xmlns:atom="http://www.w3.org/2005/Atom" xmlns:atom="http://www.w3.org/2005/Atom"

E+W+S+N.I.

Children and Families Act 2014

2014 CHAPTER 6

An Act to make provision about children, families, and people with special educational needs or disabilities; to make provision about the right to request flexible working; and for connected purposes.

[13th March 2014]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

PART 1 E+WAdoption and contact

AdoptionE+W

1Contact between prescribed persons and adopted person's relativesE+W

(1)In section 98 of the Adoption and Children Act 2002 (pre-commencement adoptions: information), after subsection (1) insert—

(1A)Regulations under section 9 may make provision for the purpose of facilitating contact between persons with a prescribed relationship to a person adopted before the appointed day and that person's relatives.

(2)In each of subsections (2) and (3) of that section, for “that purpose” substitute “ a purpose within subsection (1) or (1A) ”.

(3)In subsection (7) of that section, after the definition of “appointed day” insert—

prescribed” means prescribed by regulations under section 9;.

Annotations:

Commencement Information

I1S. 1 in force at 25.7.2014 for E. by S.I. 2014/889, art. 6(a)

I2S. 1 in force at 19.10.2015 for W. by S.I. 2015/1808, art. 2

2Placement of looked after children with prospective adoptersE+W

(1)Section 22C of the Children Act 1989 is amended as follows.

(2)In subsection (7), after “subject to” insert “ subsection (9B) and ”.

(3)After subsection (9) insert—

(9A)Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and—

(a)are considering adoption for C, or

(b)are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.

(9B)Where this subsection applies—

(a)subsections (7) to (9) do not apply to the local authority,

(b)the local authority must consider placing C with an individual within subsection (6)(a), and

(c)where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.

(9C)Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.

Annotations:

Commencement Information

I3S. 2 in force at 25.7.2014 by S.I. 2014/889, art. 6(b)

3Repeal of requirement to give due consideration to ethnicity: EnglandE+W

(1)Section 1 of the Adoption and Children Act 2002 (considerations applying when making decisions about the adoption of a child) is amended as follows.

(2)In subsection (5) (due consideration to be given to religious persuasion, racial origin and cultural and linguistic background), for “In placing the child for adoption, the adoption agency” substitute “ In placing a child for adoption, an adoption agency in Wales ”.

(3)In consequence of the amendment made by subsection (2)—

(a)in subsection (1), for “This section applies” substitute “ Subsections (2) to (4) apply ”;

(b)in subsection (6), for “The court or adoption agency” substitute “ In coming to a decision relating to the adoption of a child, a court or adoption agency ”;

(c)after subsection (8) insert—

(9)In this section “adoption agency in Wales” means an adoption agency that is—

(a)a local authority in Wales, or

(b)a registered adoption society whose principal office is in Wales.

Annotations:

Commencement Information

I4S. 3 in force at 25.7.2014 by S.I. 2014/889, art. 6(b)

4Recruitment, assessment and approval of prospective adoptersE+W

(1)In Chapter 2 of Part 1 of the Adoption and Children Act 2002 (the Adoption Service) after section 3 insert—

3ARecruitment, assessment and approval of prospective adopters

(1)The Secretary of State may give directions requiring one or more named local authorities in England, or one or more descriptions of local authority in England, to make arrangements for all or any of their functions within subsection (3) to be carried out on their behalf by one or more other adoption agencies.

(2)The Secretary of State may by order require all local authorities in England to make arrangements for all or any of their functions within subsection (3) to be carried out on their behalf by one or more other adoption agencies.

(3)The functions are their functions in relation to—

(a)the recruitment of persons as prospective adopters;

(b)the assessment of prospective adopters' suitability to adopt a child;

(c)the approval of prospective adopters as suitable to adopt a child.

(2)In section 140(3) of that Act (statutory instruments containing subordinate legislation that are subject to the affirmative procedure), before paragraph (a) insert—

(za)under section 3A(2),.

(3)The Secretary of State may not make an order under subsection (2) of section 3A of the Adoption and Children Act 2002 (as inserted by subsection (1)) before 1 March 2015.

Annotations:

Commencement Information

I5S. 4 in force at 13.5.2014 by S.I. 2014/889, art. 5(a)

Prospective

5Adoption support services: personal budgetsE+W

In Chapter 2 of Part 1 of the Adoption and Children Act 2002 (the Adoption Service) after section 4 insert—

4AAdoption support services: personal budgets

(1)This section applies where—

(a)after carrying out an assessment under section 4, a local authority in England decide to provide any adoption support services to a person (“the recipient”), and

(b)the recipient is an adopted person or the parent of an adopted person.

(2)The local authority must prepare a personal budget for the recipient if asked to do so by the recipient or (in prescribed circumstances) a person of a prescribed description.

(3)The authority prepare a “personal budget” for the recipient if they identify an amount as available to secure the adoption support services that they have decided to provide, with a view to the recipient being involved in securing those services.

(4)Regulations may make provision about personal budgets, in particular—

(a)about requests for personal budgets;

(b)about the amount of a personal budget;

(c)about the sources of the funds making up a personal budget;

(d)for payments (“direct payments”) representing all or part of a personal budget to be made to the recipient, or (in prescribed circumstances) a person of a prescribed description, in order to secure any adoption support services to which the budget relates;

(e)about the description of adoption support services to which personal budgets and direct payments may (and may not) relate;

(f)for a personal budget or direct payment to cover the agreed cost of the adoption support services to which the budget or payment relates;

(g)about when, how, to whom and on what conditions direct payments may (and may not) be made;

(h)about when direct payments may be required to be repaid and the recovery of unpaid sums;

(i)about conditions with which a person or body making direct payments must comply before, after or at the time of making a direct payment;

(j)about arrangements for providing information, advice or support in connection with personal budgets and direct payments.

(5)If the regulations include provision authorising direct payments, they must—

(a)require the consent of the recipient, or (in prescribed circumstances) a person of a prescribed description, to be obtained before direct payments are made;

(b)require the authority to stop making direct payments where the required consent is withdrawn.

(6)Any adoption support services secured by means of direct payments made by a local authority are to be treated as adoption support services provided by the authority for all purposes, subject to any prescribed conditions or exceptions.

(7)On the occasion of the first exercise of the power to make regulations under this section—

(a)the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and

(b)accordingly section 140(2) does not apply to the instrument.

(8)In this section “prescribed” means prescribed by regulations.

6Adoption support services: duty to provide informationE+W

In Chapter 2 of Part 1 of the Adoption and Children Act 2002 (the Adoption Service) after section 4A (as inserted by section 5) insert—

4BAdoption support services: duty to provide information

(1)Except in circumstances prescribed by regulations, a local authority in England must provide the information specified in subsection (2) to—

(a)any person who has contacted the authority to request information about adopting a child,

(b)any person who has informed the authority that he or she wishes to adopt a child,

(c)any person within the authority's area who the authority are aware is a parent of an adopted child, and

(d)any person within the authority's area who is a parent of an adopted child and has contacted the authority to request any of the information specified in subsection (2).

(2)The information is—

(a)information about the adoption support services available to people in the authority's area;

(b)information about the right to request an assessment under section 4 (assessments etc for adoption support services), and the authority's duties under that section and regulations made under it;

(c)information about the authority's duties under section 4A (adoption support services: personal budgets) and regulations made under it;

(d)any other information prescribed by regulations.

Annotations:

Commencement Information

I6S. 6 in force at 25.7.2014 by S.I. 2014/889, art. 6(c)

7The Adoption and Children Act RegisterE+W

(1)The Adoption and Children Act 2002 is amended as follows.

(2)In section 125 (Adoption and Children Act Register)—

(a)in subsection (1)(a), after “children who are suitable for adoption” insert “ , children for whom a local authority in England are considering adoption ”;

(b)in subsection (3), after “search” insert “ (subject to regulations under section 128A) ”.

(3)In section 128 (supply of information for the register), in subsection (4)(b), after “children suitable for adoption” insert “ or for whom a local authority in England are considering adoption ”.

(4)After section 128 insert—

128ASearch and inspection of the register by prospective adopters

(1)Regulations may make provision enabling prospective adopters who are suitable to adopt a child to search and inspect the register, for the purposes of assisting them to find a child for whom they would be appropriate adopters.

(2)Regulations under subsection (1) may make provision enabling prospective adopters to search and inspect only prescribed parts of the register, or prescribed content on the register.

(3)Access to the register for the purpose of searching and inspecting it may be granted on any prescribed terms and conditions.

(4)Regulations may prescribe the steps to be taken by prospective adopters in respect of information received by them as a result of searching or inspecting the register.

(5)Regulations may make provision requiring prospective adopters, in prescribed circumstances, to pay a prescribed fee to the Secretary of State or the registration organisation in respect of searching or inspecting the register.

(6)On the occasion of the first exercise of the power to make regulations under this section—

(a)the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and

(b)accordingly section 140(2) does not apply to the instrument.

(5)In section 129 (disclosure of information), in subsection (2)(a) after “suitable for adoption” insert “ or for whom a local authority in England is considering adoption ”.

(6)In section 140(7) (power for subordinate legislation to make different provision for different purposes) after “purposes” insert “ or areas ”.

(7)In section 97 of the Children Act 1989 (privacy for children involved in certain proceedings), after subsection (6) insert—

(6A)It is not a contravention of this section to—

(a)enter material in the Adoption and Children Act Register (established under section 125 of the Adoption and Children Act 2002), or

(b)permit persons to search and inspect that register pursuant to regulations made under section 128A of that Act.

(8)Schedule 1 (amendments to the Adoption and Children Act 2002 to provide for the Adoption and Children Act Register not to apply to Wales and Scotland and to remove the requirement to make provision for that register by Order in Council, and other related amendments) has effect.

Annotations:

Commencement Information

I7S. 7 in force at 13.5.2014 by S.I. 2014/889, art. 5(b)

ContactE+W

8Contact: children in care of local authoritiesE+W

(1)Section 34 of the Children Act 1989 (parental contact etc with children in care) is amended as follows.

(2)In subsection (1), after “subject to the provisions of this section” insert “ and their duty under section 22(3)(a) ”.

(3)After subsection (6) insert—

(6A)Where (by virtue of an order under this section, or because subsection (6) applies) a local authority in England are authorised to refuse to allow contact between the child and a person mentioned in any of paragraphs (a) to (c) of paragraph 15(1) of Schedule 2, paragraph 15(1) of that Schedule does not require the authority to endeavour to promote contact between the child and that person.

(4)In subsection (8), before paragraph (a) insert—

(za)what a local authority in England must have regard to in considering whether contact between a child and a person mentioned in any of paragraphs (a) to (d) of subsection (1) is consistent with safeguarding and promoting the child's welfare;.

(5)In subsection (11) after “Before” insert “ making, varying or discharging an order under this section or ”.

Annotations:

Commencement Information

I8S. 8 in force at 25.7.2014 by S.I. 2014/889, art. 6(d)

9Contact: post-adoptionE+W

(1)After section 51 of the Adoption and Children Act 2002 insert—

Post-adoption contactE+W
51APost-adoption contact

(1)This section applies where—

(a)an adoption agency has placed or was authorised to place a child for adoption, and

(b)the court is making or has made an adoption order in respect of the child.

(2)When making the adoption order or at any time afterwards, the court may make an order under this section—

(a)requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or

(b)prohibiting the person named in the order under this section from having contact with the child.

(3)The following people may be named in an order under this section—

(a)any person who (but for the child's adoption) would be related to the child by blood (including half-blood), marriage or civil partnership;

(b)any former guardian of the child;

(c)any person who had parental responsibility for the child immediately before the making of the adoption order;

(d)any person who was entitled to make an application for an order under section 26 in respect of the child (contact with children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;

(e)any person with whom the child has lived for a period of at least one year.

(4)An application for an order under this section may be made by—

(a)a person who has applied for the adoption order or in whose favour the adoption order is or has been made,

(b)the child, or

(c)any person who has obtained the court's leave to make the application.

(5)In deciding whether to grant leave under subsection (4)(c), the court must consider—

(a)any risk there might be of the proposed application disrupting the child's life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act),

(b)the applicant's connection with the child, and

(c)any representations made to the court by—

(i)the child, or

(ii)a person who has applied for the adoption order or in whose favour the adoption order is or has been made.

(6)When making an adoption order, the court may on its own initiative make an order of the type mentioned in subsection (2)(b).

(7)The period of one year mentioned in subsection (3)(e) need not be continuous but must not have begun more than five years before the making of the application.

(8)Where this section applies, an order under section 8 of the 1989 Act may not make provision about contact between the child and any person who may be named in an order under this section.

51BOrders under section 51A: supplementary

(1)An order under section 51A—

(a)may contain directions about how it is to be carried into effect,

(b)may be made subject to any conditions the court thinks appropriate,

(c)may be varied or revoked by the court on an application by the child, a person in whose favour the adoption order was made or a person named in the order, and

(d)has effect until the child's 18th birthday, unless revoked.

(2)Subsection (3) applies to proceedings—

(a)on an application for an adoption order in which—

(i)an application is made for an order under section 51A, or

(ii)the court indicates that it is considering making such an order on its own initiative;

(b)on an application for an order under section 51A;

(c)on an application for such an order to be varied or revoked.

(3)The court must (in the light of any rules made by virtue of subsection (4))—

(a)draw up a timetable with a view to determining without delay whether to make, (or as the case may be) vary or revoke an order under section 51A, and

(b)give directions for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

(4)Rules of court may—

(a)specify periods within which specified steps must be taken in relation to proceedings to which subsection (3) applies, and

(b)make other provision with respect to such proceedings for the purpose of ensuring, so far as is reasonably practicable, that the court makes determinations about orders under section 51A without delay.

(2)In section 1 of the Adoption and Children Act 2002 (considerations applying to the exercise of powers relating to the adoption of a child), in subsection (7)(a) after “section 26” insert “ or 51A ”.

(3)In section 26 of that Act (children placed, or authorised to be placed, for adoption: contact), omit subsection (5).

(4)In section 96(3) of that Act (section 95 does not prohibit payment of legal or medical expenses in connection with applications under section 26 etc) after “26” insert “ , 51A ”.

(5)In section 1(1) of the Family Law Act 1986 (orders which are Part 1 orders) after paragraph (ab) insert—

(ac)an order made under section 51A of the Adoption and Children Act 2002 (post-adoption contact), other than an order varying or revoking such an order;.

(6)In section 2 of that Act (jurisdiction of courts in England and Wales to make Part 1 orders: pre-conditions) after subsection (2B) insert—

(2C)A court in England and Wales shall not have jurisdiction to make an order under section 51A of the Adoption and Children Act 2002 unless—

(a)it has jurisdiction under the Council Regulation or the Hague Convention, or

(b)neither the Council Regulation nor the Hague Convention applies but the condition in section 3 of this Act is satisfied.

(7)In section 9 of the Children Act 1989, in subsection (5)(a) (restrictions on making certain orders with respect to children) after “order” insert “ or an order under section 51A of the Adoption and Children Act 2002 (post-adoption contact) ”.

(8)In section 17(4) of the Armed Forces Act 1991 (persons to be given notice of application for service family child assessment order) before paragraph (e) insert—

(db)any person in whose favour an order under section 51A of the Adoption and Children Act 2002 (post-adoption contact) is in force with respect to the child;.

(9)In section 18(7) of that Act (persons who may apply to vary or discharge a service family child assessment order) before paragraph (e) insert—

(db)any person in whose favour an order under section 51A of the Adoption and Children Act 2002 (post-adoption contact) is in force with respect to the child;.

(10)In section 20(8) of that Act (persons who are to be allowed reasonable contact with a child subject to a protection order) before paragraph (d) insert—

(cb)any person in whose favour an order under section 51A of the Adoption and Children Act 2002 (post-adoption contact) is in force with respect to the child;.

(11)In section 22A(7) of that Act (persons who are to be allowed reasonable contact with a child in service police protection) before paragraph (d) insert—

(cb)any person in whose favour an order under section 51A of the Adoption and Children Act 2002 (post-adoption contact) is in force with respect to the child,.

(12)In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services)—

(a)in paragraph 12(9) (victims of domestic violence and family matters), in the definition of “family enactment” after paragraph (o) insert—

(xvi)section 51A of the Adoption and Children Act 2002 (post-adoption contact orders)., and

(b)in paragraph 13(1) (protection of children and family matters) after paragraph (f) insert—

(g)orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).

Annotations:

Commencement Information

I9S. 9 in force at 22.4.2014 by S.I. 2014/889, art. 4(a) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

PART 2 E+WFamily justice

10Family mediation information and assessment meetingsE+W

(1)Before making a relevant family application, a person must attend a family mediation information and assessment meeting.

(2)Family Procedure Rules—

(a)may provide for subsection (1) not to apply in circumstances specified in the Rules,

(b)may make provision about convening a family mediation information and assessment meeting, or about the conduct of such a meeting,

(c)may make provision for the court not to issue, or otherwise deal with, an application if, in contravention of subsection (1), the applicant has not attended a family mediation information and assessment meeting, and

(d)may provide for a determination as to whether an applicant has contravened subsection (1) to be made after considering only evidence of a description specified in the Rules.

(3)In this section—

(4)This section is without prejudice to sections 75 and 76 of the Courts Act 2003 (power to make Family Procedure Rules).

Annotations:

Commencement Information

I10S. 10 in force at 22.4.2014 by S.I. 2014/793, art. 2 (with transitional provisions in S.I. 2014/1042, arts. 5, 11)

11Welfare of the child: parental involvementE+W

(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2)After subsection (2) insert—

(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child's time.

(3)After subsection (5) insert—

(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.

(7)The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).

Annotations:

Modifications etc. (not altering text)

Commencement Information

I11S. 11 in force at 22.10.2014 by S.I. 2014/2749, art. 3 (with art. 4)

12Child arrangements ordersE+W

(1)Section 8(1) of the Children Act 1989 is amended as follows.

(2)Omit the definitions of “contact order” and “residence order”.

(3)After “In this Act—” insert—

child arrangements order” means an order regulating arrangements relating to any of the following—

(a)with whom a child is to live, spend time or otherwise have contact, and

(b)when a child is to live, spend time or otherwise have contact with any person;.

(4)Schedule 2 (amendments relating to child arrangements orders) has effect.

Annotations:

Commencement Information

I12S. 12 in force at 22.4.2014 by S.I. 2014/889, art. 4(b) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

13Control of expert evidence, and of assessments, in children proceedingsE+W

(1)A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.

(2)Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.

(3)A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings.

(4)Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible.

(5)In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.

(6)The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

(7)When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to—

(a)any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,

(b)the issues to which the expert evidence would relate,

(c)the questions which the court would require the expert to answer,

(d)what other expert evidence is available (whether obtained before or after the start of proceedings),

(e)whether evidence could be given by another person on the matters on which the expert would give evidence,

(f)the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,

(g)the cost of the expert evidence, and

(h)any matters prescribed by Family Procedure Rules.

(8)References in this section to providing expert evidence, or to putting expert evidence before a court, do not include references to—

(a)the provision or giving of evidence—

(i)by a person who is a member of the staff of a local authority or of an authorised applicant,

(ii)in proceedings to which the authority or authorised applicant is a party, and

(iii)in the course of the person's work for the authority or authorised applicant,

(b)the provision or giving of evidence—

(i)by a person within a description prescribed for the purposes of subsection (1) of section 94 of the Adoption and Children Act 2002 (suitability for adoption etc.), and

(ii)about the matters mentioned in that subsection,

(c)the provision or giving of evidence by an officer of the Children and Family Court Advisory and Support Service when acting in that capacity, or

(d)the provision or giving of evidence by a Welsh family proceedings officer (as defined by section 35(4) of the Children Act 2004) when acting in that capacity.

(9)In this section—

(10)The preceding provisions of this section are without prejudice to sections 75 and 76 of the Courts Act 2003 (power to make Family Procedure Rules).

(11)In section 38 of the Children Act 1989 (court's power to make interim care and supervision orders, and to give directions as to medical examination etc. of children) after subsection (7) insert—

(7A)A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B)When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to—

(a)any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b)the issues with which the examination or other assessment would assist the court,

(c)the questions which the examination or other assessment would enable the court to answer,

(d)the evidence otherwise available,

(e)the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f)the cost of the examination or other assessment, and

(g)any matters prescribed by Family Procedure Rules.

Annotations:

Commencement Information

I13S. 13 in force at 22.4.2014 by S.I. 2014/793, art. 2 (with transitional provisions in S.I. 2014/1042, arts. 5, 11)

14Care, supervision and other family proceedings: time limits and timetablesE+W

(1)The Children Act 1989 is amended as follows.

(2)In section 32(1)(a) (timetable for dealing with application for care or supervision order) for “disposing of the application without delay; and” substitute disposing of the application—

(i)without delay, and

(ii)in any event within twenty-six weeks beginning with the day on which the application was issued; and.

(3)In section 32 (care and supervision orders) after subsection (2) insert—

(3)A court, when drawing up a timetable under subsection (1)(a), must in particular have regard to—

(a)the impact which the timetable would have on the welfare of the child to whom the application relates; and

(b)the impact which the timetable would have on the conduct of the proceedings.

(4)A court, when revising a timetable drawn up under subsection (1)(a) or when making any decision which may give rise to a need to revise such a timetable (which does not include a decision under subsection (5)), must in particular have regard to—

(a)the impact which any revision would have on the welfare of the child to whom the application relates; and

(b)the impact which any revision would have on the duration and conduct of the proceedings.

(5)A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6)When deciding whether to grant an extension under subsection (5), a court must in particular have regard to—

(a)the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b)the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7)When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

(8)Each separate extension under subsection (5) is to end no more than eight weeks after the later of—

(a)the end of the period being extended; and

(b)the end of the day on which the extension is granted.

(9)The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or the opening words of subsection (8), for the purpose of varying the period for the time being specified in that provision.

(10)Rules of court may provide that a court—

(a)when deciding whether to exercise the power under subsection (5), or

(b)when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules.

(4)In section 38 (interim care and supervision orders)—

(a)in subsection (4) (duration of interim order) omit—

(i)paragraph (a) (order may not last longer than 8 weeks), and

(ii)paragraph (b) (subsequent order generally may not last longer than 4 weeks),

(b)in that subsection after paragraph (d) insert—

(da)in a case which falls within subsection (1)(b) and in which—

(i)no direction has been given under section 37(4), and

(ii)no application for a care order or supervision order has been made with respect to the child,

the expiry of the period of eight weeks beginning with the date on which the order is made;, and

(c)omit subsection (5) (interpretation of subsection (4)(b)).

(5)In section 11(1) (section 8 orders: court's duty, in the light of rules made by virtue of section 11(2), to draw up timetable and give directions to implement it) for “rules made by virtue of subsection (2))” substitute “ provision in rules of court that is of the kind mentioned in subsection (2)(a) or (b)) ”.

(6)In section 14E(1) (special guardianship orders: court's duty, in the light of rules made by virtue of subsection (3), to draw up timetable and give directions to implement it) for “rules made by virtue of subsection (3))” substitute “ provision in rules of court that is of the kind mentioned in section 11(2)(a) or (b)) ”.

(7)In section 32(1) (care and supervision orders: court's duty, in the light of rules made by virtue of section 32(2), to draw up timetable and give directions to implement it)—

(a)for “hearing an application for an order under this Part” substitute “ in which an application for an order under this Part is proceeding ”, and

(b)for “rules made by virtue of subsection (2))” substitute “ provision in rules of court that is of the kind mentioned in subsection (2)(a) or (b)) ”.

(8)In section 109(1) of the Adoption and Children Act 2002 (adoption and placement orders: court's duty, in the light of rules made by virtue of section 109(2), to draw up timetable and give directions to implement it) for “rules made by virtue of subsection (2))” substitute “ provision in rules of court that is of the kind mentioned in subsection (2)(a) or (b)) ”.

