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Additional Learning Needs and Education Tribunal (Wales) Act 2018

Local authority reconsideration of governing body decisions and plans

73.The Act gives appeal rights to children, their parents and young persons in relation to particular matters provided for in Part 2 (see sections 70 and 72). Appeals can only be brought against local authorities and governing bodies of FEIs, but not against governing bodies of maintained schools. In order for children, their parents and young people to be able to challenge school governing body decisions and plans, sections 26, 27 and 32 provide mechanisms for their decisions and plans to be reconsidered by the local authority responsible for the pupil (i.e. the local authority in whose area the child or young person is) at local authority level. In turn, there are equivalent appeal rights in respect of those local authority actions (section 70). This avoids the schools having to manage Tribunal proceedings themselves and allows for disputes to be resolved at a more appropriate level. For pupils who are in the area of a local authority in England, sections 14, 26, 27, 29, 32, 68 and 69 apply with modification (see section 87) – essentially, the local authority that maintains the school is responsible for these reconsideration decisions, but cannot itself take over responsibility for maintaining an IDP.

Section 26 - Reconsideration by local authorities of decisions under section 11(1)

74.Section 26 enables a child or their parent, or the young person, to request that a local authority which is responsible for the child or young person reconsiders the decision of a maintained school governing body that one of its pupils has or does not have ALN. Where requested, the local authority must make its own decision on the issue; that decision will then replace the decision of the governing body, and the previous decision made by the governing body will cease to have effect. Before making a decision, the local authority must inform the governing body of the request and invite representations from the governing body. This section provides children and their parents, and young people, with an effective means of challenging the decision of the governing body of a maintained school in Wales, in the absence of a right of appeal to the Tribunal against these bodies. The local authority’s decision is then challengeable by way of an appeal to the Tribunal under section 70. Section 29 deals with the circumstances in which the duty in this section does not apply. See sections 84 and 85 in respect of a request by a child. See also paragraph 73 above for further information.

75.The decision made under this section is treated as one under section 13(1) (subsection (4)). This means that if the decision is that the pupil does not have ALN, the requirement to notify in section 13(3) applies and if the decision is that the pupil has ALN, the duty in section 14(2) about preparing and maintaining IDPs applies.

Section 27 - Reconsideration by local authorities of plans maintained under section 12

76.Section 27 enables a child, child’s parent or young person to ask a local authority (which is responsible for a child or young person) to reconsider an IDP maintained by the governing body of a maintained school with a view to revising it. Before deciding whether or not to revise the plan, the local authority must inform the governing body of the request and invite representations from the governing body.

77.Where the local authority decides that the IDP does not require revision it must notify the child and their parent, or the young person, of the decision and the reasons for that decision and give a copy of that notification to the governing body (subsections (4) and (5)). Where a local authority revises an IDP, the local authority must give a copy of the revised plan to the governing body (subsection (7)) and section 23(11) requires that a copy be given to the child, their parent, or young person. See sections 84 and 85 in respect of a request by a child and the requirements to notify, or give a copy of an IDP to, a child.

78.Where the local authority decides that the IDP requires revision, it may direct the governing body to maintain the revised IDP; alternatively, the local authority may take on responsibility for maintaining the IDP itself. The former may occur where the local authority considers that the content of the IDP is such that the governing body can reasonably be expected to deliver the ALP it contains; the latter where this would not be a reasonable expectation of the governing body.

79.The position regarding revisions applies equally to the case of a local authority revising a plan as a result of the Tribunal ordering it to do so.

80.This section provides children, their parents, and young people with an effective means of challenging the content of the IDP put in place for them by the governing body of a maintained school, in the absence of a right of appeal against these bodies (see section 70 which gives rights of appeal relating to local authority actions). See also paragraph 73 above for further information.

81.Section 29 deals with the circumstances in which the duty in this section does not apply.

Section 28 - Local authority duty to decide whether to take over governing body plans

82.Section 28 requires a local authority (which is responsible for a child or young person) to decide whether it should take over responsibility for maintaining an IDP in response to a request to do so. The request may be made by a governing body of a school or FEI – for example where the governing body no longer believes that maintaining the plan and delivering the ALP is within its capability – or by a child, a child’s parent or young person - for example where they do not believe the governing body has proven capable of delivering the ALP required by the child or young person. Where the local authority does decide to take over responsibility for the IDP, the IDP is treated as maintained by the authority under section 14. The decision of the local authority not to take over responsibility for an IDP is challengeable by appeal to the Tribunal under section 70.

83.Where the request is from a governing body, the local authority must notify the child, their parent, or the young person, and invite representations. Where the request is from a child, their parent or a young person, the local authority must inform the governing body and invite representations. The local authority must notify the governing body, and the child, their parent, or the young person, of the decision and the reasons for that decision. See sections 84 and 85, in respect of a request by a child, for the requirements to notify and inform a child.

84.Section 29 deals with the circumstances in which the duty in this section does not apply.

Section 29 - Circumstances in which the duties in sections 26(2), 27(2) and 28(3) do not apply

85.Section 29 sets out that where a local authority has previously made a decision under section 26(2), 27(2) or 28(3) in relation to a child or young person and it is satisfied that there has been no material change in the person’s needs or new information that would materially affect the decision, there is no duty to make a new decision under the respective section. In addition, no duty applies under these sections where a child becomes looked after.

86.For a child who has become looked after, the local authority looking after the child becomes responsible for maintaining the plan (section 35(9) and (10)) and has review functions (section 24) unless the child is in the area of a local authority in England ( see section 87).

87.See section 562 of the 1996 Act and section 44 for the effect on these duties where the child or young person has become subject to a detention order.

Section 30 - Registration or enrolment at more than one institution

88.Section 30 together with section 11(3)(d) ensures that where a child or young person attends a maintained school or FEI in Wales and another school or FEI (which need not necessarily be in Wales) and a local authority is responsible for the person, responsibility for determining if the person has ALN, and preparing and/or maintaining a plan for them lies with that local authority and the equivalent duties on the governing body of the school or FEI do not apply. The governing body must refer such matters to the local authority.

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Text created by the Welsh Government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes accompany all Acts of the National Assembly for Wales.

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