 Assessment of educational needs of children under two.
1
Where a F128local authority are of the opinion that a child in their area who is under the age of two falls, or probably falls, within subsection (2)—
a
they may, with the consent of his parent, make an assessment of the child’s educational needs, and
b
they shall make such an assessment if requested to do so by his parent.
2
A child falls within this subsection if—
a
he has special educational needs, and
b
it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.
3
An assessment under this section shall be made in such manner as the authority consider appropriate.
4
After making an assessment under this section, the authority—
a
may make a statement of the child’s special educational needs, and
b
may maintain that statement,
in such manner as they consider appropriate.
332C21 Duty of F99Local Health Board or National Health Service trust to notify parent etc.
1
This section applies where F49an integrated care board, a F174Local Health BoardF88... F73, a National Health Service trust or an NHS foundation trust , in the course of exercising any of their functions in relation to a child who is under F32compulsory school age, form the opinion that he has (or probably has) special educational needs.
2
a
shall inform the child’s parent of their opinion and of their duty under paragraph (b), and
3
F164Appeals by children
S. 332ZA and cross-heading inserted (6.3.2012) by Education (Wales) Measure 2009 (nawm 5), ss. 1(2), 26(3) (as amended (5.5.2010) by S.I. 2010/1148, arts. 1, 5(2)); S.I. 2012/320, art. 3(a)
332ZARight of a child to appeal to the F180... Tribunal
1
This section applies to the rights of a parent of a child to appeal to the F173... Tribunal under any of the following provisions—
a
section 325(2) (appeal against decision not to make statement);
b
section 326(1) (appeal against contents of statement);
c
section 328(3)(b) (reviews of educational needs);
d
section 329(2)(b) (assessment of educational needs at request of child's parent);
e
section 329A(8)(b) (review of assessment of educational needs at request of responsible body);
f
paragraph 8(3)(b) of Schedule 27 (change of named school);
g
paragraph 11(2)(b) of Schedule 27 (ceasing to maintain a statement).
2
The child may exercise the rights conferred on the parent in respect of that child.
3
The child's rights are exercisable concurrently with the parent's rights.
4
The exercise of rights under this section is subject to provision made by regulations under sections 332ZC and 336(1).
332ZBF194Notice and service of documents on a child
1
This section applies if a local authority F125... is required to give notice to or serve a document on a parent of a child under any of the following provisions—
a
section 325 (appeal against decision not to make statement);
b
section 328 (reviews of educational needs);
c
section 329 (assessment of educational needs at request of child's parent);
d
section 329A(8) (review or assessment of educational needs at request of responsible body);
e
paragraph 3 of Schedule 26 (manner and timing of assessments);
f
paragraph 2A of Schedule 27 (amendments to a statement);
g
paragraph 2B(2) of Schedule 27 (provision of additional information);
h
paragraph 6 of Schedule 27 (service of statement);
i
paragraph 8 of Schedule 27 (change of named school);
j
paragraph 11 of Schedule 27 (ceasing to maintain a statement).
2
The local authority must give notice to, or serve the document on, the child as well as on the parent.
3
Any provision applicable to notices given to or documents served on a parent applies equally to notices given to or documents served on a child.
332ZCF131Case friends F48...
1
The Welsh Ministers may provide by regulations for a child to have a person (referred to in this Part as a “case friend”)—
a
to make representations on behalf of a child with a view to avoiding or resolving disagreements about the exercise by local education authorities F148... of functions under this Part, and
b
to exercise the rights of a child under section 332ZA on the child's behalf.
2
A child's case friend must—
a
make representations and exercise rights fairly and competently,
b
have no interest adverse to that of the child;
c
ensure that all steps and decisions taken by the case friend are for the benefit of the child and take account of the child's views.
3
Regulations made under this section may (among other things)—
a
confer functions on the F90... 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 child must have a case friend;
f
specify further requirements in respect of the conduct of case friends.
F33 General duties of F195local authorities
S. 332A and preceding cross-heading inserted (1.1.2002 (E.) and 1.4.2002 (W.)) by 2001 c. 10, s. 2 (with s. 43(13)); S.I. 2001/2217, art. 5, Sch. Pt. II (as amended by S.I. 2001/2614, art. 4); S.I. 2002/74, art. 5, Sch. Pt. II
F172332A Advice and information for parents — England
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
332AAF113Advice and information F56...
1
A local authority F187... must arrange for any child in their area with special educational needs, for a parent of any such child and for a case friend for any such child, to be provided with advice and information about matters relating to those needs.
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
children in their area,
b
parents of children in their area,
c
head teachers and proprietors of schools in their area, and
d
such other persons as they consider appropriate.
F98332B Resolution of disputes — England
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
332BAF112Resolution of disputes F86...
1
A local authority F57... must make arrangements with a view to avoiding or resolving disagreements between—
a
authorities and children in their area about the exercise by authorities of functions under this Part, and
b
authorities and parents of children in their area about the exercise by authorities of functions under this Part.