Annotations:

Commencement Information

I14S. 14 in force at 22.4.2014 by S.I. 2014/889, art. 4(c) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

15Care plansE+W

(1)For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

(3A)A court deciding whether to make a care order—

(a)is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b)is not required to consider the remainder of the section 31A plan, subject to section 34(11).

(3B)For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following—

(a)the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;

(b)adoption;

(c)long-term care not within paragraph (a) or (b).

(3C)The Secretary of State may by regulations amend this section for the purpose of altering what for the purposes of subsection (3A) are the permanence provisions of a section 31A plan.

(2)In section 31A of the Children Act 1989 (care plans)—

(a)in subsection (1) (where application made for care order, care plan to be prepared within such time as the court may direct) for “the court may direct” substitute “ may be prescribed ”, and

(b)after subsection (4) insert—

(4A)In this section “prescribed”—

(a)in relation to a care plan whose preparation is the responsibility of a local authority for an area in England, means prescribed by the Secretary of State; and

(b)in relation to a care plan whose preparation is the responsibility of a local authority in Wales, means prescribed by the Welsh Ministers.

(3)In consequence of subsection (1), section 121(1) of the Adoption and Children Act 2002 is repealed.

Annotations:

Commencement Information

I15S. 15(1)(3) in force at 22.4.2014 by S.I. 2014/889, art. 4(d) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

16Care proceedings and care plans: regulations: procedural requirementsE+W

(1)In section 104 of the Children Act 1989 (regulations and orders)—

(a)in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) after “(3B)” insert “ , (3BA) ”, and

(b)after subsection (3B) insert—

(3BA)Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 31(3C) or 32(9).

F1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

Commencement Information

I16S. 16 in force at 22.4.2014 by S.I. 2014/889, art. 4(e) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

17Repeal of restrictions on divorce and dissolution etc where there are childrenE+W

(1)The following are repealed—

(a)section 41 of the Matrimonial Causes Act 1973 (in proceedings for divorce etc. court is to consider whether to exercise powers under Children Act 1989);

(b)section 63 of the Civil Partnership Act 2004 (in proceedings for dissolution etc. court is to consider whether to exercise powers under Children Act 1989).

(2)The following amendments and repeals are in consequence of the repeals made by subsection (1).

(3)In section 9(1)(a) of the Matrimonial Causes Act 1973 (proceedings after decree of divorce: power to make decree absolute is subject to section 41)—

(a)for “sections” substitute “ section ”, and

(b)omit “and 41”.

(4)In section 17(2) of that Act (grant of decree of judicial separation is subject to section 41) omit “, subject to section 41 below,”.

(5)Omit paragraph 31 of Schedule 12 to the Children Act 1989 (which substitutes section 41 of the Matrimonial Causes Act 1973).

(6)In section 40(4)(b) of the Civil Partnership Act 2004 (proceedings after conditional order: power to make order final is subject to section 63) omit the words from “and section 63” to the end.

(7)In section 56(3) of that Act (making of separation order is subject to section 63) omit “, subject to section 63,”.

Annotations:

Commencement Information

I17S. 17 in force at 22.4.2014 by S.I. 2014/793, art. 2 (with transitional provisions in S.I. 2014/1042, arts. 5, 11)

18Repeal of uncommenced provisions of Part 2 of the Family Law Act 1996E+W

(1)Part 2 of the Family Law Act 1996 (divorce and separation), except section 22 (the only provision of Part 2 which is in force), is repealed.

(2)In consequence of subsection (1), the following provisions of the Family Law Act 1996 (which relate to provisions of Part 2) are repealed—

(a)section 1(c) and (d),

(b)section 63(2)(a),

(c)section 64(1)(a),

(d)in section 65(5) the words “to rules made under section 12 or”,

(e)Part 1 of Schedule 8, except—

(i)paragraph 16(5)(a), (6)(b) and (7) (which have been brought into force), and

(ii)paragraphs 4 and 16(1) (which relate to those provisions),

(f)in Schedule 9, paragraphs 1 and 2 and, in paragraph 4, the definitions of “decree”, “instrument” and “petition”, and

(j)in Schedule 10, the entries relating to—

(i)the Matrimonial Causes Act 1973,

(ii)the Domicile and Matrimonial Proceedings Act 1973,

(iii)sections 1, 7 and 63 of, and paragraph 38 of Schedule 2 to, the Domestic Proceedings and Magistrates' Courts Act 1978,

(iv)the Senior Courts Act 1981,

(v)the Administration of Justice Act 1982,

(vi)the Matrimonial and Family Proceedings Act 1984,

(vii)the Family Law Act 1986, and

(viii)Schedule 13 to the Children Act 1989.

(3)In consequence of subsections (1) and (2), the following provisions are repealed—

(a)paragraphs 50 to 52 of Schedule 4 to the Access to Justice Act 1999,

(b)the following provisions of the Welfare Reform and Pensions Act 1999—

(i)section 28(1)(b) and (c), (2), (4) and (5),

(ii)section 48(1)(b) and (c), (2), (4) and (5), and

(iii)in Schedule 12, paragraphs 64 to 66,

(c)paragraphs 22 to 25 of Schedule 1 to the Constitutional Reform Act 2005,

(d)paragraph 12 of Schedule 2 to the Children and Adoption Act 2006, and

(e)the following provisions of Schedule 5 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012—

(i)paragraphs 43 to 45, and

(ii)in the second column of the Table in Part 2, paragraph (l) of the entry relating to Schedule 4 to the Access to Justice Act 1999.

(4)In consequence of subsection (1), in section 1 of the Family Law Act 1996 (general principles underlying Part 2), in the words before paragraph (a) and in the title, for “Parts II and III” substitute “ section 22 ”.

(5)In consequence of subsection (3)(b)(i), in section 28(11) of the Welfare Reform and Pensions Act 1999 (interpretation of subsections (4)(b), (5)(c) and (6)) for “subsections (4)(b), (5)(c) and” substitute “ subsection ”.

(6)The modifications set out in subsection (7), which were originally made by article 3(2) of the No. 2 Order and article 4 of the No. 3 Order, are to continue to have effect but as amendments of the provisions concerned (rather than as modifications having effect until the coming into force of provisions of the Family Law Act 1996 repealed by this section without having come into force).

(7)The modifications are—

(a)in section 22(2) of the Matrimonial and Family Proceedings Act 1984 for the words from “if” to “granted” substitute “ if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation has been granted ”, and

(b)in section 31 of the Matrimonial Causes Act 1973—

(i)in subsection (7D) for “Subsections (7) and (8) of section 22A” substitute “ Section 23(6) ”,

(ii)in subsection (7D) for “section 22A” substitute “ section 23 ”, and

(iii)in subsection (7F) for “section 23A” substitute “ section 24 ”.

(8)In section 31(7D) of the Matrimonial Causes Act 1973—

(a)for “apply”, in the first place, substitute “ applies ”, and

(b)for “they apply where it” substitute “ it applies where the court ”.

(9)Articles 3(2) and 4 of the No. 2 Order, and article 4 of the No. 3 Order, are revoked; and in subsection (6) and this subsection—

PART 3 E+WChildren and young people in England with special educational needs or disabilities

Annotations:

Modifications etc. (not altering text)

Local authority functions: general principlesE+W

19Local authority functions: supporting and involving children and young peopleE+W

In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular—

(a)the views, wishes and feelings of the child and his or her parent, or the young person;

(b)the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;

(c)the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;

(d)the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I18S. 19 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Special educational needs etcE+W

20When a child or young person has special educational needsE+W

(1)A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.

(2)A child of compulsory school age or a young person has a learning difficulty or disability if he or she—

(a)has a significantly greater difficulty in learning than the majority of others of the same age, or

(b)has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

(3)A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made).

(4)A child or young person does not have a learning difficulty or disability solely because the language (or form of language) in which he or she is or will be taught is different from a language (or form of language) which is or has been spoken at home.

(5)This section applies for the purposes of this Part.

Annotations:

Commencement Information

I19S. 20 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

21Special educational provision, health care provision and social care provisionE+W

(1)“Special educational provision”, for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—

(a)mainstream schools in England,

(b)maintained nursery schools in England,

(c)mainstream post-16 institutions in England, or

(d)places in England at which relevant early years education is provided.

(2)“Special educational provision”, for a child aged under two, means educational provision of any kind.

(3)Health care provision” means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006.

(4)Social care provision” means the provision made by a local authority in the exercise of its social services functions.

(5)Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).

(6)This section applies for the purposes of this Part.

Annotations:

Commencement Information

I20S. 21 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Identifying children and young people with special educational needs and disabilitiesE+W

22Identifying children and young people with special educational needs and disabilitiesE+W

A local authority in England must exercise its functions with a view to securing that it identifies—

(a)all the children and young people in its area who have or may have special educational needs, and

(b)all the children and young people in its area who have a disability.

Annotations:

Commencement Information

I21S. 22 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

23Duty of health bodies to bring certain children to local authority's attentionE+W

(1)This section applies where, in the course of exercising functions in relation to a child who is under compulsory school age, a clinical commissioning group, NHS trust or NHS foundation trust form the opinion that the child has (or probably has) special educational needs or a disability.

(2)The group or trust must—

(a)inform the child's parent of their opinion and of their duty under subsection (3), and

(b)give the child's parent an opportunity to discuss their opinion with an officer of the group or trust.

(3)The group or trust must then bring their opinion to the attention of the appropriate local authority in England.

(4)If the group or trust think a particular voluntary organisation is likely to be able to give the parent advice or assistance in connection with any special educational needs or disability the child may have, they must inform the parent of that.

Annotations:

Commencement Information

I22S. 23 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Children and young people for whom a local authority is responsibleE+W

24When a local authority is responsible for a child or young personE+W

(1)A local authority in England is responsible for a child or young person if he or she is in the authority's area and has been—

(a)identified by the authority as someone who has or may have special educational needs, or

(b)brought to the authority's attention by any person as someone who has or may have special educational needs.

(2)This section applies for the purposes of this Part.

Annotations:

Commencement Information

I23S. 24 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Education, health and care provision: integration and joint commissioningE+W

25Promoting integrationE+W

(1)A local authority in England must exercise its functions under this Part with a view to ensuring the integration of educational provision and training provision with health care provision and social care provision, where it thinks that this would—

(a)promote the well-being of children or young people in its area who have special educational needs or a disability, or

(b)improve the quality of special educational provision—

(i)made in its area for children or young people who have special educational needs, or

(ii)made outside its area for children or young people for whom it is responsible who have special educational needs.

(2)The reference in subsection (1) to the well-being of children and young people is to their well-being so far as relating to—

(a)physical and mental health and emotional well-being;

(b)protection from abuse and neglect;

(c)control by them over their day-to-day lives;

(d)participation in education, training or recreation;

(e)social and economic well-being;

(f)domestic, family and personal relationships;

(g)the contribution made by them to society.

Annotations:

Commencement Information

I24S. 25 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

26Joint commissioning arrangementsE+W

(1)A local authority in England and its partner commissioning bodies must make arrangements (“joint commissioning arrangements”) about the education, health and care provision to be secured for—

(a)children and young people for whom the authority is responsible who have special educational needs, and

(b)children and young people in the authority's area who have a disability.

(2)In this Part “education, health and care provision” means—

(a)special educational provision;

(b)health care provision;

(c)social care provision.

(3)Joint commissioning arrangements must include arrangements for considering and agreeing—

(a)the education, health and care provision reasonably required by—

(i)the learning difficulties and disabilities which result in the children and young people within subsection (1)(a) having special educational needs, and

(ii)the disabilities of the children and young people within subsection (1)(b);

(b)what education, health and care provision is to be secured;

(c)by whom education, health and care provision is to be secured;

(d)what advice and information is to be provided about education, health and care provision;

(e)by whom, to whom and how such advice and information is to be provided;

(f)how complaints about education, health and care provision may be made and are to be dealt with;

(g)procedures for ensuring that disputes between the parties to the joint commissioning arrangements are resolved as quickly as possible.

(4)Joint commissioning arrangements about securing education, health and care provision must in particular include arrangements for—

(a)securing EHC needs assessments;

(b)securing the education, health and care provision specified in EHC plans;

(c)agreeing personal budgets under section 49.

(5)Joint commissioning arrangements may also include other provision.

(6)The parties to joint commissioning arrangements must—

(a)have regard to them in the exercise of their functions, and

(b)keep them under review.

(7)Section 116B of the Local Government and Public Involvement in Health Act 2007 (duty to have regard to assessment of relevant needs and joint health and wellbeing strategy) applies in relation to functions exercisable under this section.

(8)A local authority's “partner commissioning bodies” are—

(a)the National Health Service Commissioning Board, to the extent that it is under a duty under section 3B of the National Health Service Act 2006 to arrange for the provision of services or facilities for—

(i)any children and young people for whom the authority is responsible who have special educational needs, or

(ii)any children and young people in the authority's area who have a disability, and

(b)each clinical commissioning group that is under a duty under section 3 of that Act to arrange for the provision of services or facilities for any children and young people within paragraph (a).

(9)Regulations may prescribe circumstances in which a clinical commissioning group that would otherwise be a partner commissioning body of a local authority by virtue of subsection (8)(b) is to be treated as not being a partner commissioning body of the authority.

Annotations:

Commencement Information

I25S. 26 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Review of education and care provisionE+W

27Duty to keep education and care provision under reviewE+W

(1)A local authority in England must keep under review—

(a)the educational provision, training provision and social care provision made in its area for children and young people who have special educational needs or a disability, and

(b)the educational provision, training provision and social care provision made outside its area for—

(i)children and young people for whom it is responsible who have special educational needs, and

(ii)children and young people in its area who have a disability.

(2)The authority must consider the extent to which the provision referred to in subsection (1)(a) and (b) is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned.

(3)In exercising its functions under this section, the authority must consult—

(a)children and young people in its area with special educational needs, and the parents of children in its area with special educational needs;

(b)children and young people in its area who have a disability, and the parents of children in its area who have a disability;

(c)the governing bodies of maintained schools and maintained nursery schools in its area;

(d)the proprietors of Academies in its area;

(e)the governing bodies, proprietors or principals of post-16 institutions in its area;

(f)the governing bodies of non-maintained special schools in its area;

(g)the advisory boards of children's centres in its area;

(h)the providers of relevant early years education in its area;

(i)the governing bodies, proprietors or principals of other schools and post-16 institutions in England and Wales that the authority thinks are or are likely to be attended by—

(i)children or young people for whom it is responsible, or

(ii)children or young people in its area who have a disability;

(j)a youth offending team that the authority thinks has functions in relation to—

(i)children or young people for whom it is responsible, or

(ii)children or young people in its area who have a disability;

(k)such other persons as the authority thinks appropriate.

(4)Section 116B of the Local Government and Public Involvement in Health Act 2007 (duty to have regard to assessment of relevant needs and joint health and wellbeing strategy) applies in relation to functions exercisable under this section.

(5)Children's centre” has the meaning given by section 5A(4) of the Childcare Act 2006.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I26S. 27 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Co-operation and assistanceE+W

28Co-operating generally: local authority functionsE+W

(1)A local authority in England must co-operate with each of its local partners, and each local partner must co-operate with the authority, in the exercise of the authority's functions under this Part.

(2)Each of the following is a local partner of a local authority in England for this purpose—

(a)where the authority is a county council for an area for which there is also a district council, the district council;

(b)the governing body of a maintained school or maintained nursery school that is maintained by the authority or provides education or training for children or young people for whom the authority is responsible;

(c)the proprietor of an Academy that is in the authority's area or provides education or training for children or young people for whom the authority is responsible;

(d)the proprietor of a non-maintained special school that is in the authority's area or provides education or training for children or young people for whom the authority is responsible;

(e)the governing body of an institution within the further education sector that is in the authority's area, or is attended, or likely to be attended, by children or young people for whom the authority is responsible;

(f)the management committee of a pupil referral unit that is in the authority's area, or is in England and is or is likely to be attended by children or young people for whom the authority is responsible;

(g)the proprietor of an institution approved by the Secretary of State under section 41 (independent special schools and special post 16 institutions: approval) that is in the authority's area, or is attended, or likely to be attended, by children or young people for whom the authority is responsible;

(h)any other person (other than a school or post-16 institution) that makes special educational provision for a child or young person for whom the authority is responsible;

(i)a youth offending team that the authority thinks has functions in relation to children or young people for whom it is responsible;

(j)a person in charge of relevant youth accommodation—

(i)in which there are detained persons aged 18 or under for whom the authority was responsible immediately before the beginning of their detention, or

(ii)that the authority thinks is accommodation in which such persons are likely to be detained;

(k)the National Health Service Commissioning Board;

(l)a clinical commissioning group—

(i)whose area coincides with, or falls wholly or partly within, the authority's area, or

(ii)which is under a duty under section 3 of the National Health Service Act 2006 to arrange for the provision of services or facilities for any children and young people for whom the authority is responsible;

(m)an NHS trust or NHS foundation trust which provides services in the authority's area, or which exercises functions in relation to children or young people for whom the authority is responsible;

(n)a Local Health Board which exercises functions in relation to children or young people for whom the authority is responsible.

(3)A local authority in England must make arrangements for ensuring co-operation between—

(a)the officers of the authority who exercise the authority's functions relating to education or training,

(b)the officers of the authority who exercise the authority's social services functions for children or young people with special educational needs, and

(c)the officers of the authority, so far as they are not officers within paragraph (a) or (b), who exercise the authority's functions relating to provision which is within section 30(2)(e) (provision to assist in preparing children and young people for adulthood and independent living).

(4)Regulations may prescribe circumstances in which a clinical commissioning group that would otherwise be a local partner of a local authority by virtue of subsection (2)(l)(ii) is to be treated as not being a local partner of the authority.

Annotations:

Commencement Information

I27S. 28 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

29Co-operating generally: governing body functionsE+W

(1)This section applies where an appropriate authority for a school or post-16 institution mentioned in subsection (2) has functions under this Part.

(2)The schools and post-16 institutions referred to in subsection (1) are—

(a)mainstream schools;

(b)maintained nursery schools;

(c)16 to 19 Academies;

(d)institutions within the further education sector;

(e)pupil referral units;

(f)alternative provision Academies.

(3)The appropriate authority must co-operate with each responsible local authority, and each responsible local authority must co-operate with the appropriate authority, in the exercise of those functions.

(4)A responsible local authority, in relation to an appropriate authority for a school or post-16 institution mentioned in subsection (2), is a local authority in England that is responsible for any child or young person who is a registered pupil or a student at the school or post-16 institution.

(5)The “appropriate authority” for a school or post-16 institution is—

(a)in the case of a maintained school, maintained nursery school, or institution within the further education sector, the governing body;

(b)in the case of an Academy, the proprietor;

(c)in the case of a pupil referral unit, the management committee.

Annotations:

Commencement Information

I28S. 29 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Information and adviceE+W

30Local offerE+W

(1)A local authority in England must publish information about—

(a)the provision within subsection (2) it expects to be available in its area at the time of publication for children and young people who have special educational needs or a disability, and

(b)the provision within subsection (2) it expects to be available outside its area at that time for—

(i)children and young people for whom it is responsible, and

(ii)children and young people in its area who have a disability.

(2)The provision for children and young people referred to in subsection (1) is—

(a)education, health and care provision;

(b)other educational provision;

(c)other training provision;

(d)arrangements for travel to and from schools and post-16 institutions and places at which relevant early years education is provided;

(e)provision to assist in preparing children and young people for adulthood and independent living.

(3)For the purposes of subsection (2)(e), provision to assist in preparation for adulthood and independent living includes provision relating to—

(a)finding employment;

(b)obtaining accommodation;

(c)participation in society.

(4)Information required to be published by an authority under this section is to be known as its “local offer”.

(5)A local authority must keep its local offer under review and may from time to time revise it.

(6)A local authority must from time to time publish—

(a)comments about its local offer it has received from or on behalf of—

(i)children and young people with special educational needs, and the parents of children with special educational needs, and

(ii)children and young people who have a disability, and the parents of children who have a disability, and

(b)the authority's response to those comments (including details of any action the authority intends to take).

(7)Comments published under subsection (6)(a) must be published in a form that does not enable the person making them to be identified.

(8)Regulations may make provision about—

(a)the information to be included in an authority's local offer;

(b)how an authority's local offer is to be published;

(c)who is to be consulted by an authority in preparing and reviewing its local offer;

(d)how an authority is to involve—

(i)children and young people with special educational needs, and the parents of children with special educational needs, and

(ii)children and young people who have a disability, and the parents of children who have a disability,

in the preparation and review of its local offer;

(e)the publication of comments on the local offer, and the local authority's response, under subsection (6) (including circumstances in which comments are not required to be published).

(9)The regulations may in particular require an authority's local offer to include—

(a)information about how to obtain an EHC needs assessment;

(b)information about other sources of information, advice and support for—

(i)children and young people with special educational needs and those who care for them, and

(ii)children and young people who have a disability and those who care for them;

(c)information about gaining access to provision additional to, or different from, the provision mentioned in subsection (2);

(d)information about how to make a complaint about provision mentioned in subsection (2).

Annotations:

Modifications etc. (not altering text)

Commencement Information

I29S. 30 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(a)

I30S. 30 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

31Co-operating in specific cases: local authority functionsE+W

(1)This section applies where a local authority in England requests the co-operation of any of the following persons and bodies in the exercise of a function under this Part—

(a)another local authority;

(b)a youth offending team;

(c)the person in charge of any relevant youth accommodation;

(d)the National Health Service Commissioning Board;

(e)a clinical commissioning group;

(f)a Local Health Board;

(g)an NHS trust or NHS foundation trust.

(2)The person or body must comply with the request, unless the person or body considers that doing so would—

(a)be incompatible with the duties of the person or body, or

(b)otherwise have an adverse effect on the exercise of the functions of the person or body.

(3)A person or body that decides not to comply with a request under subsection (1) must give the authority that made the request written reasons for the decision.

(4)Regulations may provide that, where a person or body is under a duty to comply with a request to co-operate with a local authority in securing an EHC needs assessment, a detained person's EHC needs assessment or the preparation of an EHC plan, the person or body must comply with the request within a prescribed period, unless a prescribed exception applies.

Annotations:

Commencement Information

I31S. 31 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(a)

I32S. 31 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

32Advice and informationE+W

(1)A local authority in England must arrange for children and young people for whom it is responsible, and the parents of children for whom it is responsible, to be provided with advice and information about matters relating to the special educational needs of the children or young people concerned.

(2)A local authority in England must arrange for children and young people in its area with a disability, and the parents of children in its area with a disability, to be provided with advice and information about matters relating to the disabilities of the children or young people concerned.

(3)The authority must take such steps as it thinks appropriate for making the services provided under subsections (1) and (2) known to—

(a)the parents of children in its area;

(b)children in its area;

(c)young people in its area;

(d)the head teachers, proprietors and principals of schools and post-16 institutions in its area.

(4)The authority may also take such steps as it thinks appropriate for making the services provided under subsections (1) and (2) known to such other persons as it thinks appropriate.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I33S. 32 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Mainstream educationE+W

33Children and young people with EHC plansE+W

(1)This section applies where a local authority is securing the preparation of an EHC plan for a child or young person who is to be educated in a school or post-16 institution.

(2)In a case within section 39(5) or 40(2), the local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

(a)the wishes of the child's parent or the young person, or

(b)the provision of efficient education for others.

(3)A local authority may rely on the exception in subsection (2)(b) in relation to maintained nursery schools, mainstream schools or mainstream post-16 institutions in its area taken as a whole only if it shows that there are no reasonable steps that it could take to prevent the incompatibility.

(4)A local authority may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.

(5)The governing body, proprietor or principal of a maintained nursery school, mainstream school or mainstream post-16 institution may rely on the exception in subsection (2)(b) only if they show that there are no reasonable steps that they or the local authority could take to prevent the incompatibility.

