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Additional Learning Needs and Education Tribunal (Wales) Act 2018

Functions relating to securing additional learning provision
Section 47 - Duty to take all reasonable steps to secure additional learning provision

119.Section 47(1) and (2) requires that where a child or young person with ALN is a registered pupil at a maintained school or an enrolled student at an FEI, but has no IDP maintained for them, the relevant governing body must take all reasonable steps to secure the ALP called for by the person’s ALN. This is to ensure, for example, that such children and young people receive appropriate support whilst their needs are being determined or a plan is being prepared for them. The code must include guidance about situations where a plan is being prepared for the learner (subsection (3)). The duty on the governing bodies will also apply in respect of pupils or students resident in England who do not have an IDP (in which case, they may have an EHC plan, or there may have been a request to the England local authority for an EHC assessment - see section 12).

120.Section 47(4) and (5) require that when a local authority maintains an IDP for a child or young person attending a maintained school or FEI, the relevant governing body takes all reasonable steps to help the local authority secure the ALP set out in the IDP.

Section 48 - Duty to admit children to named maintained schools

121.Section 48 places a duty on governing bodies of maintained schools in Wales to admit children where that school is named for the purpose of admission by a local authority in an IDP. This is similar to the position under the 1996 Act in relation to the naming of a school in a statement of ALN. However, this section limits the circumstances in which schools may be named to those where the local authority is satisfied that the child’s interest requires the ALP to be made at that school, and it is appropriate for the child to be provided with education or training there. Before naming a school under this section, the local authority must consult the governing body of the school, and in the case of a maintained school where neither the local authority nor its governing body is the admissions authority for the school (as defined by section 88 of the School Standards and Framework Act 1998), the local authority for the area in which the school is located.

122.Where a maintained school is named under this section, the governing body must admit the child even if this would result in any limit on the size of an infant class being exceeded (see subsection (5)). The duty in this section to admit a child does not affect any power to exclude that child from the school (subsection (6)).

Section 49 - No power to charge for provision secured under this Part

123.Section 49 ensures that a child, parent (who is an individual rather than a local authority who looks after a child) or a young person does not have to pay for any provision that a governing body or local authority secures for that child or young person under the Act. The section amends the Social Services and Well-being (Wales) Act 2014 to ensure that a local authority’s functions under that Act related to recovering contributions from parents of looked after children towards the maintenance of the child, cannot be used for matters which the authority secures under the Act.

Section 50 - Welsh Ministers’ duties to secure post-16 education and training

124.The Act amends provisions of the 2000 Act dealing with post-16 learners who have ‘learning difficulties’. That Act places functions on the Welsh Ministers relating to: undertaking assessments for post-16 learners with learning difficulties (section 140); securing boarding accommodation for post-16 learners in specified circumstances (section 41); and more generally, securing facilities for post-16 education or training (sections 31, 32 and 34), but in doing so, the Welsh Ministers must have regard to the needs of persons with learning difficulties and to learning and skills assessments (section 41).

125.Section 50 amends the 2000 Act to remove functions related to securing boarding accommodation and undertaking assessments for post-16 learners with learning difficulties, as these matters are superseded by the ALN system provided for in Part 2, which includes duties to determine whether a young person has ALN, to prepare and maintain IDPs and to secure board and lodging for young persons in specified circumstances.

126.Section 50 also amends the 2000 Act so that the Welsh Ministers, when planning the provision of post-16 education or training, take into account the capacity of the further education workforce to deliver ALP in Welsh and the availability of facilities for assessing whether persons have ALN through the medium of Welsh. It also amends what remains of section 41 to reflect the terminology in this Act. Paragraph 8 of Schedule 1 makes further consequential changes to terminology in the 2000 Act.