2
A local authority F75... must also make arrangements with a view to avoiding or resolving, in each relevant school, disagreements between—
a
a relevant child and the proprietor of the school about the special educational provision made for that child, and
b
the parents of a relevant child and the proprietor of the school about the special educational provision made for that child.
3
The arrangements must provide for the appointment of independent persons with the functions of facilitating the avoidance or resolution of such disagreements.
4
In making the arrangements, the authority must have regard to any guidance given by the Welsh Ministers.
5
The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.
6
The authority must take such steps as they consider appropriate for making the arrangements under subsections (1) and (2) known to—
a
children in their area,
b
parents of children in their area,
c
head teachers and proprietors of schools in their area, and
d
such other persons as they consider appropriate.
7
The arrangements cannot affect the entitlement of a child or a parent of a child to appeal to the Tribunal, and the authority must take such steps as they consider appropriate to make that fact known to children, to parents of children and to case friends for children in their area.
8
In this section—
“authorities” means the governing bodies of maintained schools and the local authority;“relevant child” means a child who has special educational needs and is a registered pupil at a relevant school.
9
For the purposes of this section a school is a relevant school in relation to a child if it is—
a
a maintained school or a maintained nursery school,
b
a pupil referral unit,
c
an independent school named in the statement maintained for the child under section 324, or
d
a school approved under section 342.
332BBF175Independent advocacy services F182...
1
Every local authority F87... must—
a
make arrangements for the provision of independent advocacy services in their area;
b
refer any child in their area who requests independent advocacy services to a service provider;
c
refer any person who is a case friend for a 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 child—
a
making, or intending to make an appeal to the Tribunal under section 332ZA, or
b
considering whether to appeal to the Tribunal under that section, or
c
taking part in or intending to take part in dispute resolution arrangements made under section 332BA.
3
In making arrangements under this section, every local 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 an appeal to the Tribunal, or
b
involved in investigating or adjudicating on such an appeal.
4
The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.
5
Every local authority F45... must take such steps as they consider appropriate for making the arrangements under this section known to—
a
children in their area,
b
parents of 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.
F64...
S. 332C cross-heading omitted (1.9.2014) by virtue of Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 29(1); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505)
F186332CProvision of information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F186332DPublication of information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F186332EInterpretation of sections 332C and 332D
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Special Educational Needs Tribunal F72for Wales
Words in s. 333 cross-heading inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 30; S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505)
C17333F101 Constitution of ... Tribunal.
F1611Z
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1011ZA
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1441ZB
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F341
The ... Tribunal shall exercise the jurisdiction conferred on it by this Part.
F1012
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1013
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1014
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1014A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1015
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1016
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F101334 The President and members of the panels.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F101335 Remuneration and expenses.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C2336 Tribunal procedure.
1
2
The regulations may, in particular, include provision—
a
as to the period within which, and the manner in which, appeals are to be instituted,
b
where the jurisdiction of the F145... Tribunal is being exercised by more than one tribunal—
i
for determining by which tribunal any appeal is to be heard, and
ii
for the transfer of proceedings from one tribunal to another,
c
for enabling any functions which relate to matters preliminary or incidental to an appeal to be performed by the President, or by the chairman,
F35d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
for hearings to be conducted in the absence of any member other than the chairman,
f
as to the persons who may appear on behalf of the parties,
g
h
requiring persons to attend to give evidence and produce documents,
i
for authorising the administration of oaths to witnesses,
j
for the determination of appeals without a hearing in F143circumstances prescribed in the regulations,
k
as to the withdrawal of appeals,
l
for the award of costs or expenses,
m
for taxing or otherwise settling any such costs or expenses (and, in particular, for enabling such costs to be taxed in the county court),
n
for the registration and proof of decisions and orders, F85and
o
for enabling the F80... Tribunal to review its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the regulations.
q
for adding and substituting parties.
F372A
F1233
The Welsh Ministers may pay such allowances for the purpose of or in connection with the attendance of persons at the F200... Tribunal as the Welsh Ministers may determine.
4
F394A
5
Any person who without reasonable excuse fails to comply with—
a
any requirement in respect of the discovery or inspection of documents imposed by the regulations by virtue of subsection (2)(g), or
b
any requirement imposed by the regulations by virtue of subsection (2)(h),
is guilty of an offence.
F1115A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
A person guilty of an offence under subsection (5) F192... is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
F122336ZAF43 Special Educational Needs Tribunal for Wales
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
336ZBF53Appeals from the F201... Tribunal to the Upper Tribunal
1
2
An appeal may be brought under subsection (1) only if, on an application made by the party concerned, the F185... 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 F94... Tribunal.
F40336A Compliance with orders
1
If the Tribunal makes an order, the F128local authority concerned must comply with the order before the end of the prescribed period beginning with the date on which it is made.
F2052
In subsection (1), “prescribed” means prescribed by regulations made F124by the Welsh Ministers with the agreement of the Secretary of State.
F65a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F106b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pt. 4 power to amend or repeal conferred (10.2.2012) by Education (Wales) Measure 2009 (nawm 5), ss. 18, 26(3); S.I. 2012/320, art. 2(g)