(6)Subsection (2) does not prevent the child or young person from being educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State.

(7)This section does not affect the operation of section 63 (fees payable by local authority for special educational provision at non-maintained schools and post-16 institutions).

Annotations:

Modifications etc. (not altering text)

Commencement Information

I34S. 33 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

34Children and young people with special educational needs but no EHC planE+W

(1)This section applies to a child or young person in England who has special educational needs but for whom no EHC plan is maintained, if he or she is to be educated in a school or post-16 institution.

(2)The child or young person must be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, subject to subsections (3) and (4).

(3)The child or young person may be educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State.

(4)The child or young person may be educated in a special school or special post-16 institution during any period in which any of subsections (5) to (9) applies.

(5)This subsection applies while the child or young person is admitted to a special school or special post-16 institution for the purposes of an EHC needs assessment, if all the following have agreed to his or her admission to the school or post-16 institution—

(a)the local authority which is responsible for him or her;

(b)the head teacher of the school or the principal of the Academy or post-16 institution;

(c)the child's parent or the young person;

(d)anyone else whose advice is required to be obtained in connection with the assessment by virtue of regulations under section 36(11).

(6)This subsection applies while the child or young person remains admitted to a special school or special post-16 institution, in prescribed circumstances, following an EHC needs assessment at the school or post-16 institution.

(7)This subsection applies while the child or young person is admitted to a special school or special post-16 institution, following a change in his or her circumstances, if all the following have agreed to his or her admission to the school or post-16 institution—

(a)the local authority which is responsible for him or her;

(b)the head teacher of the school or the principal of the Academy or post-16 institution;

(c)the child's parent or the young person.

(8)This subsection applies while the child or young person is admitted to a special school which is established in a hospital and is—

(a)a community or foundation special school, or

(b)an Academy school.

(9)This subsection applies while the child is admitted to a special school or special post-16 institution that is an Academy, if the Academy arrangements made in respect of the school or post-16 institution permit it to admit children and young people with special educational needs for whom no EHC plan is maintained.

(10)This section does not affect the operation of section 63 (fees payable by local authority for special educational provision at non-maintained schools and post-16 institutions).

Annotations:

Modifications etc. (not altering text)

Commencement Information

I35S. 34 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(b)

I36S. 34 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

35Children with SEN in maintained nurseries and mainstream schoolsE+W

(1)This section applies where a child with special educational needs is being educated in a maintained nursery school or a mainstream school.

(2)Those concerned with making special educational provision for the child must secure that the child engages in the activities of the school together with children who do not have special educational needs, subject to subsection (3).

(3)Subsection (2) applies only so far as is reasonably practicable and is compatible with—

(a)the child receiving the special educational provision called for by his or her special educational needs,

(b)the provision of efficient education for the children with whom he or she will be educated, and

(c)the efficient use of resources.

Annotations:

Commencement Information

I37S. 35 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

AssessmentE+W

36Assessment of education, health and care needsE+W

(1)A request for a local authority in England to secure an EHC needs assessment for a child or young person may be made to the authority by the child's parent, the young person or a person acting on behalf of a school or post-16 institution.

(2)An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person.

(3)When a request is made to a local authority under subsection (1), or a local authority otherwise becomes responsible for a child or young person, the authority must determine whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

(4)In making a determination under subsection (3), the local authority must consult the child's parent or the young person.

(5)Where the local authority determines that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan it must notify the child's parent or the young person—

(a)of the reasons for that determination, and

(b)that accordingly it has decided not to secure an EHC needs assessment for the child or young person.

(6)Subsection (7) applies where—

(a)no EHC plan is maintained for the child or young person,

(b)the child or young person has not been assessed under this section or section 71 during the previous six months, and

(c)the local authority determines that it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

(7)The authority must notify the child's parent or the young person—

(a)that it is considering securing an EHC needs assessment for the child or young person, and

(b)that the parent or young person has the right to—

(i)express views to the authority (orally or in writing), and

(ii)submit evidence to the authority.

(8)The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(a)the child or young person has or may have special educational needs, and

(b)it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

(9)After an EHC needs assessment has been carried out, the local authority must notify the child's parent or the young person of—

(a)the outcome of the assessment,

(b)whether it proposes to secure that an EHC plan is prepared for the child or young person, and

(c)the reasons for that decision.

(10)In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.

(11)Regulations may make provision about EHC needs assessments, in particular—

(a)about requests under subsection (1);

(b)imposing time limits in relation to consultation under subsection (4);

(c)about giving notice;

(d)about expressing views and submitting evidence under subsection (7);

(e)about how assessments are to be conducted;

(f)about advice to be obtained in connection with an assessment;

(g)about combining an EHC needs assessment with other assessments;

(h)about the use for the purposes of an EHC needs assessment of information obtained as a result of other assessments;

(i)about the use of information obtained as a result of an EHC needs assessment, including the use of that information for the purposes of other assessments;

(j)about the provision of information, advice and support in connection with an EHC needs assessment.

Annotations:

Modifications etc. (not altering text)

C12S. 36 modified by 2002 c. 41, s. 36(9)(aa) (as inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 79(7); S.I. 2014/889, art. 7(a))

Commencement Information

I38S. 36 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(c)

I39S. 36 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

Education, health and care plansE+W

37Education, health and care plansE+W

(1)Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—

(a)the local authority must secure that an EHC plan is prepared for the child or young person, and

(b)once an EHC plan has been prepared, it must maintain the plan.

(2)For the purposes of this Part, an EHC plan is a plan specifying—

(a)the child's or young person's special educational needs;

(b)the outcomes sought for him or her;

(c)the special educational provision required by him or her;

(d)any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

(e)in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 F2...;

(f)any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).

(3)An EHC plan may also specify other health care and social care provision reasonably required by the child or young person.

(4)Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans.

(5)Regulations under subsection (4) about amendments of EHC plans must include provision applying section 33 (mainstream education for children and young people with EHC plans) to a case where an EHC plan is to be amended under those regulations.

Annotations:

Amendments (Textual)

Commencement Information

I40S. 37 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(c)

I41S. 37 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

38Preparation of EHC plans: draft planE+W

(1)Where a local authority is required to secure that an EHC plan is prepared for a child or young person, it must consult the child's parent or the young person about the content of the plan during the preparation of a draft of the plan.

(2)The local authority must then—

(a)send the draft plan to the child's parent or the young person, and

(b)give the parent or young person notice of his or her right to—

(i)make representations about the content of the draft plan, and

(ii)request the authority to secure that a particular school or other institution within subsection (3) is named in the plan.

(3)A school or other institution is within this subsection if it is—

(a)a maintained school;

(b)a maintained nursery school;

(c)an Academy;

(d)an institution within the further education sector in England;

(e)a non-maintained special school;

(f)an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

(4)A notice under subsection (2)(b) must specify a period before the end of which any representations or requests must be made.

(5)The draft EHC plan sent to the child's parent or the young person must not—

(a)name a school or other institution, or

(b)specify a type of school or other institution.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I42S. 38 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

39Finalising EHC plans: request for particular school or other institutionE+W

(1)This section applies where, before the end of the period specified in a notice under section 38(2)(b), a request is made to a local authority to secure that a particular school or other institution is named in an EHC plan.

(2)The local authority must consult—

(a)the governing body, proprietor or principal of the school or other institution,

(b)the governing body, proprietor or principal of any other school or other institution the authority is considering having named in the plan, and

(c)if a school or other institution is within paragraph (a) or (b) and is maintained by another local authority, that authority.

(3)The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

(4)This subsection applies where—

(a)the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b)the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i)the provision of efficient education for others, or

(ii)the efficient use of resources.

(5)Where subsection (4) applies, the local authority must secure that the plan—

(a)names a school or other institution which the local authority thinks would be appropriate for the child or young person, or

(b)specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person.

(6)Before securing that the plan names a school or other institution under subsection (5)(a), the local authority must (if it has not already done so) consult—

(a)the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and

(b)if that school or other institution is maintained by another local authority, that authority.

(7)The local authority must, at the end of the period specified in the notice under section 38(2)(b), secure that any changes it thinks necessary are made to the draft EHC plan.

(8)The local authority must send a copy of the finalised EHC plan to—

(a)the child's parent or the young person, and

(b)the governing body, proprietor or principal of any school or other institution named in the plan.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I43S. 39 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

40Finalising EHC plans: no request for particular school or other institutionE+W

(1)This section applies where no request is made to a local authority before the end of the period specified in a notice under section 38(2)(b) to secure that a particular school or other institution is named in an EHC plan.

(2)The local authority must secure that the plan—

(a)names a school or other institution which the local authority thinks would be appropriate for the child or young person concerned, or

(b)specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person.

(3)Before securing that the plan names a school or other institution under subsection (2)(a), the local authority must consult—

(a)the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and

(b)if that school or other institution is maintained by another local authority, that authority.

(4)The local authority must also secure that any changes it thinks necessary are made to the draft EHC plan.

(5)The local authority must send a copy of the finalised EHC plan to—

(a)the child's parent or the young person, and

(b)the governing body, proprietor or principal of any school or other institution named in the plan.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I44S. 40 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

41Independent special schools and special post-16 institutions: approvalE+W

(1)The Secretary of State may approve an institution within subsection (2) for the purpose of enabling the institution to be the subject of a request for it to be named in an EHC plan.

(2)An institution is within this subsection if it is—

(a)an independent educational institution (within the meaning of Chapter 1 of Part 4 of ESA 2008)—

(i)which has been entered on the register of independent educational institutions in England (kept under section 95 of that Act), and

(ii)which is specially organised to make special educational provision for students with special educational needs,

(b)an independent school—

(i)which has been entered on the register of independent schools in Wales (kept under section 158 of the Education Act 2002), and

(ii)which is specially organised to make special educational provision for pupils with special educational needs, or

(c)a special post-16 institution which is not an institution within the further education sector or a 16 to 19 Academy.

(3)The Secretary of State may approve an institution under subsection (1) only if its proprietor consents.

(4)The Secretary of State may withdraw approval given under subsection (1).

(5)Regulations may make provision about giving and withdrawing approval under this section, in particular—

(a)about the types of special post-16 institutions which may be approved under subsection (1);

(b)specifying criteria which an institution must meet before it can be approved under subsection (1);

(c)about the matters which may or must be taken into account in deciding to give or withdraw approval;

(d)about the publication of a list of all institutions who are approved under this section.

Annotations:

Commencement Information

I45S. 41 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(d)

I46S. 41 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

42Duty to secure special educational provision and health care provision in accordance with EHC PlanE+W

(1)This section applies where a local authority maintains an EHC plan for a child or young person.

(2)The local authority must secure the specified special educational provision for the child or young person.

(3)If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person.

(4)The responsible commissioning body”, in relation to any specified health care provision, means the body (or each body) that is under a duty to arrange health care provision of that kind in respect of the child or young person.

(5)Subsections (2) and (3) do not apply if the child's parent or the young person has made suitable alternative arrangements.

(6)Specified”, in relation to an EHC plan, means specified in the plan.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I47S. 42 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

43Schools and other institutions named in EHC plan: duty to admitE+W

(1)Subsection (2) applies if one of the following is named in an EHC plan—

(a)a maintained school;

(b)a maintained nursery school;

(c)an Academy;

(d)an institution within the further education sector in England;

(e)a non-maintained special school;

(f)an institution approved by the Secretary of State under section 41.

(2)The governing body, proprietor or principal of the school or other institution must admit the child or young person for whom the plan is maintained.

(3)Subsection (2) has effect regardless of any duty imposed on the governing body of a school by section 1(6) of SSFA 1998.

(4)Subsection (2) does not affect any power to exclude a pupil or student from a school or other institution.

Annotations:

Commencement Information

I48S. 43 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

44Reviews and re-assessmentsE+W

(1)A local authority must review an EHC plan that it maintains—

(a)in the period of 12 months starting with the date on which the plan was first made, and

(b)in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.

(2)A local authority must secure a re-assessment of the educational, health care and social care needs of a child or young person for whom it maintains an EHC plan if a request is made to it by—

(a)the child's parent or the young person, or

(b)the governing body, proprietor or principal of the school, post-16 institution or other institution which the child or young person attends.

(3)A local authority may also secure a re-assessment of those needs at any other time if it thinks it necessary.

(4)Subsections (1) and (2) are subject to any contrary provision in regulations made under subsection (7)(b).

(5)In reviewing an EHC plan maintained for a young person aged over 18, or deciding whether to secure a re-assessment of the needs of such a young person, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.

(6)During a review or re-assessment, a local authority must consult the parent of the child, or the young person, for whom it maintains the EHC plan.

(7)Regulations may make provision about reviews and re-assessments, in particular—

(a)about other circumstances in which a local authority must or may review an EHC plan or secure a re-assessment (including before the end of a specified phase of a child's or young person's education);

(b)about circumstances in which it is not necessary for a local authority to review an EHC plan or secure a re-assessment;

(c)about amending or replacing an EHC plan following a review or re-assessment.

(8)Regulations under subsection (7) about re-assessments may in particular apply provisions of or made under this Part that are applicable to EHC needs assessments, with or without modifications.

(9)Regulations under subsection (7)(c) must include provision applying section 33 (mainstream education for children and young people with EHC plans) to a case where an EHC plan is to be amended following a review.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I49S. 44 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(e)

I50S. 44 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

45Ceasing to maintain an EHC planE+W

(1)A local authority may cease to maintain an EHC plan for a child or young person only if—

(a)the authority is no longer responsible for the child or young person, or

(b)the authority determines that it is no longer necessary for the plan to be maintained.

(2)The circumstances in which it is no longer necessary for an EHC plan to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan.

(3)When determining whether a young person aged over 18 no longer requires the special educational provision specified in his or her EHC plan, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.

(4)A local authority may not cease to maintain an EHC plan for a child or young person until—

(a)after the end of the period allowed for bringing an appeal under section 51 against its decision to cease to maintain the plan, where no such appeal is brought before the end of that period;

(b)after the appeal has been finally determined, where such an appeal is brought before the end of that period.

(5)Regulations may make provision about ceasing to maintain an EHC plan, in particular about—

(a)other circumstances in which it is no longer necessary for an EHC plan to be maintained;

(b)circumstances in which a local authority may not determine that it is no longer necessary for an EHC plan to be maintained;

(c)the procedure to be followed by a local authority when determining whether to cease to maintain an EHC plan.

Annotations:

Commencement Information

I51S. 45 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(e)

I52S. 45 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

46Maintaining an EHC plan after young person's 25th birthdayE+W

(1)A local authority may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person attains the age of 25.

(2)Academic year” means the period of twelve months ending on the prescribed date.

Annotations:

Commencement Information

I53S. 46 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(e)

I54S. 46 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

47Transfer of EHC plansE+W

(1)Regulations may make provision for an EHC plan maintained for a child or young person by one local authority to be transferred to another local authority in England, where the other authority becomes responsible for the child or young person.

(2)The regulations may in particular—

(a)impose a duty on the other authority to maintain the plan;

(b)treat the plan as if originally prepared by the other authority;

(c)treat things done by the transferring authority in relation to the plan as done by the other authority.

Annotations:

Commencement Information

I55S. 47 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(e)

I56S. 47 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

48Release of child or young person for whom EHC plan previously maintainedE+W

(1)This section applies where—

(a)a child or young person who has been subject to a detention order (within the meaning of section 562(1A)(a) of EA 1996) is released,

(b)on the release date, a local authority in England becomes responsible for him or her, and

(c)an EHC plan was—

(i)maintained for him or her immediately before the start of the detention, or

(ii)kept for him or her under section 74 during the detention.

(2)The local authority must—

(a)maintain the plan, and

(b)review the plan as soon as reasonably practicable after the release date.

(3)Subsection (2)(b) is subject to any contrary provision in regulations under section 44(7)(b).

Annotations:

Commencement Information

I57S. 48 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

49Personal budgets and direct paymentsE+W

(1)A local authority that maintains an EHC plan, or is securing the preparation of an EHC plan, for a child or young person must prepare a personal budget for him or her if asked to do so by the child's parent or the young person.

(2)The authority prepares a “personal budget” for the child or young person if it identifies an amount as available to secure particular provision that is specified, or proposed to be specified, in the EHC plan, with a view to the child's parent or the young person being involved in securing the provision.

(3)Regulations may make provision about personal budgets, in particular—

(a)about requests for personal budgets;

(b)about the amount of a personal budget;

(c)about the sources of the funds making up a personal budget;

(d)for payments (“direct payments”) representing all or part of a personal budget to be made to a child's parent or a young person, or a person of a prescribed description in prescribed circumstances, in order to secure provision to which the budget relates;

(e)about the description of provision to which personal budgets and direct payments may (and may not) relate;

(f)for a personal budget or direct payment to cover the agreed cost of the provision to which the budget or payment relates;

(g)about when, how, to whom and on what conditions direct payments may (and may not) be made;

(h)about when direct payments may be required to be repaid and the recovery of unpaid sums;

(i)about conditions with which a person or body making direct payments must comply before, after or at the time of making a direct payment;

(j)about arrangements for providing information, advice or support in connection with personal budgets and direct payments.

(4)If the regulations include provision authorising direct payments, they must—

(a)require the consent of a child's parent or a young person, or a person of a prescribed description in prescribed circumstances, to be obtained before direct payments are made;

(b)require the authority to stop making direct payments where the required consent is withdrawn.

(5)Special educational provision acquired by means of a direct payment made by a local authority is to be treated as having been secured by the authority in pursuance of its duty under section 42(2), subject to any prescribed conditions or exceptions.

(6)Subsection (7) applies if—

(a)an EHC plan is maintained for a child or young person, and

(b)health care provision specified in the plan is acquired for him or her by means of a payment made by a commissioning body under section 12A(1) of the National Health Service Act 2006 (direct payments for health care).

(7)The health care provision is to be treated as having been arranged by the commissioning body in pursuance of its duty under section 42(3) of this Act, subject to any prescribed conditions or exceptions.

(8)Commissioning body”, in relation to any specified health care provision, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I58S. 49 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(f)

I59S. 49 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

50Continuation of services under section 17 of the Children Act 1989E+W

After section 17 of the Children Act 1989 (provision of services for children etc) insert—

17ZGSection 17 services: continued provision where EHC plan maintained

(1)This section applies where, immediately before a child in need reaches the age of 18—

(a)a local authority in England is providing services for the child in the exercise of functions conferred by section 17, and

(b)an EHC plan is maintained for the child.

(2)The local authority may continue to provide services for the child in the exercise of those functions after the child reaches the age of 18, but may not continue to do so after the EHC plan has ceased to be maintained.

(3)In this section “EHC plan” means a plan within section 37(2) of the Children and Families Act 2014.

Annotations:

Commencement Information

I60S. 50 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Appeals, mediation and dispute resolutionE+W

51AppealsE+W

(1)A child's parent or a young person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (mediation).

(2)The matters are—

(a)a decision of a local authority not to secure an EHC needs assessment for the child or young person;

(b)a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan;

(c)where an EHC plan is maintained for the child or young person—

(i)the child's or young person's special educational needs as specified in the plan;

(ii)the special educational provision specified in the plan;

(iii)the school or other institution named in the plan, or the type of school or other institution specified in the plan;

(iv)if no school or other institution is named in the plan, that fact;

(d)a decision of a local authority not to secure a re-assessment of the needs of the child or young person under section 44 following a request to do so;

(e)a decision of a local authority not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment under section 44;

(f)a decision of a local authority under section 45 to cease to maintain an EHC plan for the child or young person.

(3)A child's parent or a young person may appeal to the First-tier Tribunal under subsection (2)(c)—

(a)when an EHC plan is first finalised for the child or young person, and

(b)following an amendment or replacement of the plan.

(4)Regulations may make provision about appeals to the First-tier Tribunal in respect of EHC needs assessments and EHC plans, in particular about—

(a)other matters relating to EHC plans against which appeals may be brought;

(b)making and determining appeals;

(c)the powers of the First-tier Tribunal on determining an appeal;

(d)unopposed appeals.

(5)Regulations under subsection (4)(c) may include provision conferring power on the First-tier Tribunal, on determining an appeal against a matter, to make recommendations in respect of other matters (including matters against which no appeal may be brought).

(6)A person commits an offence if without reasonable excuse that person fails to comply with any requirement—

(a)in respect of the discovery or inspection of documents, or

(b)to attend to give evidence and produce documents,

where that requirement is imposed by Tribunal Procedure Rules in relation to an appeal under this section or regulations under subsection (4)(a).

(7)A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I61S. 51 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(g)

I62S. 51 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

52Right to mediationE+W

(1)This section applies where—

(a)a decision against which an appeal may be brought under section 51 is made in respect of a child or young person, or

(b)an EHC plan for a child or young person is made, amended or replaced.

(2)Before the end of the prescribed period after the decision is made, or the plan is made, amended or replaced, the local authority must notify the child's parent or the young person of—

(a)the right to mediation under section 53 or 54, and

(b)the requirement to obtain a certificate under section 55 before making certain appeals.

(3)If the parent or young person wishes to pursue mediation under section 53 or 54, he or she must inform the local authority of—

(a)that fact, and

(b)the issues in respect of which he or she wishes to pursue mediation (“the mediation issues”).

(4)If the mediation issues are, or include, the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the parent or young person must also inform the local authority of the health care provision which he or she wishes to be specified in the plan.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I63S. 52 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(g)

I64S. 52 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

53Mediation: health care issuesE+W

(1)This section applies where—

(a)the parent or young person informs the local authority under section 52 that he or she wishes to pursue mediation, and

(b)the mediation issues include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.

(2)The local authority must notify each relevant commissioning body of—

(a)the mediation issues, and

(b)anything of which it has been informed by the parent or young person under section 52(4).

(3)If the mediation issues are limited to the health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the responsible commissioning body (or, where there is more than one, the responsible commissioning bodies acting jointly) must—

(a)arrange for mediation between it (or them) and the parent or young person,

(b)ensure that the mediation is conducted by an independent person, and

(c)participate in the mediation.

(4)If the mediation issues include anything else—

(a)the local authority must—

(i)arrange for mediation between it, each responsible commissioning body and the parent or young person,

(ii)ensure that the mediation is conducted by an independent person, and

(iii)participate in the mediation, and

(b)each responsible commissioning body must also participate in the mediation.

(5)For the purposes of this section, a person is not independent if he or she is employed by any of the following—

(a)a local authority in England;

(b)a clinical commissioning group;

(c)the National Health Service Commissioning Board.

(6)In this section “responsible commissioning body”—

(a)if the mediation issues in question are or include the health care provision specified in an EHC plan, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person;

(b)if the mediation issues in question are or include the fact that no health care provision, or no health care provision of a particular kind, is specified in an EHC plan, means a body that would be under a duty to arrange health care provision of the kind in question if it were specified in the plan.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I65S. 53 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

54Mediation: educational and social care issues etcE+W

(1)This section applies where—

(a)the parent or young person informs the local authority under section 52 that he or she wishes to pursue mediation, and

(b)the mediation issues do not include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.

(2)The local authority must—

(a)arrange for mediation between it and the parent or young person,

(b)ensure that the mediation is conducted by an independent person, and

(c)participate in the mediation.

(3)For the purposes of this section, a person is not independent if he or she is employed by a local authority in England.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I66S. 54 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

55MediationE+W

(1)This section applies where a child's parent or young person intends to appeal to the First-tier Tribunal under section 51 or regulations made under that section in respect of—

(a)a decision of a local authority, or

(b)the content of an EHC plan maintained by a local authority.

(2)But this section does not apply in respect of an appeal concerning only—

(a)the school or other institution named in an EHC plan;

(b)the type of school or other institution specified in an EHC plan;

(c)the fact that an EHC plan does not name a school or other institution.