Section 51 - Duty to favour education for children at mainstream maintained schools

127.Section 51 requires that where a child of compulsory school age with ALN should be educated in a school, the local authority must ensure that the child is educated in a mainstream maintained school, unless any of the circumstances set out in subsection (2) apply. These exceptions recognise that it might sometimes be appropriate to educate a child with ALN elsewhere. However, the exception regarding parental wishes does not require the local authority to secure the child’s education otherwise than in a mainstream maintained school (subsection (4)). Also, the requirement on the local authority in this subsection does not prevent a child from being educated at an approved non-maintained special school in England or an independent school, if it is not meeting the cost of that education (subsection (5)).

Section 52 - Children with additional learning needs in mainstream maintained schools

128.Section 52 requires that children with ALN educated in mainstream maintained schools take part in activities alongside their peers who do not have ALN, in so far as that is reasonably practicable and compatible with the matters listed in subsection (2). In particular, the matter in subsection (2)(a) (the child receiving the ALP called for by his or her ALN) is included because the nature of the child’s ALN or the ALP they require may be such that they should be, or even must be, educated separately from their peers for at least part of the time. For example, this might mean that a child needs to spend some of the school day allocated to classroom teaching time in a special unit attached to the school which is able to deliver specialist provision for the child’s needs, but at other times the child should be able to engage with the other pupils in school activities such as assemblies, breaks, sports days, trips and some classroom activities.

Section 53 - Additional learning provision otherwise than in schools

129.Section 53 allows a local authority to secure the ALP or any part of it identified in an IDP it maintains for a child to be made elsewhere when it is satisfied that it would be inappropriate for it to be made in a school. For example, certain forms of ALP may involve the use of specialist equipment which cannot be made available in a school setting.

Section 54 - Amendments to registration requirements for independent schools in Wales

130.Section 54 amends the Education Act 2002 so that the Welsh Ministers must publish a list of the schools included in the register of independent schools in Wales. Furthermore, when independent schools register with the Welsh Ministers, as a result of the amendment in subsection (3) to section 160 of the 2002 Act, they will be required by regulations, to specify the type(s) of ALP they make for pupils with ALN (if any). This information must also be specified in the published register.

Section 55 - Conditions applicable to securing additional learning provision at independent schools

131.Under section 55, a local authority may not place a child or young person at an independent school in Wales unless the school is on the register of independent schools in Wales and the local authority is satisfied that it can make the ALP described in the person’s IDP.

132.Similarly, a local authority is prohibited from placing children and young people at independent educational institutions in England (as defined in the Education and Skills Act 2008), unless the institution is included in the register of independent educational institutions in England and the local authority is satisfied that the institution can make the ALP described in the person’s IDP.

133.These provisions replace the approval and individual consent provisions in section 347 of the 1996 Act, which are removed by section 58.

Section 56 - List of independent special post-16 institutions

134.Section 56 requires the Welsh Ministers to establish and maintain a published list of independent special post-16 institutions (defined in subsection (6)) in Wales and England. Proprietors of such institutions (which are specially organised to provide education and training for persons over compulsory school age with ALN) may apply to the Welsh Ministers to be placed on the list. Local authorities may not exercise their functions under Part 2 to place children and young people at such institutions which are not on the list, unless an exemption set out in regulations applies (subsection (3)). The application requirements, and matters related to the list, including rights of appeal against decisions to refuse to list, or to remove, an institution, must be provided for by regulations made by the Welsh Ministers (subsection (5)).

Section 57 - Abolition of approval of non-maintained special schools in Wales

135.Section 57 amends the 1996 Act to remove the power of the Welsh Ministers to approve non-maintained special schools in Wales. New schools that are not maintained will have to register as independent schools under the Education Act 2002.

Section 58 - Abolition of approval of independent schools in Wales

136.Section 58 repeals section 347 of the 1996 Act (approval of independent schools as suitable for admission of children with statements of ALN). Sections 54 and 55 provide for matters related to registration requirements for independent schools and conditions for a local authority securing education for a child or young person with ALN at an independent school.

Section 59 - Additional learning provision outside England and Wales

137.Section 59 allows a local authority to arrange for a child or young person with ALN to attend an institution outside England and Wales, where that institution is organised to make the ALP described in their IDP.

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