(3)The parent or young person may make the appeal only if a mediation adviser has issued a certificate to him or her under subsection (4) or (5).

(4)A mediation adviser must issue a certificate under this subsection to the parent or young person if—

(a)the adviser has provided him or her with information and advice about pursuing mediation under section 53 or 54, and

(b)the parent or young person has informed the adviser that he or she does not wish to pursue mediation.

(5)A mediation adviser must issue a certificate under this subsection to the parent or young person if the adviser has provided him or her with information and advice about pursuing mediation under section 53 or 54, and the parent or young person has—

(a)informed the adviser that he or she wishes to pursue mediation under the appropriate section, and

(b)participated in such mediation.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I67S. 55 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

56Mediation: supplementaryE+W

(1)Regulations may make provision for the purposes of sections 52 to 55, in particular—

(a)about giving notice;

(b)imposing time limits;

(c)enabling a local authority or commissioning body to take prescribed steps following the conclusion of mediation;

(d)about who may attend mediation;

(e)where a child's parent is a party to mediation, requiring the mediator to take reasonable steps to ascertain the views of the child;

(f)about the provision of advocacy and other support services for the parent or young person;

(g)requiring a local authority or commissioning body to pay reasonable travel expenses and other expenses of a prescribed description, up to any prescribed limit;

(h)about exceptions to the requirement in section 55(3);

(i)about the training, qualifications and experience of mediators and mediation advisers;

(j)conferring powers or imposing requirements on local authorities, commissioning bodies, mediators and mediation advisers.

(2)In section 55 and this section “mediation adviser” means an independent person who can provide information and advice about pursuing mediation.

(3)For the purposes of subsection (2), a person is not independent if he or she is employed by any of the following—

(a)a local authority in England;

(b)a clinical commissioning group;

(c)the National Health Service Commissioning Board.

(4)In this section “commissioning body” means a body that is under a duty to arrange health care provision of any kind.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I68S. 56 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(h)

I69S. 56 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

57Resolution of disagreementsE+W

(1)A local authority in England must make arrangements with a view to avoiding or resolving disagreements within subsection (2) or (3).

(2)The disagreements within this subsection are those about the exercise by the local authority or relevant bodies of their functions under this Part, where the disagreement is between—

(a)the local authority or a relevant body, and

(b)the parents of children, and young people, in the authority's area.

(3)The disagreements within this subsection are those about the exercise by the local authority of its functions relating to EHC needs assessments, the preparation and review of EHC plans, and re-assessment of educational, health care and social care needs, where the disagreement is between—

(a)the local authority and a responsible commissioning body, or

(b)a responsible commissioning body and the parents of children, or young people, in the authority's area.

(4)A local authority in England must make arrangements with a view to avoiding or resolving, in each relevant school or post-16 institution, disagreements within subsection (5).

(5)The disagreements within this subsection are those about the special educational provision made for a child or young person with special educational needs who is a registered pupil or a student at the relevant school or post-16 institution concerned, where the disagreement is between—

(a)the child's parent, or the young person, and

(b)the appropriate authority for the school or post-16 institution.

(6)Arrangements within this section must provide for the appointment of independent persons with the function of facilitating the avoidance or resolution of the disagreements to which the arrangements apply.

(7)For the purposes of subsection (6) a person is not independent if he or she is employed by any of the following—

(a)a local authority in England;

(b)a clinical commissioning group;

(c)the National Health Service Commissioning Board.

(8)A local authority in England must take such steps as it thinks appropriate for making the arrangements under this section known to—

(a)the parents of children in its area with special educational needs,

(b)young people in its area with special educational needs, and

(c)the head teachers, governing bodies, proprietors and principals of schools and post-16 institutions in its area.

(9)A local authority in England may take such steps as it thinks appropriate for making the arrangements under this section known to such other persons as it thinks appropriate.

(10)In this section—

(11)For the purposes of this section, the “appropriate authority” for a relevant school or post-16 institution is—

(a)in the case of a maintained school, maintained nursery school or non-maintained special school, the governing body;

(b)in the case of a post-16 institution, the governing body, proprietor or principal;

(c)in the case of an Academy or independent school, the proprietor;

(d)in the case of a pupil referral unit, the management committee;

(e)in the case of a place at which relevant early years education is provided, the provider of the relevant early years education.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I70S. 57 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

[F358Appeals and claims by children: pilot schemesE+W

(1)The Secretary of State may by order make pilot schemes enabling children in England to—

(a)appeal to the First-tier Tribunal under section 51;

(b)make a claim to the First-tier Tribunal under Schedule 17 to the Equality Act 2010 (disabled pupils: enforcement) that a responsible body in England has contravened Chapter 1 of Part 6 of that Act because of the child's disability.

(2)An order under subsection (1) may, in particular, make provision—

(a)about the age from which children may appeal or make a claim;

(b)in respect of appeals under section 51, about mediation and the application of section 55;

(c)about the bringing of appeals or making of claims by a child and by his or her parent concurrently;

(d)about determining whether a child is capable of bringing an appeal or making a claim, and the assistance and support a child may require to be able to do so;

(e)enabling a person to exercise a child's rights under an order under subsection (1) on behalf of the child;

(f)enabling children to have access to advice and information which is available to a parent or young person in respect of an appeal or claim of a kind mentioned in subsection (1);

(g)about the provision of advocacy and other support services to children;

(h)requiring notices to be given to a child (as well as to his or her parent);

(i)requiring documents to be served on a child (as well as on his or her parent).

(3)An order under subsection (1) may apply a statutory provision, with or without modifications.

(4) In subsection (3), “ statutory provision ” means a provision made by or under this or any other Act, whenever passed or made.

(5)This section is repealed at the end of five years beginning with the day on which this Act is passed.]

Annotations:

Amendments (Textual)

F3S. 58 repealed at the end of five years beginning with the day on which this Act is passed by Children and Families Act 2014 (c. 6), s. 58(5); 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)

Commencement Information

I71S. 58 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

59Appeals and claims by children: follow-up provisionE+W

(1)The Secretary of State may by order provide that children in England may—

(a)appeal to the First-tier Tribunal under section 51;

(b)make a claim to the First-tier Tribunal under Schedule 17 to the Equality Act 2010 (disabled pupils: enforcement) that a responsible body in England has contravened Chapter 1 of Part 6 of that Act because of the child's disability.

(2)The Secretary of State may not make an order under subsection (1) until the end of two years beginning with the day on which the first order is made under section 58(1).

(3)An order under subsection (1) may, in particular, make provision—

(a)about the age from which children may appeal or make a claim;

(b)in respect of appeals under section 51, about mediation and the application of section 55;

(c)about the bringing of appeals or making of claims by a child and by his or her parent concurrently;

(d)about determining whether a child is capable of bringing an appeal or making a claim, and the assistance and support a child may require to be able to do so;

(e)enabling a person to exercise a child's rights under an order under subsection (1) on behalf of the child;

(f)enabling children to have access to advice and information which is available to a parent or young person in respect of an appeal or claim of a kind mentioned in subsection (1);

(g)about the provision of advocacy and other support services to children;

(h)requiring notices to be given to a child (as well as to his or her parent);

(i)requiring documents to be served on a child (as well as on his or her parent).

(4)An order under subsection (1) may—

(a)amend, repeal or revoke a statutory provision, or

(b)apply a statutory provision, with or without modifications.

(5)In subsection (4), “statutory provision” means a provision made by or under this or any other Act, whenever passed or made.

Annotations:

Commencement Information

I72S. 59 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

60Equality Act 2010: claims against schools by disabled young peopleE+W

In Part 2 of Schedule 17 to the Equality Act 2010 (disabled pupils: enforcement in tribunals in England and Wales), in paragraph 3 (who may make a claim that a school has contravened Chapter 1 of Part 6 of that Act because of a person's disability) for “to the Tribunal by the person's parent” substitute

(a)to the English Tribunal by the person's parent or, if the person is over compulsory school age, the person;

(b)to the Welsh Tribunal by the person's parent.

Annotations:

Commencement Information

I73S. 60 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Special educational provision: functions of local authoritiesE+W

61Special educational provision otherwise than in schools, post-16 institutions etcE+W

(1)A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.

(2)An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.

(3)Before doing so, the authority must consult the child's parent or the young person.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I74S. 61 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

62Special educational provision outside England and WalesE+W

(1)This section applies where a local authority in England makes arrangements for a child or young person for whom it maintains an EHC plan to attend an institution outside England and Wales which specialises in providing for children or young people with special educational needs.

(2)The arrangements may (in particular) include contributing to or paying—

(a)fees charged by the institution;

(b)the child's or young person's travelling expenses;

(c)expenses reasonably incurred in maintaining the child or young person while at the institution or travelling to or from it;

(d)expenses reasonably incurred by someone accompanying the child or young person while travelling to or from the institution or staying there.

Annotations:

Commencement Information

I75S. 62 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

63Fees for special educational provision at non-maintained schools and post-16 institutionsE+W

(1)Subsection (2) applies where—

(a)a local authority maintains an EHC plan for a child or young person,

(b)special educational provision in respect of the child or young person is made at a school, post-16 institution or place at which relevant early years education is provided, and

(c)that school, institution or place is named in the EHC plan.

(2)The local authority must pay any fees payable in respect of education or training provided for the child or young person at that school, institution or place in accordance with the EHC plan.

(3)Subsection (4) applies where—

(a)a local authority is responsible for a child or young person for whom no EHC plan is maintained,

(b)special educational provision in respect of the child or young person is made at a school, post-16 institution or place at which relevant early years education is provided, and

(c)the local authority is satisfied that—

(i)the interests of the child or young person require special educational provision to be made, and

(ii)it is appropriate for education or training to be provided to the child or young person at the school, institution or place in question.

(4)The local authority must pay any fees payable in respect of the special educational provision made at the school, institution or place in question which is required to meet the special educational needs of the child or young person.

(5)Where board and lodging are provided for the child or young person at the school, post-16 institution or place mentioned in subsection (2) or (4), the authority must also pay any fees in respect of the board and lodging, if satisfied that special educational provision cannot be provided at the school, post-16 institution or place unless the board and lodging are also provided.

Annotations:

Commencement Information

I76S. 63 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

64Supply of goods and servicesE+W

(1)A local authority in England may supply goods and services to—

(a)the governing body of a maintained school or maintained nursery school in England;

(b)the proprietor of an Academy;

(c)the governing body of an institution within the further education sector that the authority thinks is or is to be attended by a young person for whom the authority maintains an EHC plan,

but only for the purpose set out in subsection (2).

(2)The purpose is that of assisting the governing body or proprietor in the performance of—

(a)any duty imposed on the body under section 66(2) (duty to use best endeavours to secure special educational provision called for by special educational needs);

(b)in the case of a governing body of a community or foundation special school, any duty imposed on the body.

(3)The goods and services may be supplied on the terms and conditions that the authority thinks fit, including terms as to payment.

(4)A local authority in England may supply goods and services to any authority or other person (other than a governing body or proprietor within subsection (1)), but only for the purpose set out in subsection (5).

(5)The purpose is that of assisting the authority or other person in making special educational provision for a child who is receiving relevant early years education, in a case where the authority has decided that the special educational provision is necessary for the child.

Annotations:

Commencement Information

I77S. 64 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

65Access to schools, post-16 institutions and other institutionsE+W

(1)This section applies where a local authority in England maintains an EHC plan for a child or young person.

(2)A person authorised by the authority is entitled to have access at any reasonable time to the premises of a school, post-16 institution or other institution at which education or training is provided in pursuance of the plan, for the purpose of monitoring the education or training.

(3)Subsection (2) does not apply to the premises of a mainstream post-16 institution in Wales.

Annotations:

Commencement Information

I78S. 65 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Special educational provision: functions of governing bodies and othersE+W

66Using best endeavours to secure special educational provisionE+W

(1)This section imposes duties on the appropriate authorities for the following schools and other institutions in England—

(a)mainstream schools;

(b)maintained nursery schools;

(c)16 to 19 Academies;

(d)alternative provision Academies;

(e)institutions within the further education sector;

(f)pupil referral units.

(2)If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must, in exercising its functions in relation to the school or other institution, use its best endeavours to secure that the special educational provision called for by the pupil's or student's special educational needs is made.

(3)The “appropriate authority” for a school or other institution is—

(a)in the case of a maintained school, maintained nursery school or institution within the further education sector, the governing body;

(b)in the case of an Academy, the proprietor;

(c)in the case of a pupil referral unit, the management committee.

Annotations:

Commencement Information

I79S. 66 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

67SEN co-ordinatorsE+W

(1)This section imposes duties on the appropriate authorities of the following schools in England—

(a)mainstream schools;

(b)maintained nursery schools.

(2)The appropriate authority must designate a member of staff at the school (to be known as the “SEN co-ordinator”) as having responsibility for co-ordinating the provision for pupils with special educational needs.

(3)Regulations may—

(a)require appropriate authorities which are subject to the duty imposed by subsection (2) to ensure that SEN co-ordinators have prescribed qualifications or prescribed experience (or both);

(b)confer other functions relating to SEN co-ordinators on appropriate authorities which are subject to the duty imposed by subsection (2).

(4)The “appropriate authority” for a school is—

(a)in the case of a maintained school or maintained nursery school, the governing body;

(b)in the case of an Academy, the proprietor.

Annotations:

Commencement Information

I80S. 67 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(i)

I81S. 67 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

68Informing parents and young peopleE+W

(1)This section applies if—

(a)special educational provision is made for a child or young person at a maintained school, a maintained nursery school, an Academy school, an alternative provision Academy or a pupil referral unit, and

(b)no EHC plan is maintained for the child or young person.

(2)The appropriate authority for the school must inform the child's parent or the young person that special educational provision is being made for the child or young person.

(3)The “appropriate authority” for a school is—

(a)in the case of a maintained school or maintained nursery school, the governing body;

(b)in the case of an Academy school or an alternative provision Academy, the proprietor;

(c)in the case of a pupil referral unit, the management committee.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I82S. 68 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

69SEN information reportE+W

(1)This section imposes a duty on—

(a)the governing bodies of maintained schools and maintained nursery schools in England, and

(b)the proprietors of Academy schools.

(2)A governing body or proprietor must prepare a report containing SEN information.

(3)“SEN information” is—

(a)such information as may be prescribed about the implementation of the governing body's or proprietor's policy for pupils at the school with special educational needs;

(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;

(iv)the plan prepared by the governing body or proprietor under paragraph 3 of Schedule 10 to the Equality Act 2010 (accessibility plan).

(4)In this section—

Annotations:

Commencement Information

I83S. 69 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(j)

I84S. 69 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

Detained personsE+W

70Application of Part to detained personsE+W

(1)Subject to this section and sections 71 to 75, nothing in or made under this Part applies to, or in relation to, a child or young person detained in pursuance of—

(a)an order made by a court, or

(b)an order of recall made by the Secretary of State.

(2)Subsection (1) does not apply to—

(a)section 28;

(b)section 31;

(c)section 77;

(d)section 80;

(e)section 83;

(f)any amendment made by this Part of a provision which applies to, or in relation to, a child or young person detained in pursuance of—

(i)an order made by a court, or

(ii)an order of recall made by the Secretary of State.

(3)Regulations may apply any provision of this Part, with or without modifications, to or in relation to a child or young person detained in pursuance of—

(a)an order made by a court, or

(b)an order of recall made by the Secretary of State.

(4)The Secretary of State must consult the Welsh Ministers before making regulations under subsection (3) which will apply any provision of this Part to, or in relation to, a child or young person who is detained in Wales.

(5)For the purposes of this Part—

(6)For the purposes of this Part—

(a)beginning of the detention” has the same meaning as in Chapter 5A of Part 10 of EA 1996 (persons detained in youth accommodation), and

(b)the home authority” has the same meaning as in that Chapter, subject to regulations under subsection (7) (and regulations under section 562J(4) of EA 1996 made by the Secretary of State may also make provision in relation to the definition of “the home authority” for the purposes of this Part).

(7)For the purposes of this Part, regulations may provide for paragraph (a) of the definition of “the home authority” in section 562J(1) of EA 1996 (the home authority of a looked after child) to apply with modifications in relation to such provisions of this Part as may be specified in the regulations.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I85S. 70(1) in force at 1.9.2014 for specified purposes by 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 and (1.9.2015) by S.I. 2015/1619))

I86S. 70(1) in force at 1.4.2015 in so far as not already in force by S.I. 2015/375, art. 2(a)

I87S. 70(2)-(7) in force at 1.4.2015 by S.I. 2015/375, art. 2(b)

71Assessment of post-detention education, health and care needs of detained personsE+W

(1)This section applies in relation to a detained person for whom—

(a)the home authority is a local authority in England, and

(b)no EHC plan is being kept by a local authority.

(2)A request to the home authority to secure a detained person's EHC needs assessment for the detained person may be made by—

(a)the appropriate person, or

(b)the person in charge of the relevant youth accommodation where the detained person is detained.

(3)Where this subsection applies, the home authority must determine whether it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention.

(4)Subsection (3) applies where—

(a)a request is made under subsection (2),

(b)the detained person has been brought to the home authority's attention by any person as someone who has or may have special educational needs, or

(c)the detained person has otherwise come to the home authority's attention as someone who has or may have special educational needs.

(5)In making a determination under subsection (3), the home authority must consult—

(a)the appropriate person, and

(b)the person in charge of the relevant youth accommodation where the detained person is detained.

(6)Where the home authority determines that it will not be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention, it must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained—

(a)of the reasons for that determination, and

(b)that accordingly it has decided not to secure a detained person's EHC needs assessment for the detained person.

(7)Subsection (8) applies where—

(a)the detained person has not been assessed under this section or section 36 during the previous six months, and

(b)the home authority determines that it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention.

(8)The home authority must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained—

(a)that it is considering securing a detained person's EHC needs assessment for the detained person, and

(b)that the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained each have the right to—

(i)express views to the authority (orally or in writing), and

(ii)submit evidence to the authority.

(9)The home authority must secure a detained person's EHC needs assessment if, after having regard to any views expressed and evidence submitted under subsection (8), the authority is of the opinion that—

(a)the detained person has or may have special educational needs, and

(b)it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention.

(10)After a detained person's EHC needs assessment has been carried out, the local authority must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained of—

(a)the outcome of the assessment,

(b)whether it proposes to secure that an EHC plan is prepared for the detained person, and

(c)the reasons for that decision.

(11)Regulations may make provision about detained persons' EHC needs assessments, in particular—

(a)about requests under subsection (2);

(b)imposing time limits in relation to consultation under subsection (5);

(c)about giving notice;

(d)about expressing views and submitting evidence under subsection (8);

(e)about how detained persons' EHC needs assessments are to be conducted;

(f)about advice to be obtained in connection with a detained person's EHC needs assessment;

(g)about combining a detained person's EHC needs assessment with other assessments;

(h)about the use for the purposes of a detained person's EHC needs assessment of information obtained as a result of other assessments;

(i)about the use of information obtained as a result of a detained person's EHC needs assessment, including the use of that information for the purposes of other assessments;

(j)about the provision of information, advice and support in connection with a detained person's EHC needs assessment.

Annotations:

Commencement Information

I88S. 71 in force at 1.4.2015 by S.I. 2015/375, art. 2(b)

72Securing EHC plans for certain detained personsE+W

(1)Where, in the light of a detained person's EHC needs assessment it is necessary for special education provision to be made for the detained person in accordance with an EHC plan on release from detention, the home authority must secure that an EHC plan is prepared for him or her.

(2)Sections 37(2) to (5) and 38 to 40 apply in relation to an EHC plan secured under subsection (1) as they apply to an EHC plan secured under section 37(1), with the following modifications—

(a)references to “the child or young person” are to be read as references to the detained person,

(b)references to the local authority are to be read as references to the home authority, and

(c)references to the child's parent or the young person are to be read as references to the appropriate person.

(3)Section 33(2) to (7) apply where a home authority is securing the preparation of an EHC plan under this section as they apply where a local authority is securing a plan under section 37, with the following modifications—

(a)references to “the child or young person” are to be read as references to the detained person,

(b)references to the local authority are to be read as references to the home authority,

(c)references to the child's parent or the young person are to be read as references to the appropriate person, and

(d)the reference in subsection (2) to section 39(5) and 40(2) is to be read as a reference to those provisions as applied by subsection (2) of this section.

Annotations:

Commencement Information

I89S. 72 in force at 1.4.2015 by S.I. 2015/375, art. 2(b)

73EHC plans for certain detained persons: appeals and mediationE+W

(1)An appropriate person in relation to a detained person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (as applied by this section).

(2)The matters are—

(a)a decision of the home authority not to secure a detained person's EHC needs assessment for the detained person;

(b)a decision of the home authority, following a detained person's EHC needs assessment, that it is not necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention;

(c)where an EHC plan is secured for the detained person—

(i)the school or other institution named in the plan, or the type of school or other institution named in the plan;

(ii)if no school or other institution is named in the plan, that fact.

(3)The appropriate person may appeal to the First-tier Tribunal under subsection (2)(c) only when an EHC plan is first finalised for the detained person in accordance with section 72.

(4)Regulations may make provision about appeals to the First-tier Tribunal in respect of detained persons' EHC needs assessments and EHC plans secured under section 72, in particular about—

(a)making and determining appeals;

(b)the powers of the First-tier Tribunal on determining an appeal;

(c)unopposed appeals.

(5)A person commits an offence if without reasonable excuse that person fails to comply with any requirement—

(a)in respect of the discovery or inspection of documents, or

(b)to attend to give evidence and produce documents,

where that requirement is imposed by Tribunal Procedure Rules in relation to an appeal under this section.

(6)A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7)Section 55(2) to (5) apply where an appropriate person intends to appeal to the First-tier Tribunal under this section as they apply where a child's parent or young person intends to appeal under section 51, with the following modifications—

(a)references to the child's parent or young person are to be read as references to the appropriate person, and

(b)references to mediation under section 53 or 54 are to be read as references to mediation with the home authority.

(8)Where, by virtue of subsection (7), the appropriate person has informed the mediation adviser that he or she wishes to pursue mediation with the home authority—

(a)the adviser must notify the authority, and

(b)the authority must—

(i)arrange for mediation between it and the appropriate person,

(ii)ensure that the mediation is conducted by an independent person, and

(iii)participate in the mediation.

For this purpose a person is not independent if he or she is employed by a local authority in England.

(9)Regulations under section 56 may make provision for the purposes of subsections (7) and (8) of this section, and accordingly section 56 has effect for those purposes with the following modifications—

(a)the references in subsection (1) to commissioning bodies are to be ignored;

(b)the reference in subsection (1)(e) to a child's parent is to be read as a reference to the parent of a detained person who is a child;

(c)the reference in subsection (1)(f) to the child's parent or young person is to be read as a reference to the appropriate person;

(d)in subsection (3), paragraphs (b) and (c) are to be ignored;

(e)subsection (4) is to be ignored.

Annotations:

Commencement Information

I90S. 73 in force at 1.4.2015 by S.I. 2015/375, art. 2(b)

74Duty to keep EHC plans for detained personsE+W

(1)This section applies in relation to a detained person—

(a)for whom a local authority in England was maintaining an EHC plan immediately before the beginning of his or her detention, or

(b)for whom the home authority has secured the preparation of an EHC plan under section 72.

(2)The home authority must keep the EHC plan while the person is detained in relevant youth accommodation.

(3)Regulations may make provision about the keeping of EHC plans under subsection (2), and the disclosure of such plans.

(4)The home authority must arrange appropriate special educational provision for the detained person while he or she is detained in relevant youth accommodation.

(5)If the EHC plan specifies health care provision, the detained person's health services commissioner must arrange appropriate health care provision for the detained person while he or she is detained in relevant youth accommodation.

(6)For the purposes of subsection (4), appropriate special educational provision is—

(a)the special educational provision specified in the EHC plan, or

(b)if it appears to the home authority that it is not practicable for that special educational provision to be provided, educational provision corresponding as closely as possible to that special educational provision, or

(c)if it appears to the home authority that the special educational provision specified in the plan is no longer appropriate for the person, such special educational provision as reasonably appears to the home authority to be appropriate.

(7)For the purposes of subsection (5), appropriate health care provision is—

(a)the health care provision specified in the EHC plan, or

(b)if it appears to the detained person's health services commissioner that it is not practicable for that health care provision to be provided, health care provision corresponding as closely as possible to that health care provision, or

(c)if it appears to the detained person's health services commissioner that the health care provision specified in the plan is no longer appropriate for the person, such health care provision as reasonably appears to the detained person's health services commissioner to be appropriate.

(8)In this section, “detained person's health services commissioner”, in relation to a detained person, means the body that is under a duty under the National Health Service Act 2006 to arrange for the provision of services or facilities in respect of the detained person during his or her detention.

Annotations:

Commencement Information

I91S. 74 in force at 1.4.2015 by S.I. 2015/375, art. 2(b)

75Supply of goods and services: detained personsE+W

(1)A local authority in England may supply goods and services to any authority or other person making special educational provision for a detained person, but only for the purpose set out in subsection (2).

(2)The purpose is that of assisting the local authority in the performance of a duty under section 74.

(3)The goods and services may be supplied on the terms and conditions that the authority thinks fit, including terms as to payment.

Annotations:

Commencement Information

I92S. 75 in force at 1.4.2015 by S.I. 2015/375, art. 2(b)

Information to improve well-being of children and young people with SENE+W

76Provision and publication of special needs informationE+W

(1)The Secretary of State must exercise the powers listed in subsection (2) with a view to securing, in particular, the provision of special needs information which the Secretary of State thinks would be likely to assist the Secretary of State or others in improving the well-being of—

(a)children in England with special educational needs, and

(b)young people aged under 19 in England with special educational needs.

(2)The powers are those of the Secretary of State under the following provisions of EA 1996 (so far as relating to England)—

(a)section 29 (information from local authorities for purposes of Secretary of State's functions);

(b)section 408 (information in relation to maintained schools);

(c)section 537 (information about schools);

(d)section 537A (information about individual pupils);

(e)section 537B (information about children receiving funded education outside school);

(f)section 538 (information from governing bodies for purposes of Secretary of State's education functions).

(3)In each calendar year, the Secretary of State must publish, or arrange to be published, special needs information which has been obtained under EA 1996, where the Secretary of State thinks the publication of the information would be likely to assist the Secretary of State or others in improving the well-being of —

(a)children in England with special educational needs, and

(b)young people aged under 19 in England with special educational needs.

(4)Information published under subsection (3) must be published in the form and manner that the Secretary of State thinks fit, except that the names of the children and young people to whom the information relates must not be included.

(5)The Secretary of State may make a charge, or arrange for a charge to be made, for documents supplied by virtue of this section.

(6)A charge under subsection (5) must not exceed the cost of supply.

(7)Special needs information” means—

(a)information about children, and young people, in England with special educational needs, and

(b)information about special educational provision made for those children and young people.

(8)References in this section to the well-being of children and young people with special educational needs are to their well-being so far as relating to—

(a)physical and mental health and emotional well-being;

(b)protection from abuse and neglect;

(c)control by them over their day-to-day lives;

(d)participation in education, training or recreation;

(e)social and economic well-being;

(f)domestic, family and personal relationships;

(g)the contribution made by them to society.

Annotations:

Commencement Information

I93S. 76 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

Code of practiceE+W

77Code of practiceE+W

(1)The Secretary of State must issue a code of practice giving guidance about the exercise of their functions under this Part to—

(a)local authorities in England;

(b)the governing bodies of schools;

(c)the governing bodies of institutions within the further education sector;

(d)the proprietors of Academies;

(e)the management committees of pupil referral units;

(f)the proprietors of institutions approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval);

(g)providers of relevant early years education;

(h)youth offending teams;

(i)persons in charge of relevant youth accommodation;

(j)the National Health Service Commissioning Board;

(k)clinical commissioning groups;

(l)NHS trusts;

(m)NHS foundation trusts;

(n)Local Health Boards.

(2)The Secretary of State may revise the code from time to time.

(3)The Secretary of State must publish the current version of the code.

(4)The persons listed in subsection (1) must have regard to the code in exercising their functions under this Part.

(5)Those who exercise functions for the purpose of the exercise by those persons of functions under this Part must also have regard to the code.

(6)The First-tier Tribunal must have regard to any provision of the code that appears to it to be relevant to a question arising on an appeal under this Part.

Annotations:

Commencement Information

I94S. 77 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

78Making and approval of codeE+W

(1)Where the Secretary of State proposes to issue or revise a code under section 77, the Secretary of State must prepare a draft of the code (or revised code).

(2)The Secretary of State must consult such persons as the Secretary of State thinks fit about the draft and must consider any representations made by them.

(3)If the Secretary of State decides to proceed with the draft (in its original form or with modifications), the Secretary of State must lay a copy of the draft before each House of Parliament.

(4)The Secretary of State may not take any further steps in relation to—

(a)a proposed code unless the draft is approved by a resolution of each House, or

(b)a proposed revised code if, within the 40-day period, either House resolves not to approve the draft.

(5)Subsection (6) applies if—

(a)both Houses resolve to approve the draft, as mentioned in subsection (4)(a), or

(b)neither House resolves not to approve the draft, as mentioned in subsection (4)(b).

(6)The Secretary of State must issue the code or revised code in the form of the draft, and it comes into force on such date as the Secretary of State may by order appoint.

(7)Subsection (4) does not prevent a new draft of a proposed code (or proposed revised code) from being laid before Parliament.

(8)In this section “40-day period”, in relation to the draft of a proposed revised code, means—

(a)if the draft is laid before one House on a later day than the day on which it is laid before the other, the period of 40 days beginning with the later of the two days, and

(b)in any other case, the period of 40 days beginning with the day on which the draft is laid before each House.

(9)For the purposes of subsection (8), no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

Annotations:

Commencement Information

I95S. 78 in force at 1.5.2014 by S.I. 2014/889, art. 4A (as inserted (30.4.2014) by S.I. 2014/1134, art. 2(2))

79Review of resolution of disagreementsE+W

(1)The Secretary of State and the Lord Chancellor must carry out a review of how effectively disagreements about the exercise of functions under this Part are being resolved.

(2)The Secretary of State and the Lord Chancellor must prepare a report on the outcome of the review.

(3)The Secretary of State and the Lord Chancellor must lay the report before Parliament before the end of the period of three years beginning with the earliest date on which any provision of this Part comes into force.

Annotations:

Commencement Information

I96S. 79 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

SupplementaryE+W

80Parents and young people lacking capacityE+W

(1)Regulations may apply any statutory provision with modifications, for the purpose of giving effect to this Part in a case where the parent of a child, or a young person, lacks capacity at the relevant time.

(2)Regulations under subsection (1) may in particular include provision for—

(a)references to a child's parent to be read as references to, or as including references to, a representative of the parent;

(b)references to a young person to be read as references to, or as including references to, a representative of the young person, the young person's parent, or a representative of the young person's parent;

(c)modifications to have effect in spite of section 27(1)(g) of the Mental Capacity Act 2005 (Act does not permit decisions on discharging parental responsibilities in matters not relating to a child's property to be made on a person's behalf).

(3)Statutory provision” means a provision made by or under this or any other Act, whenever passed or made.

(4)The relevant time” means the time at which, under the statutory provision in question, something is required or permitted to be done by or in relation to the parent or young person.

(5)The reference in subsection (1) to lacking capacity is to lacking capacity within the meaning of the Mental Capacity Act 2005.

(6)Representative”, in relation to a parent or young person, means—

(a)a deputy appointed by the Court of Protection under section 16(2)(b) of the Mental Capacity Act 2005 to make decisions on the parent's or young person's behalf in relation to matters within this Part;

(b)the donee of a lasting power of attorney (within the meaning of section 9 of that Act) appointed by the parent or young person to make decisions on his or her behalf in relation to matters within this Part;

(c)an attorney in whom an enduring power of attorney (within the meaning of Schedule 4 to that Act) created by the parent or young person is vested, where the power of attorney is registered in accordance with paragraphs 4 and 13 of that Schedule or an application for registration of the power of attorney has been made.

Annotations:

Commencement Information

I97S. 80 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(k)

I98S. 80 in force at 1.9.2014 in so far as not already in force by 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 and (1.9.2015) by S.I. 2015/1619)

81Disapplication of Chapter 1 of Part 4 of EA 1996 in relation to children in EnglandE+W

Chapter 1 of Part 4 of EA 1996 (children with special educational needs) ceases to apply in relation to children in the area of a local authority in England.

Annotations:

Commencement Information

I99S. 81 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

82Consequential amendmentsE+W

Schedule 3 (amendments consequential on this Part) has effect.

Annotations:

Commencement Information

I100S. 82 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

83Interpretation of Part 3E+W

(1)In this Part—

(2)In this Part—

(3)A child or young person has a disability for the purposes of this Part if he or she has a disability for the purposes of the Equality Act 2010.

(4)A reference in this Part to “education”—

(a)includes a reference to full-time and part-time education, but

(b)does not include a reference to higher education,

and “educational” and “educate” (and other related terms) are to be read accordingly.

(5)A reference in this Part to—

(a)a community, foundation or voluntary school, or

(b)a community or foundation special school,

is to such a school within the meaning of SSFA 1998.

(6)A reference in this Part to a child or young person who is “in the area” of a local authority in England does not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales.

(7)EA 1996 and the preceding provisions of this Part (except so far as they amend other Acts) are to be read as if those provisions were contained in EA 1996.

Annotations:

Commencement Information

I101S. 83 in force at 1.9.2014 by 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 and (1.9.2015) by S.I. 2015/1619)

PART 4 E+WChildcare etc

84Childminder agenciesE+W

Schedule 4 (amendments to the Childcare Act 2006 to provide for the registration of childminder agencies on the childcare registers and the registration of certain childcare providers with those agencies, and other related amendments) has effect.

Annotations:

Commencement Information

I102S. 84 in force at 1.4.2014 for specified purposes by S.I. 2014/889, art. 3(l)

I103S. 84 in force at 1.9.2014 in so far as not already in force by S.I. 2014/889, art. 7(b)

85Inspections at request of providers of childcare to young childrenE+W

In section 49 of the Childcare Act 2006 (inspections of early years provision), after subsection (5) insert—

(5A)The Chief Inspector may charge a prescribed fee for conducting an inspection of early years provision where—

(a)the inspection is conducted at the request of a registered person who provides that early years provision, and

(b)the Chief Inspector is required by the Secretary of State under subsection (2)(b) to conduct that inspection.

Annotations:

Commencement Information

I104S. 85 in force at 13.5.2014 by S.I. 2014/889, art. 5(d)

86Repeal of local authority's duty to assess sufficiency of childcare provisionE+W

Section 11 of the Childcare Act 2006 (duty of local authority in England to assess sufficiency of childcare provision) is repealed.

Annotations:

Commencement Information

I105S. 86 in force at 13.5.2014 by S.I. 2014/889, art. 5(d)

87Discharge of authority's duty to secure free early years provisionE+W

(1)Part 1 of the Childcare Act 2006 (general functions of local authorities in England in relation to childcare) is amended as follows.

(2)After section 7 (duty to secure early years provision free of charge in accordance with regulations) insert—

7ADischarge of duty under section 7

(1)Regulations may require an English local authority to discharge its duty to a young child under section 7 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where—

(a)the early years provider is willing to provide it, and

(b)the early years provider is also willing to accept—

(i)any terms as to the payments which would be made to him or her in respect of the provision, and

(ii)any requirements which would be imposed in respect of it.

(2)Arrangements made by an authority to satisfy any requirement imposed under subsection (1) may be made with an early years provider or with an early years childminder agency or any other person who is able to arrange for an early years provider to provide early years provision.

(3)The regulations may provide that such a requirement—

(a)applies only if the early years provider is of a prescribed description;

(b)applies only if the early years provision provided by the early years provider is of a prescribed description;

(c)does not apply in prescribed circumstances.

(4)The regulations may provide that arrangements made by an authority for the purpose of complying with such a requirement must include provision allowing the local authority to terminate the arrangements in prescribed circumstances.

(5)In this section—

(3)After section 9 (arrangements between local authority and childcare providers) insert—

9AArrangements made by local authorities for the purposes of section 7

Regulations may provide that arrangements made by an English local authority for the purpose of discharging its duty under section 7—

(a)may impose requirements on the person with whom the arrangements are made only if the requirements are of a prescribed description;

(b)may not impose requirements of a prescribed description on the person with whom the arrangements are made.

Annotations:

Commencement Information

I106S. 87 in force at 13.5.2014 by S.I. 2014/889, art. 5(d)

88Governing bodies: provision of community facilitiesE+W

(1)Section 28 of the Education Act 2002 (limits on the powers of governing bodies of maintained schools to provide community facilities etc under section 27) is amended as follows.

(2)In subsection (4), for “a governing body” substitute “ the governing body of a maintained school in Wales ”.

(3)Omit subsection (4C).

(4)In subsection (5)—

(a)for “a governing body” substitute “ the governing body of a maintained school in Wales ”, and

(b)in paragraph (a) omit “(in relation to England) by the Secretary of State or (in relation to Wales)”.

Annotations:

Commencement Information

I107S. 88 in force at 13.5.2014 by S.I. 2014/889, art. 5(d)

89Childcare costs scheme: preparatory expenditureE+W

The Commissioners for Her Majesty's Revenue and Customs may incur expenditure in preparing for the introduction of a scheme for providing assistance in respect of the costs of childcare.

Annotations:

Commencement Information

I108S. 89 in force at 13.5.2014 by S.I. 2014/889, art. 5(d)

PART 5 E+W+S+N.I.Welfare of children

Child performancesE+W

90Extension of licensing of child performances to children under 14E+W

Section 38 of the Children and Young Persons Act 1963 (licences for performances by children under 14 not to be granted except for certain dramatic or musical performances) is repealed.

Tobacco, nicotine products and smokingE+W+S+N.I.

91Purchase of tobacco[F4, nicotine products] etc. on behalf of persons under 18E+W

(1)A person aged 18 or over who buys or attempts to buy tobacco [F5, cigarette papers or a relevant nicotine product] on behalf of an individual aged under 18 commits an offence.

(2)Where a person is charged with an offence under this section it is a defence—

(a)that the person had no reason to suspect that the individual concerned was aged under 18, or

(b)in a case where the person has bought or attempted to buy cigarette papers, that the person had no reason to suspect that the individual concerned intended to use the papers for smoking.

(3)A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4)A local weights and measures authority in England and Wales must enforce the provisions of this section in its area.

(5)Section 9 of, and Schedule 1 to, the Health Act 2006 (issue of fixed penalty notices in relation to certain smoking related offences) apply in relation to an offence under this section as they apply in relation to an offence under section 6(5) or 7(2) of that Act but with the following modifications—

(a)references to an enforcement authority are to be read as references to a local weights and measures authority;

(b)references to an authorised officer of an enforcement authority are to be read as references to any person authorised by a local weights and measures authority (whether or not an officer of the authority) in writing, either generally or specially, to act in matters arising under this section.

(6)Section 11 of, and Schedule 2 to, the Health Act 2006 (offence of obstruction of enforcement officers and powers of entry etc) apply for the purposes of this section as they apply for the purposes of Chapter 1 of Part 1 of that Act but with the following modifications—

(a)references to an enforcement authority are to be read as references to a local weights and measures authority;

(b)references to an authorised officer of an enforcement authority are to be read as references to any person (whether or not an officer of the authority) authorised by a local weights and measures authority in writing, either generally or specially, to act in matters arising under this section;

(c)references to Chapter 1 of Part 1 of the Act of 2006 are to be read as references to this section;

(d)section 11(5) is to be ignored;

(e)paragraph 10 of Schedule 2 is to be ignored.

(7)“Tobacco” has the same meaning in this section as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).

[F6(8)In this section “relevant nicotine product” means a nicotine product within the meaning of section 92 the sale of which at the same time and in the same circumstances to the individual aged under 18 would be prohibited by regulations for the time being in force under subsection (1) of that section.]

Annotations:

Amendments (Textual)

Commencement Information

I109S. 91 in force at 1.10.2014 for specified purposes by S.I. 2014/2609, art. 2

I110S. 91 in force at 1.10.2015 in so far as not already in force by S.I. 2015/375, art. 3

92Prohibition of sale of nicotine products to persons under 18E+W

(1)The Secretary of State may by regulations make provision prohibiting the sale of nicotine products to persons aged under 18.

(2)A person who breaches a prohibition in regulations under subsection (1) commits an offence.

(3)Subsection (2) does not apply if—

(a)at the time of the sale, the person to whom the nicotine product is sold is employed by a manufacturer of nicotine products to which regulations under subsection (1) apply or by a dealer in such products (whether wholesale or retail), and

(b)the purchase of the product is for the purposes of the manufacturer's or dealer's business.

(4)Where a person is charged with an offence under this section it is a defence that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.

(5)A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(6)The Secretary of State may by regulations—

(a)amend section 91 (purchase of tobacco etc on behalf of persons under 18) so as to apply it (with or without modifications) in relation to nicotine products, or

(b)provide for that section to apply (with or without modifications) in relation to nicotine products.

(7)Regulations under this section may make provision in relation to—

(a)all nicotine products,

(b)nicotine products of a specified kind, or

(c)nicotine products subject to specified exceptions.

(8)The Secretary of State must obtain the consent of the Welsh Ministers before making regulations under this section which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly.

(9)For the purposes of this section “nicotine product” means—

(a)a device which is intended to enable nicotine to be consumed by an individual or otherwise to be delivered into the human body,

(b)an item which is intended to form part of a device within paragraph (a), or

(c)a substance or item which consists of or contains nicotine and which is intended for human consumption or otherwise to be delivered into the human body.

(10)It does not matter for the purposes of subsection (9)(a) whether the device is also intended to enable any other substance to be consumed by an individual or otherwise to be delivered into the human body.

(11)The following are not nicotine products for the purposes of this section—

(a)tobacco;

(b)cigarette papers;

(c)any device which is intended to be used for the consumption of lit tobacco.

(12)In this section—

Annotations:

Commencement Information

I111S. 92 in force at 1.10.2014 for specified purposes by S.I. 2014/2609, art. 2

I112S. 92 in force at 1.10.2015 in so far as not already in force by S.I. 2015/375, art. 3

93Amendments consequential on section 92E+W

(1)The Children and Young Persons Act 1933 is amended in accordance with subsections (2) to (6).

(2)In the italic heading before section 12A, after “tobacco” insert “ or nicotine products ”.

(3)In section 12A (restricted premises orders)—

(a)in subsection (1), after “tobacco” insert “ or nicotine ”,

(b)in subsection (3), for “or cigarette papers” substitute “ , cigarette papers or nicotine product ”, and

(c)in subsection (7)(a), after “tobacco” insert “ or nicotine ”.

(4)In section 12B (restricted sale orders)—

(a)in subsection (1), after “tobacco” insert “ or nicotine ”,

(b)in subsection (3)—

(i)in paragraph (a), for “or cigarette papers” substitute “ , cigarette papers or nicotine product ”,

(ii)in paragraph (b), for “or cigarette papers” substitute “ , cigarette papers or nicotine products ”,

(iii)in each of paragraphs (c) and (d) omit “cigarette” in each place, and

(iv)in each of those paragraphs, after “tobacco” insert “ or nicotine products ”,

(c)in subsection (5), after “tobacco” insert “ or nicotine ”, and

(d)in subsection (6)—

(i)omit “cigarette”, and

(ii)after “tobacco” insert “ or nicotine products ”.

(5)In section 12C(1)(a) (enforcement), for “or cigarette papers” substitute “ , cigarette papers or nicotine product ”.

(6)In section 12D (interpretation)—

(a)in subsection (1), in the opening words, for “ “tobacco offence”” substitute “ “tobacco or nicotine offence” ”,

(b)in that subsection omit the “or” at the end of paragraph (b) and at the end of paragraph (c) insert , or

(d)an offence committed under section 92 of the Children and Families Act 2014 on any premises (which are accordingly “the premises in relation to which the offence is committed”)., and

(c)after subsection (2) insert—

(2A)In sections 12A to 12C “nicotine product” means a nicotine product within the meaning of section 92 of the Children and Families Act 2014 the sale of which to persons aged under 18 is for the time being prohibited by regulations under subsection (1) of that section.

(7)In section 5 of the Children and Young Persons (Protection from Tobacco) Act 1991 (enforcement action by local authorities in England and Wales)—

(a)in subsection (1)(a), for “and sections 3 and 4 above” substitute “ , sections 3 and 4 above and section 92 of the Children and Families Act 2014 (prohibition of sale of nicotine products to persons under 18) ”, and

(b)after subsection (1) insert—

(1A)Subsection (1) applies in relation to section 92 of the Children and Families Act 2014 only if regulations under subsection (1) of that section are for the time being in force.

(8)The Secretary of State may by regulations make provision amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made) in connection with provision made by or under section 92.

(9)In subsection (8) “enactment” includes a Measure or Act of the National Assembly for Wales.

Annotations:

Commencement Information

I113S. 93 in force at 1.10.2014 for specified purposes by S.I. 2014/2609, art. 2

I114S. 93 in force at 1.10.2015 in so far as not already in force by S.I. 2015/375, art. 3

94Regulation of retail packaging etc of tobacco productsE+W+S+N.I.

(1)The Secretary of State may make regulations under subsection (6) or (8) if the Secretary of State considers that the regulations may contribute at any time to reducing the risk of harm to, or promoting, the health or welfare of people under the age of 18.

(2)Subsection (1) does not prevent the Secretary of State, in making regulations under subsection (6) or (8), from considering whether the regulations may contribute at any time to reducing the risk of harm to, or promoting, the health or welfare of people aged 18 or over.

(3)The Secretary of State may treat regulations under subsection (6) or (8) as capable of contributing to reducing the risk of harm to, or promoting, the health or welfare of people under the age of 18 if the Secretary of State considers that—

(a)at least some of the provisions of the regulations are capable of having that effect, or

(b)the regulations are capable of having that effect when taken together with other regulations that were previously made under subsection (6) or (8) and are in force.

(4)Regulations under subsection (6) or (8) are to be treated for the purposes of subsection (1) or (2) as capable of contributing to reducing the risk of harm to, or promoting, people's health or welfare if (for example) they may contribute to any of the following—

(a)discouraging people from starting to use tobacco products;

(b)encouraging people to give up using tobacco products;

(c)helping people who have given up, or are trying to give up, using tobacco products not to start using them again;

(d)reducing the appeal or attractiveness of tobacco products;

(e)reducing the potential for elements of the packaging of tobacco products other than health warnings to detract from the effectiveness of those warnings;

(f)reducing opportunities for the packaging of tobacco products to mislead consumers about the effects of using them;

(g)reducing opportunities for the packaging of tobacco products to create false perceptions about the nature of such products;

(h)having an effect on attitudes, beliefs, intentions and behaviours relating to the reduction in use of tobacco products.

(5)Regulations under subsection (6) or (8) are to be treated for the purposes of subsection (1) as capable of contributing to reducing the risk of harm to, or promoting, the health or welfare of people under the age of 18 if—

(a)they may contribute to reducing activities by such people which risk harming their health or welfare after they reach the age of 18, or

(b)they may benefit such people by reducing the use of tobacco products among people aged 18 or over.

(6)The Secretary of State may by regulations make provision about the retail packaging of tobacco products.

(7)Regulations under subsection (6) may in particular impose prohibitions, requirements or limitations relating to—

(a)the markings on the retail packaging of tobacco products (including the use of branding, trademarks or logos);

(b)the appearance of such packaging;

(c)the materials used for such packaging;

(d)the texture of such packaging;

(e)the size of such packaging;

(f)the shape of such packaging;

(g)the means by which such packaging is opened;

(h)any other features of the retail packaging of tobacco products which could be used to distinguish between different brands of tobacco product;

(i)the number of individual tobacco products contained in an individual packet;

(j)the quantity of a tobacco product contained in an individual packet.

(8)The Secretary of State may by regulations make provision imposing prohibitions, requirements or limitations relating to—

(a)the markings on tobacco products (including the use of branding, trademarks or logos);

(b)the appearance of such products;

(c)the size of such products;

(d)the shape of such products;

(e)the flavour of such products;

(f)any other features of tobacco products which could be used to distinguish between different brands of tobacco product.

(9)The Secretary of State may by regulations—

(a)create offences which may be committed by persons who produce or supply tobacco products the retail packaging of which breaches prohibitions, requirements or limitations imposed by regulations under subsection (6);

(b)create offences which may be committed by persons who produce or supply tobacco products which breach prohibitions, requirements or limitations imposed by regulations under subsection (8);

(c)provide for exceptions and defences to such offences;

(d)make provision about the liability of others to be convicted of such offences if committed by a body corporate or a Scottish partnership.

(10)The Secretary of State may by regulations—

(a)provide that regulations under subsection (6) or (8) are to be treated for the purposes specified in regulations under this subsection as safety regulations within the meaning of the Consumer Protection Act 1987;

(b)make provision for the appropriate minister to direct, in relation to cases of a particular description or a particular case, that any duty imposed on a local weights and measures authority in Great Britain or a district council in Northern Ireland by virtue of provision under paragraph (a) is to be discharged instead by the appropriate minister.

(11)The Secretary of State may by regulations make provision amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made) in connection with provision made by regulations under any of subsections (6), (8), (9) or (10).

(12)The Secretary of State must—

(a)obtain the consent of the Scottish Ministers before making regulations under any of subsections (6), (8), (9) or (10) containing provision which would (if contained in an Act of the Scottish Parliament) be within the legislative competence of that Parliament;

(b)obtain the consent of the Welsh Ministers before making regulations under any of those subsections containing provision which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly;

(c)obtain the consent of the Office of the First Minister and deputy First Minister in Northern Ireland before making regulations under any of those subsections containing provision which would (if contained in an Act of the Northern Ireland Assembly) be within the legislative competence of that Assembly.

(13)For the purposes of this section a person produces a tobacco product if, in the course of a business and with a view to the product being supplied for consumption in the United Kingdom or through the travel retail sector, the person—

(a)manufactures the product,

(b)puts a name, trademark or other distinguishing mark on it by which the person is held out to be its manufacturer or originator, or

(c)imports it into the United Kingdom.

(14)For the purposes of this section a person supplies a tobacco product if in the course of a business the person—

(a)supplies the product,

(b)offers or agrees to supply it, or

(c)exposes or possesses it for supply.

(15)In this section—

Annotations:

Commencement Information

I115S. 94 in force at 1.10.2014 for specified purposes by S.I. 2014/2609, art. 2

I116S. 94 in force at 1.10.2015 in so far as not already in force by S.I. 2015/375, art. 3

95Smoking in a private vehicleE+W

(1)The Health Act 2006 is amended as follows.

(2)In section 5 (smoke-free vehicles)—

(a)after subsection (1) insert—

(1A)Regulations under this section may in particular provide for a private vehicle to be smoke-free where a person under the age of 18 is present in the vehicle., and

(b)in subsection (2), for “The regulations” substitute “ Regulations under this section ”.

(3)In section 9 (fixed penalties), after subsection (1) insert—

(1A)The appropriate national authority may by regulations provide that, in the circumstances specified in the regulations, an authorised officer of an enforcement authority (see section 10) who has reason to believe that a person has committed an offence under section 8(4) in relation to a vehicle in relation to which the authorised officer has functions may give the person a penalty notice in respect of the offence.

(4)In section 10(1) (power to designate bodies or descriptions of body as enforcement authorities)—

(a)after “designating the” insert “ persons or ”, and

(b)after “descriptions of” insert “ person or ”.

(5)In section 79 (orders and regulations)—

(a)in subsection (4) (powers to which affirmative procedure applies), in paragraph (a) (powers in Part 1), for “or 8(7)” substitute “ , 8(7) or 9(1A) ”,

(b)in that subsection, in paragraph (f) (powers in Schedule 1), for “or 8” substitute “ , 8 or 17 ”, and

(c)after that subsection insert—

(4A)No statutory instrument containing regulations under section 9(1A) or paragraph 17 of Schedule 1 may be made by the Welsh Ministers unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.

(6)In Schedule 1 (fixed penalties), after paragraph 16 insert—

Power to amend or modify Schedule

17The appropriate national authority may by regulations—

(a)amend this Schedule so as to modify its application in relation to penalty notices issued by an authorised officer of an enforcement authority of a particular kind, or

(b)provide for this Schedule to apply with modifications in relation to such notices.

Annotations:

Commencement Information

I117S. 95 in force at 1.10.2014 for specified purposes by S.I. 2014/2609, art. 2

I118S. 95 in force at 1.10.2015 in so far as not already in force by S.I. 2015/375, art. 3

Young carers and parent carersE+W

96Young carersE+W

(1)In the Children Act 1989, after section 17 insert—

17ZAYoung carers' needs assessments: England

(1)A local authority in England must assess whether a young carer within their area has needs for support and, if so, what those needs are, if—

(a)it appears to the authority that the young carer may have needs for support, or

(b)the authority receive a request from the young carer or a parent of the young carer to assess the young carer's needs for support.

(2)An assessment under subsection (1) is referred to in this Part as a “young carer's needs assessment”.

(3)In this Part “young carer” means a person under 18 who provides or intends to provide care for another person (but this is qualified by section 17ZB(3)).

(4)Subsection (1) does not apply in relation to a young carer if the local authority have previously carried out a care-related assessment of the young carer in relation to the same person cared for.

(5)But subsection (1) does apply (and so a young carer's needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the young carer or the person cared for have changed since the last care-related assessment.

(6)Care-related assessment” means—

(a)a young carer's needs assessment;

(b)an assessment under any of the following—

(i)section 1 of the Carers (Recognition and Services) Act 1995;

(ii)section 1 of the Carers and Disabled Children Act 2000;

(iii)section 4(3) of the Community Care (Delayed Discharges) Act 2003.

(7)A young carer's needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer's needs for support, other needs and wishes.

(8)A local authority, in carrying out a young carer's needs assessment, must have regard to—

(a)the extent to which the young carer is participating in or wishes to participate in education, training or recreation, and

(b)the extent to which the young carer works or wishes to work.

(9)A local authority, in carrying out a young carer's needs assessment, must involve—

(a)the young carer,

(b)the young carer's parents, and

(c)any person who the young carer or a parent of the young carer requests the authority to involve.

(10)A local authority that have carried out a young carer's needs assessment must give a written record of the assessment to—

(a)the young carer,

(b)the young carer's parents, and

(c)any person to whom the young carer or a parent of the young carer requests the authority to give a copy.

(11)Where the person cared for is under 18, the written record must state whether the local authority consider him or her to be a child in need.

(12)A local authority in England must take reasonable steps to identify the extent to which there are young carers within their area who have needs for support.

17ZBYoung carers' needs assessments: supplementary

(1)This section applies for the purposes of section 17ZA.

(2)Parent”, in relation to a young carer, includes—

(a)a parent of the young carer who does not have parental responsibility for the young carer, and

(b)a person who is not a parent of the young carer but who has parental responsibility for the young carer.

(3)A person is not a young carer if the person provides or intends to provide care—

(a)under or by virtue of a contract, or

(b)as voluntary work.

(4)But in a case where the local authority consider that the relationship between the person cared for and the person under 18 providing or intending to provide care is such that it would be appropriate for the person under 18 to be regarded as a young carer, that person is to be regarded as such (and subsection (3) is therefore to be ignored in that case).

(5)The references in section 17ZA and this section to providing care include a reference to providing practical or emotional support.

(6)Where a local authority—

(a)are required to carry out a young carer's needs assessment, and

(b)are required or have decided to carry out some other assessment of the young carer or of the person cared for;

the local authority may, subject to subsection (7), combine the assessments.

(7)A young carer's needs assessment may be combined with an assessment of the person cared for only if the young carer and the person cared for agree.

(8)The Secretary of State may by regulations make further provision about carrying out a young carer's needs assessment; the regulations may, in particular—

(a)specify matters to which a local authority is to have regard in carrying out a young carer's needs assessment;

(b)specify matters which a local authority is to determine in carrying out a young carer's needs assessment;

(c)make provision about the manner in which a young carer's needs assessment is to be carried out;

(d)make provision about the form a young carer's needs assessment is to take.

(9)The Secretary of State may by regulations amend the list in section 17ZA(6)(b) so as to—

(a)add an entry,

(b)remove an entry, or

(c)vary an entry.

17ZCConsideration of young carers' needs assessments

A local authority that carry out a young carer's needs assessment must consider the assessment and decide—

(a)whether the young carer has needs for support in relation to the care which he or she provides or intends to provide;

(b)if so, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and

(c)if they could be so satisfied, whether or not to provide any such services in relation to the young carer.

(2)In section 104 of the Children Act 1989 (regulations and orders)—

(a)in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) before “(3B)” insert “ (3AA), ”, and

(b)after subsection (3A) insert—

(3AA)Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZB(9).

Annotations:

Commencement Information

I119S. 96 in force at 1.4.2015 by S.I. 2015/375, art. 2(c)

97Parent carersE+W

(1)In the Children Act 1989, after section 17ZC (as inserted by section 96) insert—

17ZDParent carers' needs assessments: England

(1)A local authority in England must, if the conditions in subsections (3) and (4) are met, assess whether a parent carer within their area has needs for support and, if so, what those needs are.

(2)In this Part “parent carer” means a person aged 18 or over who provides or intends to provide care for a disabled child for whom the person has parental responsibility.

(3)The first condition is that—

(a)it appears to the authority that the parent carer may have needs for support, or

(b)the authority receive a request from the parent carer to assess the parent carer's needs for support.

(4)The second condition is that the local authority are satisfied that the disabled child cared for and the disabled child's family are persons for whom they may provide or arrange for the provision of services under section 17.

(5)An assessment under subsection (1) is referred to in this Part as a “parent carer's needs assessment”.

(6)Subsection (1) does not apply in relation to a parent carer if the local authority have previously carried out a care-related assessment of the parent carer in relation to the same disabled child cared for.

(7)But subsection (1) does apply (and so a parent carer's needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the parent carer or the disabled child cared for have changed since the last care-related assessment.

(8)Care-related assessment” means—

(a)a parent carer's needs assessment;

(b)an assessment under any of the following—

(i)section 1 of the Carers (Recognition and Services) Act 1995;

(ii)section 6 of the Carers and Disabled Children Act 2000;

(iii)section 4(3) of the Community Care (Delayed Discharges) Act 2003.

(9)A parent carer's needs assessment must include an assessment of whether it is appropriate for the parent carer to provide, or continue to provide, care for the disabled child, in the light of the parent carer's needs for support, other needs and wishes.

(10)A local authority in carrying out a parent carer's needs assessment must have regard to—

(a)the well-being of the parent carer, and

(b)the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility.

(11)In subsection (10) “well-being” has the same meaning as in Part 1 of the Care Act 2014.

(12)A local authority, in carrying out a parent carer's needs assessment, must involve—

(a)the parent carer,

(b)any child for whom the parent carer has parental responsibility, and

(c)any person who the parent carer requests the authority to involve.

(13)A local authority that have carried out a parent carer's needs assessment must give a written record of the assessment to—

(a)the parent carer, and

(b)any person to whom the parent carer requests the authority to give a copy.

(14)A local authority in England must take reasonable steps to identify the extent to which there are parent carers within their area who have needs for support.

17ZEParent carers' needs assessments: supplementary

(1)This section applies for the purposes of section 17ZD.

(2)The references in section 17ZD to providing care include a reference to providing practical or emotional support.

(3)Where a local authority—

(a)are required to carry out a parent carer's needs assessment, and

(b)are required or have decided to carry out some other assessment of the parent carer or of the disabled child cared for,

the local authority may combine the assessments.

(4)The Secretary of State may by regulations make further provision about carrying out a parent carer's needs assessment; the regulations may, in particular—

(a)specify matters to which a local authority is to have regard in carrying out a parent carer's needs assessment;

(b)specify matters which a local authority is to determine in carrying out a parent carer's needs assessment;

(c)make provision about the manner in which a parent carer's needs assessment is to be carried out;

(d)make provision about the form a parent carer's needs assessment is to take.

(5)The Secretary of State may by regulations amend the list in section 17ZD(8)(b) so as to—

(a)add an entry,

(b)remove an entry, or

(c)vary an entry.

17ZFConsideration of parent carers' needs assessments

A local authority that carry out a parent carer's needs assessment must consider the assessment and decide—

(a)whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;

(b)whether the disabled child cared for has needs for support;

(c)if paragraph (a) or (b) applies, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and

(d)if they could be so satisfied, whether or not to provide any such services in relation to the parent carer or the disabled child cared for.

(2)In section 104 of the Children Act 1989 (regulations and orders)—

(a)in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) after “(3AA),” insert “ (3AB), ”, and

(b)after subsection (3AA) insert—

(3AB)Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZE(5).

Annotations:

Commencement Information

I120S. 97 in force at 1.4.2015 by S.I. 2015/375, art. 2(c)

Staying put arrangementsE+W

98Arrangements for living with former foster parents after reaching adulthoodE+W

(1)The Children Act 1989 is amended as follows.

(2)After section 23C (continuing functions in respect of former relevant children) insert—

23CZAArrangements for certain former relevant children to continue to live with former foster parents

(1)Each local authority in England have the duties provided for in subsection (3) in relation to a staying put arrangement.

(2)A “staying put arrangement” is an arrangement under which—

(a)a person who is a former relevant child by virtue of section 23C(1)(b), and

(b)a person (a “former foster parent”) who was the former relevant child's local authority foster parent immediately before the former relevant child ceased to be looked after by the local authority,

continue to live together after the former relevant child has ceased to be looked after.

(3)It is the duty of the local authority (in discharging the duties in section 23C(3) and by other means)—

(a)to monitor the staying put arrangement, and

(b)to provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement.

(4)Support provided to the former foster parent under subsection (3)(b) must include financial support.

(5)Subsection (3)(b) does not apply if the local authority consider that the staying put arrangement is not consistent with the welfare of the former relevant child.

(6)The duties set out in subsection (3) subsist until the former relevant child reaches the age of 21.

(3)In Part 2 of Schedule 2 (local authority support for looked after children) after paragraph 19B (preparation for ceasing to be looked after) insert—

Preparation for ceasing to be looked after: staying put arrangements

19BA(1)This paragraph applies in relation to an eligible child (within the meaning of paragraph 19B) who has been placed by a local authority in England with a local authority foster parent.

(2)When carrying out the assessment of the child's needs in accordance with paragraph 19B(4), the local authority must determine whether it would be appropriate to provide advice, assistance and support under this Act in order to facilitate a staying put arrangement, and with a view to maintaining such an arrangement, after the local authority cease to look after him or her.

(3)The local authority must provide advice, assistance and support under this Act in order to facilitate a staying put arrangement if—

(a)the local authority determine under sub-paragraph (2) that it would be appropriate to do so, and

(b)the eligible child and the local authority foster parent wish to make a staying put arrangement.

(4)In this paragraph, “staying put arrangement” has the meaning given by section 23CZA.

Annotations:

Commencement Information

I121S. 98 in force at 13.5.2014 by S.I. 2014/889, art. 5(e)

Educational achievement of looked after childrenE+W

99Promotion of educational achievement of children looked after by local authoritiesE+W

In the Children Act 1989, in section 22 after subsection (3A) (duty of local authorities to promote the educational achievement of looked after children) insert—

(3B)A local authority in England must appoint at least one person for the purpose of discharging the duty imposed by virtue of subsection (3A).

(3C)A person appointed by a local authority under subsection (3B) must be an officer employed by that authority or another local authority in England.

Annotations:

Commencement Information

I122S. 99 in force at 13.5.2014 by S.I. 2014/889, art. 5(e)

Pupils with medical conditionsE+W

100Duty to support pupils with medical conditionsE+W

(1)The appropriate authority for a school to which this section applies must make arrangements for supporting pupils at the school with medical conditions.

(2)In meeting the duty in subsection (1) the appropriate authority must have regard to guidance issued by the Secretary of State.

(3)The duty in subsection (1) does not apply in relation to a pupil who is a young child for the purposes of Part 3 of the Childcare Act 2006 (regulation of provision of childcare in England).

(4)This section applies to the following schools in England—

(a)a maintained school;

(b)an Academy school;

(c)an alternative provision Academy;

(d)a pupil referral unit.

(5)In this section—

(6)The Education Act 1996 and this section are to be read as if this section were included in that Act.

Annotations:

Commencement Information

I123S. 100 in force at 1.9.2014 by S.I. 2014/889, art. 7(c)

Local authority functions: interventionE+W

101Local authority functions relating to children etc: interventionE+W

(1)Section 497A of the Education Act 1996 (which confers power on the Secretary of State to secure the proper performance of local authority education functions, and is applied to social services functions relating to children by section 50 of the Children Act 2004 and to functions relating to childcare by section 15 of the Childcare Act 2006) is amended in accordance with subsection (2).

(2)After subsection (4A) insert—

(4AA)So far as is appropriate in consequence of a direction given under subsection (4A), a reference (however expressed) in an enactment, instrument or other document to a local authority is to be read as a reference to the person by whom the function is exercisable.

(4AB)Subsection (4AC) applies if a direction given under subsection (4A) expires or is revoked without being replaced.

(4AC)So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the local authority to which the direction was given.

(3)In section 15 of the Local Government Act 1999 (Secretary of State's power to secure compliance with requirements of Part 1 of that Act) after subsection (6) insert—

(6A)So far as is appropriate in consequence of a direction given under subsection (6)(a), a reference (however expressed) in an enactment, instrument or other document to a best value authority is to be read as a reference to the person by whom the function is exercisable.

(6B)Subsection (6C) applies if a direction given under subsection (6)(a) expires or is revoked without being replaced.

(6C)So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the best value authority to which the direction was given.

Regulation of children's homes etcE+W

102Application of suspension etc powers to establishments and agencies in EnglandE+W

(1)In section 14A of the Care Standards Act 2000 (power of Welsh Ministers to suspend registration of person in respect of establishment or agency), in subsection (1)—

(a)for “Welsh Ministers” substitute “ registration authority ”, and

(b)omit “for which the Welsh Ministers are the registration authority”.

(2)In subsection (2) of that section, for “Welsh Ministers give” substitute “ registration authority gives ”.

(3)In section 15(4A) of that Act (duty of Welsh Ministers to give notice of decision to grant application for cancellation or variation of suspension)—

(a)for “Welsh Ministers decide” substitute “ registration authority decides ”,

(b)for “they” substitute “ it ”, and

(c)for “their” substitute “ its ”.

(4)In section 20B of that Act (urgent procedure for suspension or variation etc: Wales), in the heading omit “: Wales”.

(5)In subsection (1) of that section—

(a)in paragraph (a) omit “for which the Welsh Ministers are the registration authority”, and

(b)in paragraph (b)—

(i)for “Welsh Ministers have” substitute “ registration authority has ”, and

(ii)for “they act” substitute “ it acts ”.

(6)In subsection (2) of that section, for “Welsh Ministers” in both places substitute “ registration authority ”.

(7)In subsection (4)(b) of that section, for “Welsh Ministers'” substitute “registration authority's”.

103Objectives and standards for establishments and agencies in EnglandE+W

(1)In section 22 of the Care Standards Act 2000 (regulation of establishments and agencies), in subsection (1), for the words from “may in particular” to the end substitute

(a)regulations made by the Secretary of State may in particular make any provision such as is mentioned in subsection (1A), (2), (7) or (8), and

(b)regulations made by the Welsh Ministers may in particular make any provision such as is mentioned in subsection (2), (7) or (8).

(2)In that section, after subsection (1) insert—

(1A)Regulations made by the Secretary of State may prescribe objectives and standards which must be met in relation to an establishment or agency for which the CIECSS is the registration authority.

104National minimum standards for establishments and agencies in EnglandE+W

In section 23 of the Care Standards Act 2000 (national minimum standards), after subsection (1) insert—

(1A)The standards applicable to an establishment or agency for which the CIECSS is the registration authority may, in particular, explain or supplement requirements imposed in relation to that establishment or agency by regulations under section 22.

105Disqualification from carrying on, or being employed in, a children's homeE+W

(1)Section 65 of the Children Act 1989 (person disqualified from fostering a child privately to be disqualified from carrying on etc children's home) is amended as follows.

(2)Before subsection (1) insert—

(A1)A person (“P”) who is disqualified (under section 68) from fostering a child privately must not carry on, or be otherwise concerned in the management of, or have any financial interest in, a children's home in England unless—

(a)P has, within the period of 28 days beginning with the day on which P became aware of P's disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and

(b)P has obtained the appropriate authority's written consent.

(A2)A person (“E”) must not employ a person (“P”) who is so disqualified in a children's home in England unless—

(a)E has, within the period of 28 days beginning with the day on which E became aware of P's disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and

(b)E has obtained the appropriate authority's written consent.

(3)In subsection (1), after “children's home” insert “ in Wales ”.

(4)In subsection (2), after “children's home” insert “ in Wales ”.

(5)In subsection (4), after “subsection” insert “ (A1), (A2), ”.

(6)In subsection (5), after “subsection” insert “ (A2) or ”.

Annotations:

Commencement Information

I124S. 105 in force at 1.4.2015 by S.I. 2015/375, art. 2(d)

Free school lunchesE+W

106Provision of free school lunchesE+W

(1)The Education Act 1996 is amended as follows.

(2)In section 512ZB (provision of free school lunches and milk at maintained schools)—

(a)in subsection (2)(a) after “subsection (4)” insert “ or (4A) (or both) ”,

(b)after subsection (4) insert—

(4A)A person is within this subsection if the person—

(a)is a registered pupil at a maintained school or pupil referral unit in England, and

(b)is in reception, year 1, year 2 or any other prescribed year group at the school.

(4B)The Secretary of State may by order provide for the following to be treated as persons within subsection (4A)—

(a)registered pupils, or any description of registered pupils, at a maintained nursery school in England;

(b)children, or any description of children, who receive relevant funded early years education, or any description of such education, in England.

(4C)In subsection (4A)—

(c)in subsection (5), after “ “prescribed”” insert “ , “relevant funded early years education” ”.

(3)After section 512A insert—

512BProvision of school lunches: Academies

(1)Academy arrangements in relation to an Academy school or an alternative provision Academy must include provision imposing obligations on the proprietor that are equivalent to the school lunches obligations.

(2)“The school lunches obligations” are the obligations imposed in relation to maintained schools and pupil referral units in England by—

(a)section 512(3) (provision of school lunches on request), and

(b)section 512ZB(1) (provision of free school lunches to eligible persons).

(3)Academy arrangements in relation to an Academy (other than a 16 to 19 Academy) that are entered into before the date on which section 106(3) of the Children and Families Act 2014 comes into force are to be treated as if they included the provision required by subsection (1), to the extent that they do not otherwise include such provision.

Annotations:

Commencement Information

I125S. 106 in force at 1.9.2014 by S.I. 2014/889, art. 7(d)

PART 6 E+WThe Children's Commissioner

107Primary function of the Children's CommissionerE+W

For section 2 of the Children Act 2004 (general function of the Children's Commissioner) substitute—

2Primary function: children's rights, views and interests

(1)The Children's Commissioner's primary function is promoting and protecting the rights of children in England.

(2)The primary function includes promoting awareness of the views and interests of children in England.

(3)In the discharge of the primary function the Children's Commissioner may, in particular—

(a)advise persons exercising functions or engaged in activities affecting children on how to act compatibly with the rights of children;

(b)encourage such persons to take account of the views and interests of children;

(c)advise the Secretary of State on the rights, views and interests of children;

(d)consider the potential effect on the rights of children of government policy proposals and government proposals for legislation;

(e)bring any matter to the attention of either House of Parliament;

(f)investigate the availability and effectiveness of complaints procedures so far as relating to children;

(g)investigate the availability and effectiveness of advocacy services for children;

(h)investigate any other matter relating to the rights or interests of children;

(i)monitor the implementation in England of the United Nations Convention on the Rights of the Child;

(j)publish a report on any matter considered or investigated under this section.

(4)In the discharge of the primary function, the Children's Commissioner must have particular regard to the rights of children who are within section 8A (children living away from home or receiving social care) and other groups of children who the Commissioner considers to be at particular risk of having their rights infringed.

(5)The Children's Commissioner may not conduct an investigation of the case of an individual child in the discharge of the primary function.

2AUnited Nations Convention on the Rights of the Child

(1)The Children's Commissioner must, in particular, have regard to the United Nations Convention on the Rights of the Child in considering for the purposes of the primary function what constitute the rights and interests of children (generally or so far as relating to a particular matter).

(2)The references in section 2(3)(i) and this section to the United Nations Convention on the Rights of the Child are to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989 (including any Protocols to that Convention which are in force in relation to the United Kingdom), subject to any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.

2BInvolving children in the discharge of the primary function

(1)The Children's Commissioner must take reasonable steps to involve children in the discharge of the primary function.

(2)The Commissioner must in particular take reasonable steps to—

(a)ensure that children are aware of the Commissioner's primary function and how they may communicate with him or her, and

(b)consult children, and organisations working with children, on the matters the Commissioner proposes to consider or investigate in the discharge of the primary function.

(3)The Children's Commissioner must for the purposes of this section have particular regard to children who are within section 8A (children living away from home or receiving social care) and other groups of children who the Commissioner considers do not have adequate means by which they can make their views known.

2CPrimary function: reports

(1)This section applies where the Children's Commissioner publishes a report in the discharge of the primary function.

(2)The Commissioner must, if and to the extent he or she considers it appropriate, also publish the report in a version which is suitable for children (or, if the report relates to a particular group of children, for those children).

(3)Where the report contains recommendations about the exercise by a person of functions of a public nature, the Commissioner may require that person to state in writing, within such period as the Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations.

108Provision by Commissioner of advice and assistance to certain childrenE+W

After section 2C of the Children Act 2004 (as inserted by section 107) insert—

2DProvision of advice and assistance to certain children in England

(1)The Children's Commissioner may provide advice and assistance to any child who is within section 8A (children living away from home or receiving social care).

(2)The Children's Commissioner may in particular under this section make representations on behalf of a child who is within section 8A to a person in England who is—

(a)providing the child with accommodation or services, or

(b)otherwise exercising functions in relation to the child.

109Commissioner's powers to enter premisesE+W

After section 2D of the Children Act 2004 (as inserted by section 108) insert—

2EPowers to enter premises to conduct interviews or observe standards

(1)This section applies for the purposes of the Children's Commissioner's primary function and the function under section 2D.

(2)The Children's Commissioner, or a person authorised by the Commissioner, may at any reasonable time enter any premises, other than a private dwelling—

(a)for the purpose of interviewing a child, or

(b)for the purpose of observing the standard of care provided to children accommodated or otherwise cared for there.

(3)An interview of a child under subsection (2)(a) may be conducted in private, if the child consents.

(4)A person who enters premises under subsection (1) may interview any person present on the premises who works there.

(5)It is immaterial for the purposes of subsection (4) whether a person's work is paid, or under a contract of employment.

110Provision of information to CommissionerE+W

After section 2E of the Children Act 2004 (as inserted by section 109) insert—

2FProvision of information to Commissioner

(1)Any person exercising functions of a public nature must supply the Children's Commissioner with such information in that person's possession relating to those functions as the Commissioner may reasonably request for the purposes of the primary function or the function under section 2D.

(2)The information must be information which that person would, apart from subsection (1), lawfully be able to disclose to the Commissioner.

111Advisory boardE+W

After section 7 of the Children Act 2004 insert—

7AAdvisory board

(1)The Children's Commissioner must appoint an advisory board to provide the Commissioner with advice and assistance relating to the discharge of his or her functions.

(2)The advisory board must consist of persons who (taken together) represent a broad range of interests which are relevant to the Children's Commissioner's functions.

(3)The Children's Commissioner must from time to time publish a report on the procedure followed and the criteria used when making appointments to the advisory board.

112Business plansE+W

After section 7A of the Children Act 2004 (as inserted by section 111) insert—

7BBusiness plans

(1)The Children's Commissioner must publish a business plan which sets out, in relation to the discharge of the Commissioner's functions—

(a)the Commissioner's proposed main activities for the period covered by the plan (including the matters he or she intends to consider or investigate), and

(b)the Commissioner's proposed strategic priorities for that period.

(2)A business plan must cover a period of at least 12 months beginning with the date of publication.

(3)The Commissioner must publish a new business plan before the end of the period covered by the preceding business plan.

(4)Before publishing a business plan under this section, the Children's Commissioner must—

(a)take reasonable steps to consult children,

(b)consult persons who (taken together) represent a broad range of interests which are relevant to the Children's Commissioner's functions, and

(c)consult such other persons as the Commissioner thinks appropriate.

(5)The Children's Commissioner must for the purposes of subsection (4)(a) have particular regard to children who are within section 8A (children living away from home or receiving social care) and other groups of children who the Commissioner considers do not have adequate means by which they can make their views known.

113Annual reportsE+W

(1)Section 8 of the Children Act 2004 (annual reports) is amended as follows.

(2)In subsection (1)—

(a)in paragraph (a) omit “under this Part, other than functions of holding inquiries”,

(b)after paragraph (a) insert “ and ”, and

(c)omit paragraph (c) and the “and” which precedes it.

(3)In subsection (2) for the words from “an account” to the end substitute

(a)a summary of the Commissioner's activities and an analysis of the effectiveness of those activities in promoting and protecting the rights of children,

(b)an account of what the Commissioner has done in the discharge of his or her functions in relation to children who are within section 8A (children living away from home or receiving social care),

(c)an account of the steps taken by the Commissioner to consult children or otherwise involve them in the discharge of his or her functions, and

(d)a summary of how the Commissioner has taken into account the results of any such consultation and anything else resulting from involving children in the discharge of his or her functions.

(4)In subsection (3)(b) for “the Secretary of State” substitute “ the Commissioner ”.

(5)In subsection (4) for “the Secretary of State has laid” substitute “ laying ”.

(6)For subsection (5) substitute—

(5)If the Children's Commissioner does not consider a report made under this section to be suitable for children, the Commissioner must publish a version of the report which is suitable for children.

114Children living away from home or receiving social careE+W

After section 8 of the Children Act 2004 insert—

8AChildren in England living away from home or receiving social care

(1)For the purposes of this Part, a child is within this section if he or she is within any of subsections (2) to (5).

(2)A child is within this subsection if he or she is provided with accommodation by a school or college in England to which section 87(1) of the Children Act 1989 applies.

(3)A child is within this subsection if he or she is accommodated in an establishment (within the meaning of the Care Standards Act 2000) in respect of which Her Majesty's Chief Inspector of Education, Children's Services and Skills is the registration authority under section 5 of that Act.

(4)A child is within this subsection if functions are being exercised in relation to him or her by an agency (within the meaning of the Care Standards Act 2000) in respect of which Her Majesty's Chief Inspector of Education, Children's Services and Skills is the registration authority under section 5 of that Act.

(5)A child is within this subsection if a local authority in England exercises social services functions (within the meaning of the Local Authority Social Services Act 1970) in relation to him or her.

(6)For the purposes of this Part, a person who is not a child is to be treated as a child who is within this section if—

(a)he or she is aged 18 or over and under 25, and

(b)a local authority in England has provided services to him or her under any of sections 23C to 24D of the Children Act 1989 at any time after he or she reached the age of 16.

115Children's Commissioner: minor and consequential amendmentsE+W

Schedule 5 (minor and consequential amendments to Part 1 of the Children Act 2004 and to other Acts) has effect.

116Repeal of requirement to appoint Children's Rights DirectorE+W

(1)Section 120 of the Education and Inspections Act 2006 (requirement to appoint Children's Rights Director) is repealed.

(2)In that Act—

(a)in section 117 (performance of functions of the Office for Standards in Education, Children's Services and Skills), in subsection (2) after paragraph (a) insert—

(aa)any matters raised by the Children's Commissioner with the Office or the Chief Inspector;, and

(b)in section 119 (performance of the functions of the Chief Inspector of Education, Children's Services and Skills), in subsection (3) after paragraph (a) (and before the “and” which follows it) insert—

(aa)any matters raised by the Children's Commissioner with the Chief Inspector;.

(3)Schedule 6 (transfers of staff and property in consequence of the repeal of the requirement to appoint a Children's Rights Director) has effect.

PART 7 E+W+S+N.I.Statutory rights to leave and pay

Shared parental leaveE+W

117Shared parental leaveE+W

(1)In Part 8 of the Employment Rights Act 1996, after section 75D there is inserted—

CHAPTER 1BE+WShared parental leave
75EEntitlement to shared parental leave: birth

(1)The Secretary of State may make regulations entitling an employee who satisfies specified conditions—

(a)as to duration of employment,

(b)as to being, or expecting to be, the mother of a child,

(c)as to caring or intending to care, with another person (“P”), for the child,

(d)as to entitlement to maternity leave,

(e)as to the exercise of that entitlement and the extent of any such exercise,

(f)as to giving notice of an intention to exercise an entitlement to leave under this subsection, and

(g)as to the consent of P to the amount of leave under this subsection that the employee intends to take,

to be absent from work on leave under this subsection for the purpose of caring for the child.

(2)Regulations under subsection (1) may provide that the employee's entitlement is subject to the satisfaction by P of specified conditions—

(a)as to employment or self-employment,

(b)as to having earnings of a specified amount for a specified period,

(c)as to caring or intending to care, with the employee, for the child, and

(d)as to relationship with the child or the employee.

(3)Provision under subsection (1)(f) may require the employee to give notice to the employer about—

(a)the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of P to exercise an entitlement to leave under subsection (4) or to statutory shared parental pay);

(b)how much of the entitlement to leave the employee intends to exercise;

(c)the extent to which P intends to exercise an entitlement to leave under subsection (4) or to statutory shared parental pay.

(4)The Secretary of State may make regulations entitling an employee who satisfies specified conditions—

(a)as to duration of employment,

(b)as to relationship with a child or expected child or with the child's mother,

(c)as to caring or intending to care, with the child's mother, for the child,

(d)as to giving notice of an intention to exercise an entitlement to leave under this subsection, and

(e)as to the consent of the child's mother to the amount of leave under this subsection that the employee intends to take,

to be absent from work on leave under this subsection for the purpose of caring for the child.

(5)Regulations under subsection (4) may provide that the employee's entitlement is subject to the satisfaction by the child's mother of specified conditions—

(a)as to employment or self-employment,

(b)as to having earnings of a specified amount for a specified period,

(c)as to caring or intending to care, with the employee, for the child,

(d)as to entitlement (or lack of entitlement) to maternity leave, statutory maternity pay or maternity allowance, and

(e)as to the exercise of any such entitlement and the extent of any such exercise.

(6)Provision under subsection (4)(d) may require the employee to give notice to the employer about—

(a)the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of the child's mother to exercise an entitlement to leave under subsection (1) or to statutory shared parental pay);

(b)how much of the entitlement to leave the employee intends to exercise;

(c)the extent to which the child's mother intends to exercise an entitlement to leave under subsection (1) or to statutory shared parental pay.

75FEntitlement to leave under section 75E: further provision

(1)Regulations under section 75E are to include provision for determining—

(a)the amount of leave under section 75E(1) or (4) to which an employee is entitled in respect of a child;

(b)when leave under section 75E(1) or (4) may be taken.

(2)Provision under subsection (1)(a) is to secure that the amount of leave to which an employee is entitled in respect of a child does not exceed—

(a)in a case where the child's mother became entitled to maternity leave, the relevant amount of time reduced by—

(i)where her maternity leave ends without her ordinary or additional maternity leave period having been curtailed by virtue of section 71(3)(ba) or 73(3)(a), the amount of maternity leave taken by the child's mother, or

(ii)except where sub-paragraph (i) applies, the amount of time between the beginning of her maternity leave and the time when her ordinary or additional maternity leave period, as curtailed by virtue of section 71(3)(ba) or 73(3)(a), comes to an end;

(b)in a case where the child's mother became entitled to statutory maternity pay or maternity allowance but not maternity leave, the relevant amount of time reduced by an amount determined in accordance with paragraph (a) or, as the case may be, paragraph (b) of section 171ZU(6) of the Social Security Contributions and Benefits Act 1992.

(3)In subsection (2) “the relevant amount of time” means an amount of time specified in or determined in accordance with regulations under section 75E.

(4)Provision under subsection (1)(a) is to secure that the amount of leave that an employee is entitled to take in respect of a child takes into account—

(a)in a case where another person is entitled to leave under section 75E in respect of the child, the amount of such leave taken by the other person;

(b)in a case where another person is entitled to statutory shared parental pay in respect of the child but not leave under section 75E, the number of weeks in respect of which such pay is payable to the other person.

(5)In reckoning for the purposes of subsection (2) the amount of maternity leave taken, a part of a week is to be treated as a full week.

(6)In reckoning for the purposes of subsection (4) the amount of leave under section 75E taken during a period of such leave, a part of a week is to be treated as a full week.

(7)Provision under subsection (1)(b) is to secure that leave under section 75E must be taken before the end of such period as may be specified by the regulations.

(8)Regulations under section 75E are to provide for the taking of leave under section 75E in a single period or in non-consecutive periods.

(9)Regulations under section 75E may—

(a)provide for an employer, subject to such restrictions as may be specified, to require an employee who proposes to take non-consecutive periods of leave under section 75E to take that amount of leave as a single period of leave;

(b)provide for a single period of leave that is so imposed on an employee to start with a day proposed by the employee or, if no day is proposed, with the first day of the first period of leave proposed by the employee.

(10)Regulations under section 75E may provide for the variation, subject to such restrictions as may be specified, of—

(a)the period or periods during which an amount of leave under section 75E may be taken;

(b)the amount of leave under section 75E that the employee previously specified in accordance with provision under section 75E(3)(b) or (6)(b) or subsection (13)(b) of this section.

(11)Provision under subsection (10)(a) may provide for variation to be subject to the consent of an employer in circumstances specified by the regulations.

(12)Provision under subsection (10)(b) may require an employee to satisfy specified conditions—

(a)as to giving notice of an intention to vary the amount of leave under section 75E to be taken by the employee;

(b)if the employee proposes to vary the amount of leave under section 75E(1) to be taken by the employee, as to the consent of P to that variation;

(c)if the employee proposes to vary the amount of leave under section 75E(4) to be taken by the employee, as to the consent of the child's mother to that variation.

(13)Provision under subsection (12)(a) may require an employee to give notice to the employer about—

(a)the extent to which the employee has exercised an entitlement to leave under section 75E(1) or (4) in respect of the child;

(b)how much of the entitlement to leave the employee intends to exercise;

(c)the extent to which a person other than the employee has exercised an entitlement to leave under section 75E or to statutory shared parental pay in respect of the child;

(d)the extent to which a person other than the employee intends to exercise such an entitlement.

(14)Regulations under section 75E may—

(a)specify things which are, or are not, to be taken as done for the purpose of caring for a child;

(b)make provision excluding the right to be absent on leave under section 75E in respect of a child where more than one child is born as a result of the same pregnancy;

(c)specify a minimum amount of leave under section 75E which may be taken;

(d)make provision about how leave under section 75E may be taken;

(e)specify circumstances in which an employee may work for the employer during a period of leave under section 75E without bringing the particular period of leave, or the employee's entitlement to leave under section 75E, to an end;

(f)specify circumstances in which an employee may be absent on leave under section 75E otherwise than for the purpose of caring for a child without bringing the person's entitlement to leave under section 75E to an end.

(15)In this section “week” means any period of seven days.

(16)The Secretary of State may by regulations provide that the following do not have effect, or have effect with modifications specified by the regulations, in a case where the mother of a child dies before another person has become entitled to leave under section 75E in respect of the child—

(a)section 75E(4)(b), (c) and (e);

(b)section 75E(5);

(c)section 75E(6)(c);

(d)subsection (12)(c);

(e)subsection (13)(c) and (d).

75GEntitlement to shared parental leave: adoption

(1)The Secretary of State may make regulations entitling an employee who satisfies specified conditions—

(a)as to duration of employment,

(b)as to being a person with whom a child is, or is expected to be, placed for adoption under the law of any part of the United Kingdom,

(c)as to caring or intending to care, with another person (“P”), for the child,

(d)as to entitlement to adoption leave,

(e)as to the exercise of that entitlement and the extent of any such exercise,

(f)as to giving notice of an intention to exercise an entitlement to leave under this subsection, and

(g)as to the consent of P to the amount of leave under this subsection that the employee intends to take,

to be absent from work on leave under this subsection for the purpose of caring for the child.

(2)Regulations under subsection (1) may provide that the employee's entitlement is subject to the satisfaction by P of specified conditions—

(a)as to employment or self-employment,

(b)as to having earnings of a specified amount for a specified period,

(c)as to caring or intending to care, with the employee, for the child, and

(d)as to relationship with the child or the employee.

(3)Provision under subsection (1)(f) may require the employee to give notice to the employer about—

(a)the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of P to exercise an entitlement to leave under subsection (4) or to statutory shared parental pay);

(b)how much of the entitlement to leave the employee intends to exercise;

(c)the extent to which P intends to exercise an entitlement to leave under subsection (4) or to statutory shared parental pay.

(4)The Secretary of State may make regulations entitling an employee who satisfies specified conditions—

(a)as to duration of employment,

(b)as to relationship with a child placed, or expected to be placed, for adoption under the law of any part of the United Kingdom or with a person (“A”) with whom the child is, or is expected to be, so placed,

(c)as to caring or intending to care, with A, for the child,

(d)as to giving notice of an intention to exercise an entitlement to leave under this subsection, and

(e)as to the consent of A to the amount of leave under this subsection that the employee intends to take,

to be absent from work on leave under this subsection for the purpose of caring for the child.

(5)Regulations under subsection (4) may provide that the employee's entitlement is subject to the satisfaction by A of specified conditions—

(a)as to employment or self-employment,

(b)as to having earnings of a specified amount for a specified period,

(c)as to caring or intending to care, with the employee, for the child,

(d)as to entitlement (or lack of entitlement) to adoption leave or statutory adoption pay, and

(e)as to the exercise of any such entitlement and the extent of any such exercise.

(6)Provision under subsection (4)(d) may require the employee to give notice to the employer about—

(a)the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of A to exercise an entitlement to leave under subsection (1) or to statutory shared parental pay);

(b)how much of the entitlement to leave the employee intends to exercise;

(c)the extent to which A intends to exercise an entitlement to leave under subsection (1) or to statutory shared parental pay.

(7)Regulations under subsections (1) and (4) are to provide for leave in respect of a child placed, or expected to be placed, under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter.

(8)This section and section 75H have effect in relation to regulations made by virtue of subsection (7) as if references to a child being placed for adoption under the law of any part of the United Kingdom were references to being placed under section 22C of the Children Act 1989 with a local authority foster parent who has been approved as a prospective adopter.

75HEntitlement to leave under section 75G: further provision

(1)Regulations under section 75G are to include provision for determining—

(a)the amount of leave under section 75G(1) or (4) to which an employee is entitled in respect of a child;

(b)when leave under section 75G(1) or (4) may be taken.

(2)Provision under subsection (1)(a) is to secure that the amount of leave to which an employee is entitled in respect of a child does not exceed—

(a)in a case where a person with whom the child is, or is expected to be, placed for adoption became entitled to adoption leave, the relevant amount of time reduced by—

(i)where the person's adoption leave ends without the person's ordinary or additional adoption leave period having been curtailed by virtue of section 75A(2A)(a) or 75B(3)(a), the amount of adoption leave taken by that person, or

(ii)except where sub-paragraph (i) applies, the amount of time between the beginning of the person's adoption leave and the time when the person's ordinary or additional adoption leave period, as curtailed by virtue of section 75A(2A)(a) or 75B(3)(a), comes to an end;

(b)in a case where a person with whom the child is, or is expected to be, placed for adoption became entitled to statutory adoption pay but not adoption leave, the relevant amount of time reduced by an amount determined in accordance with paragraph (a) or, as the case may be, paragraph (b) of section 171ZV(6) of the Social Security Contributions and Benefits Act 1992.

(3)In subsection (2) “the relevant amount of time” means an amount of time specified in or determined in accordance with regulations under section 75G.

(4)Provision under subsection (1)(a) is to secure that the amount of leave that an employee is entitled to take in respect of a child takes into account—

(a)in a case where another person is entitled to leave under section 75G in respect of the child, the amount of such leave taken by the other person;

(b)in a case where another person is entitled to statutory shared parental pay in respect of the child but not leave under section 75G, the number of weeks in respect of which such pay is payable to the other person.

(5)In reckoning for the purposes of subsection (2) the amount of adoption leave taken, a part of a week is to be treated as a full week.

(6)In reckoning for the purposes of subsection (4) the amount of leave under section 75G taken during a period of such leave, a part of a week is to be treated as a full week.

(7)Provision under subsection (1)(b) is to secure that leave under section 75G must be taken before the end of such period as may be prescribed by the regulations.

(8)Regulations under section 75G are to provide for the taking of leave under section 75G in a single period or in non-consecutive periods.

(9)Regulations under section 75G may—

(a)provide for an employer, subject to such restrictions as may be specified, to require an employee who proposes to take non-consecutive periods of leave under section 75G to take that amount of leave as a single period of leave, and

(b)provide for a single period of leave that is so imposed on an employee to start with a day proposed by the employee or, if no day is proposed, with the first day of the first period of leave proposed by the employee.

(10)Regulations under section 75G may provide for the variation, subject to such restrictions as may be specified, of—

(a)the period or periods during which an amount of leave under section 75G is to be taken;

(b)the amount of leave under section 75G that the employee previously specified in accordance with provision under section 75G(3)(b) or (6)(b) or subsection (13)(b) of this section.

(11)Provision under subsection (10)(a) may provide for variation to be subject to the consent of an employer in circumstances specified by the regulations.

(12)Provision under subsection (10)(b) may require an employee to satisfy specified conditions—

(a)as to giving notice of an intention to vary the amount of leave under section 75G to be taken by the employee;

(b)if the employee proposes to vary the amount of leave under section 75G(1) to be taken by the employee, as to the consent of P to that variation;

(c)if the employee proposes to vary the amount of leave under section 75G(4) to be taken by the employee, as to the consent of A to that variation.

(13)Provision under subsection (12)(a) may require an employee to give notice to the employer about—

(a)the extent to which the employee has exercised an entitlement to leave under section 75G(1) or (4) in respect of the child;

(b)how much of the entitlement to leave the employee intends to exercise;

(c)the extent to which a person other than the employee has exercised an entitlement to leave under section 75G or to statutory shared parental pay in respect of the child;

(d)the extent to which a person other than the employee intends to exercise such an entitlement.

(14)Regulations under section 75G may—

(a)specify things which are, or are not, to be taken as done for the purpose of caring for a child;

(b)make provision excluding the right to be absent on leave under section 75G in respect of a child where more than one child is placed for adoption as part of the same arrangement;

(c)specify a minimum amount of leave under section 75G which may be taken;

(d)make provision about how leave under section 75G may be taken;

(e)specify circumstances in which an employee may work for the employer during a period of leave under section 75G without bringing the particular period of leave, or the employee's entitlement to leave under section 75G, to an end;

(f)specify circumstances in which an employee may be absent on leave under section 75G otherwise than for the purpose of caring for a child without bringing the person's entitlement to leave under section 75G to an end.

(15)In this section “week” means any period of seven days.

(16)The Secretary of State may by regulations provide that the following do not have effect, or have effect with modifications specified by the regulations, in a case where a person who is taking adoption leave or is entitled to be paid statutory adoption pay in respect of a child dies before another person has become entitled to leave under section 75G in respect of the child—

(a)section 75G(4)(b), (c) and (e);

(b)section 75G(5);

(c)section 75G(6)(c);

(d)subsection (12)(c);

(e)subsection (13)(c) and (d).

(17)The Secretary of State may by regulations provide for section 75G and this section to have effect in relation to cases which involve adoption, but not the placement of a child for adoption under the law of any part of the United Kingdom, with such modifications as the regulations may prescribe.

(18)The Secretary of State may by regulations provide for section 75G and this section to have effect in relation to cases which involve an employee who has applied, or intends to apply, with another person for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 and a child who is, or will be, the subject of the order, with such modifications as the regulations may prescribe.

75IRights during and after shared parental leave

(1)Regulations under section 75E or 75G are to provide—

(a)that an employee who is absent on leave under that section is entitled, for such purposes and to such extent as the regulations may prescribe, to the benefit of the terms and conditions of employment which would have applied if the employee had not been absent;

(b)that an employee who is absent on leave under that section is bound, for such purposes and to such extent as the regulations may prescribe, by obligations arising under those terms and conditions, except in so far as they are inconsistent with section 75E(1) or (4) or 75G(1) or (4), as the case may be; and

(c)that an employee who is absent on leave under that section is entitled to return from leave to a job of a kind prescribed by the regulations, subject to section 75J(1).

(2)In subsection (1)(a) “terms and conditions of employment”—

(a)includes matters connected with an employee's employment whether or not they arise under the employee's contract of employment, but

(b)does not include terms and conditions about remuneration.

(3)The reference in subsection (1)(c) to absence on leave under section 75E or 75G includes, where appropriate, a reference to a continuous period of absence attributable partly to leave under one of those sections and partly to any one or more of the following—

(a)leave under the other of those sections,

(b)maternity leave,

(c)paternity leave,

(d)adoption leave, and

(e)parental leave.

(4)Regulations under section 75E or 75G may specify matters which are, or are not, to be treated as remuneration for the purposes of this section.

(5)Regulations under section 75E or 75G may make provision, in relation to the right to return mentioned in subsection (1)(c), about—

(a)seniority, pension rights and similar rights;

(b)terms and conditions of employment on return.

75JRedundancy and dismissal

(1)Regulations under section 75E or 75G may make provision about—

(a)redundancy, or

(b)dismissal (other than by reason of redundancy),

during a period of leave under that section.

(2)Provision made by virtue of subsection (1) may include—

(a)provision requiring an employer to offer alternative employment;

(b)provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part 10).

75KChapter 1B: supplemental

(1)Regulations under section 75E or 75G may—

(a)make provision about notices to be given, evidence to be produced and other procedures to be followed by—

(i)employees,

(ii)employers, and

(iii)relevant persons;

(b)make provision requiring such persons to keep records;

(c)make provision for the consequences of failure to give notices, to produce evidence, to keep records or to comply with other procedural requirements;

(d)make provision for the consequences of failure to act in accordance with a notice given by virtue of paragraph (a);

(e)make special provision for cases where an employee has a right which corresponds to a right under section 75E or 75G and which arises under the employee's contract of employment or otherwise;

(f)make provision modifying the effect of Chapter 2 of Part 14 (calculation of a week's pay) in relation to an employee who is or has been absent from work on leave under section 75E or 75G;

(g)make provision applying, modifying or excluding an enactment, in such circumstances as may be specified and subject to any conditions which may be specified, in relation to a person entitled to take leave under section 75E or 75G.

(2)In subsection (1) “relevant person” means—

(a)a person who, in connection with an employee's claim to be entitled to leave under section 75E or 75G, is required to satisfy conditions specified in provision under section 75E(2) or (5) or 75G(2) or (5), or

(b)a person who is an employer or former employer of such a person.

(3)In subsection (2)(b) “employer”, in relation to a person falling within subsection (2)(a) who is an employed earner, includes a person who is a secondary contributor as regards that employed earner.

(4)The conditions as to employment or self-employment that may be specified in provision under section 75E(2) or (5) or 75G(2) or (5) include conditions as to being in employed or self-employed earner's employment.

(5)In subsections (3) and (4)—

(6)Regulations under any of sections 75E to 75H may make different provision for different cases or circumstances.

(7)Where sections 75G and 75H have effect in relation to such cases as are described in section 75H(18), regulations under section 75G about evidence to be produced may require statutory declarations as to—

(a)eligibility to apply for a parental order;

(b)intention to apply for such an order.

(2)In section 236 of the Employment Rights Act 1996 (orders and regulations), in subsection (3) (affirmative procedure required), after “75A, 75B,” there is inserted “ 75E, 75F(16), 75G, 75H(16), (17) or (18) ”.

Annotations:

Commencement Information

I126S. 117 in force at 30.6.2014 by S.I. 2014/1640, art. 3(1)(a)

118Exclusion or curtailment of other statutory rights to leaveE+W

(1)The Employment Rights Act 1996 is amended as follows.

(2)In section 71 (ordinary maternity leave)—

(a)in subsection (3), after paragraph (b) there is inserted—

(ba)may allow an employee to bring forward the date on which an ordinary maternity leave period ends, subject to prescribed restrictions and subject to satisfying prescribed conditions;

(bb)may allow an employee in prescribed circumstances to revoke, or to be treated as revoking, the bringing forward of that date;;

(b)after subsection (3) there is inserted—

(3A)Provision under subsection (3)(ba) is to secure that an employee may bring forward the date on which an ordinary maternity leave period ends only if the employee or another person has taken, or is taking, prescribed steps as regards leave under section 75E or statutory shared parental pay in respect of the child.

(3)In section 73 (additional maternity leave)—

(a)in subsection (3)(a), for the words from “to choose” to the end there is substituted “ to bring forward the date on which an additional maternity leave period ends, subject to prescribed restrictions and subject to satisfying prescribed conditions; ”;

(b)after subsection (3)(a) there is inserted—

(aa)may allow an employee in prescribed circumstances to revoke, or to be treated as revoking, the bringing forward of that date;;

(c)after subsection (3) there is inserted—

(3A)Provision under subsection (3)(a) is to secure that an employee may bring forward the date on which an additional maternity leave period ends only if the employee or another person has taken, or is taking, prescribed steps as regards leave under section 75E or statutory shared parental pay in respect of the child.

(4)In section 75A (ordinary adoption leave)—

(a)in subsection (2A), after “subsection (2)” there is inserted

(a)may allow an employee to bring forward the date on which an ordinary adoption leave period ends, subject to prescribed restrictions and subject to satisfying prescribed conditions;

(b)may allow an employee in prescribed circumstances to revoke, or to be treated as revoking, the bringing forward of that date;;

(b)in subsection (2A), the words from “may specify circumstances” to the end become paragraph (c);

(c)after subsection (2A) there is inserted—

(2B)Provision under subsection (2A)(a) is to secure that an employee may bring forward the date on which an ordinary adoption leave period ends only if the employee or another person has taken, or is taking, prescribed steps as regards leave under section 75G or statutory shared parental pay in respect of the child.

(5)In section 75B (additional adoption leave)—

(a)in subsection (3)(a), for the words from “to choose” to the end there is substituted “ to bring forward the date on which an additional adoption leave period ends, subject to prescribed restrictions and subject to satisfying prescribed conditions; ”;

(b)after subsection (3)(a) there is inserted—

(aa)may allow an employee in prescribed circumstances to revoke, or to be treated as revoking, the bringing forward of that date;;

(c)after subsection (3) there is inserted—

(3A)Provision under subsection (3)(a) is to secure that an employee may bring forward the date on which an additional adoption leave period ends only if the employee or another person has taken, or is taking, prescribed steps as regards leave under section 75G or statutory shared parental pay in respect of the child.

(6)In section 80A (entitlement to ordinary paternity leave: birth), after subsection (4) there is inserted—

(4A)Provision under subsection (2)(b) must secure that, once an employee takes leave under section 75E in respect of a child, the employee may not take leave under this section in respect of the child.

(7)In section 80B (entitlement to ordinary paternity leave: adoption), after subsection (4) there is inserted—

(4A)Provision under subsection (2)(b) must secure that, once an employee takes leave under section 75G in respect of a child, the employee may not take leave under this section in respect of the child.

Annotations:

Commencement Information

I127S. 118 in force at 30.6.2014 by S.I. 2014/1640, art. 3(1)(b)

Statutory shared parental payE+W

119Statutory shared parental payE+W

(1)In the Social Security Contributions and Benefits Act 1992, after section 171ZT there is inserted—

PART 12ZC E+WStatutory shared parental pay
171ZUEntitlement: birth

(1)Regulations may provide that, where all the conditions in subsection (2) are satisfied in relation to a person who is the mother of a child (“the claimant mother”), the claimant mother is to be entitled in accordance with the following provisions of this Part to payments to be known as “statutory shared parental pay”.

(2)The conditions are—

(a)that the claimant mother and another person (“P”) satisfy prescribed conditions as to caring or intending to care for the child;

(b)that P satisfies prescribed conditions—

(i)as to employment or self-employment,

(ii)as to having earnings of a prescribed amount for a prescribed period, and

(iii)as to relationship either with the child or with the claimant mother;

(c)that the claimant mother has been in employed earner's employment with an employer for a continuous period of at least the prescribed length ending with a prescribed week;

(d)that at the end of that prescribed week the claimant mother was entitled to be in that employment;

(e)that the claimant mother's normal weekly earnings for a prescribed period ending with a prescribed week are not less than the lower earnings limit in force under section 5(1)(a) at the end of that week;

(f)if regulations so provide, that the claimant mother continues in employed earner's employment (whether or not with the employer by reference to whom the condition in paragraph (c) is satisfied) until a prescribed time;

(g)that the claimant mother became entitled to statutory maternity pay by reference to the birth of the child;

(h)that the claimant mother satisfies prescribed conditions as to the reduction of the duration of the maternity pay period;

(i)that the claimant mother has given the person who will be liable to pay statutory shared parental pay to her notice of—

(i)the number of weeks in respect of which she would be entitled to claim statutory shared parental pay in respect of the child if the entitlement were fully exercised (disregarding for these purposes any intention of P to claim statutory shared parental pay in respect of the child),

(ii)the number of weeks in respect of which she intends to claim statutory shared parental pay, and

(iii)the number of weeks in respect of which P intends to claim statutory shared parental pay;

(j)that the claimant mother has given the person who will be liable to pay statutory shared parental pay to her notice of the period or periods during which she intends to claim statutory shared parental pay in respect of the child;

(k)that a notice under paragraph (i) or (j)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content;

(l)that P consents to the extent of the claimant mother's intended claim for statutory shared parental pay;

(m)that it is the claimant mother's intention to care for the child during each week in respect of which statutory shared parental pay is paid to her;

(n)that the claimant mother is absent from work during each week in respect of which statutory shared parental pay is paid to her;

(o)that, where she is an employee within the meaning of the Employment Rights Act 1996, the claimant mother's absence from work during each such week is absence on shared parental leave.

(3)Regulations may provide that, where all the conditions in subsection (4) are satisfied in relation to a person (“the claimant”), the claimant is to be entitled in accordance with the following provisions of this Part to payments to be known as “statutory shared parental pay”.

(4)The conditions are—

(a)that the claimant and another person (“M”) who is the mother of a child satisfy prescribed conditions as to caring or intending to care for the child;

(b)that the claimant satisfies—

(i)prescribed conditions as to relationship with the child, or

(ii)prescribed conditions as to relationship with M;

(c)that M satisfies prescribed conditions—

(i)as to employment or self-employment, and

(ii)as to having earnings of a prescribed amount for a prescribed period;

(d)that the claimant has been in employed earner's employment with an employer for a continuous period of at least the prescribed length ending with a prescribed week;

(e)that at the end of that prescribed week the claimant was entitled to be in that employment;

(f)that the claimant's normal weekly earnings for a prescribed period ending with a prescribed week are not less than the lower earnings limit in force under section 5(1)(a) at the end of that week;

(g)if regulations so provide, that the claimant continues in employed earner's employment (whether or not with the employer by reference to whom the condition in paragraph (d) is satisfied) until a prescribed time;

(h)that M became entitled, by reference to the birth of the child, to—

(i)a maternity allowance, or

(ii)statutory maternity pay;

(i)that M satisfies prescribed conditions as to—

(i)the reduction of the duration of the maternity allowance period, or

(ii)the reduction of the duration of the maternity pay period, as the case may be;

(j)that the claimant has given the person who will be liable to pay statutory shared parental pay to the claimant notice of—

(i)the number of weeks in respect of which the claimant would be entitled to claim statutory shared parental pay in respect of the child if the entitlement were fully exercised (disregarding for these purposes any intention of M to claim statutory shared parental pay in respect of the child),

(ii)the number of weeks in respect of which the claimant intends to claim statutory shared parental pay, and

(iii)the number of weeks in respect of which M intends to claim statutory shared parental pay;

(k)that the claimant has given the person who will be liable to pay statutory shared parental pay to the claimant notice of the period or periods during which the claimant intends to claim statutory shared parental pay in respect of the child;

(l)that a notice under paragraph (j) or (k)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content;

(m)that M consents to the extent of the claimant's intended claim for statutory shared parental pay;

(n)that it is the claimant's intention to care for the child during each week in respect of which statutory shared parental pay is paid to the claimant;

(o)that the claimant is absent from work during each week in respect of which statutory shared parental pay is paid to the claimant;

(p)that, where the claimant is an employee within the meaning of the Employment Rights Act 1996, the claimant's absence from work during each such week is absence on shared parental leave.

(5)Regulations may provide for—

(a)the determination of the extent of a person's entitlement to statutory shared parental pay in respect of a child;

(b)when statutory shared parental pay is to be payable.

(6)Provision under subsection (5)(a) is to secure that the number of weeks in respect of which a person is entitled to payments of statutory shared parental pay in respect of a child does not exceed the number of weeks of the maternity pay period reduced by—

(a)where the mother of the child takes action that is treated by regulations as constituting for the purposes of this section her return to work without satisfying conditions prescribed under subsection (2)(h) or, as the case may be, subsection (4)(i)—

(i)the number of relevant weeks in respect of which maternity allowance or statutory maternity pay is payable to the mother, or

(ii)if that number of relevant weeks is less than a number prescribed by regulations, that prescribed number of weeks, or

(b)except where paragraph (a) applies, the number of weeks to which the maternity allowance period is reduced by virtue of section 35(3A) or, as the case may be, the maternity pay period is reduced by virtue of section 165(3A).

(7)In subsection (6)(a) “relevant week” means—

(a)where maternity allowance is payable to a mother, a week or part of a week falling before the time at which the mother takes action that is treated by regulations as constituting for the purposes of this section her return to work;

(b)where statutory maternity pay is payable to a mother, a week falling before the week in which the mother takes action that is so treated.

For these purposes “week” has the meaning given by section 122(1), in relation to maternity allowance, or the meaning given by section 165(8), in relation to statutory maternity pay.

(8)In determining the number of weeks for the purposes of subsection (6)(b)—

(a)week” has the same meaning as in subsection (7), and

(b)a part of a week is to be treated as a week.

(9)Provision under subsection (5)(a) is to secure that, where two persons are entitled to payments of statutory shared parental pay in respect of a child, the extent of one's entitlement and the extent of the other's entitlement do not, taken together, exceed what would be available to one person (see subsection (6)).

(10)Provision under subsection (5)(b) is to secure that no payment of statutory shared parental pay may be made to a person in respect of a child after the end of such period as may be prescribed.

(11)Provision under subsection (5)(b) is to secure that no payment of statutory shared parental pay in respect of a child may be made to a person who is the mother of the child before the end of the mother's maternity pay period.

(12)Regulations may provide that, where the conditions in subsection (13) are satisfied in relation to a person who is entitled to statutory shared parental pay under subsection (1) or (3) (“V”), V may vary the period or periods during which V intends to claim statutory shared parental pay in respect of the child in question, subject to complying with provision under subsection (14) where that is relevant.

(13)The conditions are—

(a)that V has given the person who will be liable to pay statutory shared parental pay to V notice of an intention to vary the period or periods during which V intends to claim statutory shared parental pay;

(b)that a notice under paragraph (a)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content.

(14)Regulations may provide that, where the conditions in subsection (15) are satisfied in relation to a person who is entitled to statutory shared parental pay under subsection (1) or (3) (“V”), V may vary the number of weeks in respect of which V intends to claim statutory shared parental pay.

(15)The conditions are—

(a)that V has given the person who will be liable to pay statutory shared parental pay to V notice of—

(i)the extent to which V has exercised an entitlement to statutory shared parental pay in respect of the child,

(ii)the extent to which V intends to claim statutory shared parental pay in respect of the child,

(iii)the extent to which another person has exercised an entitlement to statutory shared parental pay in respect of the child, and

(iv)the extent to which another person intends to claim statutory shared parental pay in respect of the child;

(b)that a notice under paragraph (a)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content;

(c)that the person who is P or, as the case may be, M in relation to V consents to that variation.

(16)A person's entitlement to statutory shared parental pay under this section is not affected by the birth of more than one child as a result of the same pregnancy.

171ZVEntitlement: adoption

(1)Regulations may provide that, where all the conditions in subsection (2) are satisfied in relation to a person with whom a child is, or is expected to be, placed for adoption under the law of any part of the United Kingdom (“claimant A”), claimant A is to be entitled in accordance with the following provisions of this Part to payments to be known as “statutory shared parental pay”.

(2)The conditions are—

(a)that claimant A and another person (“X”) satisfy prescribed conditions as to caring or intending to care for the child;

(b)that X satisfies prescribed conditions—

(i)as to employment or self-employment,

(ii)as to having earnings of a prescribed amount for a prescribed period, and

(iii)as to relationship either with the child or with claimant A;

(c)that claimant A has been in employed earner's employment with an employer for a continuous period of at least the prescribed length ending with a prescribed week;

(d)that at the end of that prescribed week claimant A was entitled to be in that employment;

(e)that claimant A's normal weekly earnings for a prescribed period ending with a prescribed week are not less than the lower earnings limit in force under section 5(1)(a) at the end of that week;

(f)if regulations so provide, that claimant A continues in employed earner's employment (whether or not with the employer by reference to whom the condition in paragraph (c) is satisfied) until a prescribed time;

(g)that claimant A became entitled to statutory adoption pay by reference to the placement for adoption of the child;

(h)that claimant A satisfies prescribed conditions as to the reduction of the duration of the adoption pay period;

(i)that claimant A has given the person who will be liable to pay statutory shared parental pay to claimant A notice of—

(i)the number of weeks in respect of which claimant A would be entitled to claim statutory shared parental pay in respect of the child if the entitlement were fully exercised (disregarding for these purposes any intention of X to claim statutory shared parental pay in respect of the child),

(ii)the number of weeks in respect of which claimant A intends to claim statutory shared parental pay, and

(iii)the number of weeks in respect of which X intends to claim statutory shared parental pay;

(j)that claimant A has given the person who will be liable to pay statutory shared parental pay to claimant A notice of the period or periods during which claimant A intends to claim statutory shared parental pay in respect of the child;

(k)that a notice under paragraph (i) or (j)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content;

(l)that X consents to the extent of claimant A's intended claim for statutory shared parental pay;

(m)that it is claimant A's intention to care for the child during each week in respect of which statutory shared parental pay is paid to claimant A;

(n)that claimant A is absent from work during each week in respect of which statutory shared parental pay is paid to claimant A;

(o)that, where claimant A is an employee within the meaning of the Employment Rights Act 1996, claimant A's absence from work during each such week is absence on shared parental leave.

(3)Regulations may provide that, where all the conditions in subsection (4) are satisfied in relation to a person (“claimant B”), claimant B is to be entitled in accordance with the following provisions of this Part to payments to be known as “statutory shared parental pay”.

(4)The conditions are—

(a)that claimant B and another person (“Y”) who is a person with whom a child is, or is expected to be, placed for adoption under the law of any part of the United Kingdom satisfy prescribed conditions as to caring or intending to care for the child;

(b)that claimant B satisfies—

(i)prescribed conditions as to relationship with the child, or

(ii)prescribed conditions as to relationship with Y;

(c)that Y satisfies prescribed conditions—

(i)as to employment or self-employment, and

(ii)as to having earnings of a prescribed amount for a prescribed period;

(d)that claimant B has been in employed earner's employment with an employer for a continuous period of at least the prescribed length ending with a prescribed week;

(e)that at the end of that prescribed week claimant B was entitled to be in that employment;

(f)that claimant B's normal weekly earnings for a prescribed period ending with a prescribed week are not less than the lower earnings limit in force under section 5(1)(a) at the end of that week;

(g)if regulations so provide, that claimant B continues in employed earner's employment (whether or not with the employer by reference to whom the condition in paragraph (d) is satisfied) until a prescribed time;

(h)that Y became entitled to statutory adoption pay by reference to the placement for adoption of the child;

(i)that Y satisfies prescribed conditions as to the reduction of the duration of the adoption pay period;

(j)that claimant B has given the person who will be liable to pay statutory shared parental pay to claimant B notice of—

(i)the number of weeks in respect of which claimant B would be entitled to claim statutory shared parental pay in respect of the child if the entitlement were fully exercised (disregarding for these purposes any intention of Y to claim statutory shared parental pay in respect of the child),

(ii)the number of weeks in respect of which claimant B intends to claim statutory shared parental pay, and

(iii)the number of weeks in respect of which Y intends to claim statutory shared parental pay;

(k)that claimant B has given the person who will be liable to pay statutory shared parental pay to claimant B notice of the period or periods during which claimant B intends to claim statutory shared parental pay in respect of the child;

(l)that a notice under paragraph (j) or (k)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content;

(m)that Y consents to the extent of claimant B's intended claim for statutory shared parental pay;

(n)that it is claimant B's intention to care for the child during each week in respect of which statutory shared parental pay is paid to claimant B;

(o)that claimant B is absent from work during each week in respect of which statutory shared parental pay is paid to claimant B;

(p)that, where claimant B is an employee within the meaning of the Employment Rights Act 1996, claimant B's absence from work during each such week is absence on shared parental leave.

(5)Regulations may provide for—

(a)the determination of the extent of a person's entitlement to statutory shared parental pay in respect of a child;

(b)when statutory shared parental pay is to be payable.

(6)Provision under subsection (5)(a) is to secure that the number of weeks in respect of which a person is entitled to payments of statutory shared parental pay in respect of a child does not exceed the number of weeks of the adoption pay period reduced by—

(a)where the person who became entitled to receive statutory adoption pay takes action that is treated by regulations as constituting for the purposes of this section the person's return to work without satisfying conditions prescribed under subsection (2)(h) or, as the case may be, subsection (4)(i)—

(i)the number of relevant weeks in respect of which statutory adoption pay is payable to the person, or

(ii)if that number of relevant weeks is less than a number prescribed by regulations, that prescribed number of weeks, or

(b)except where paragraph (a) applies, the number of weeks to which the adoption pay period has been reduced by virtue of section 171ZN(2A).

(7)In subsection (6)(a) “relevant week” means a week falling before the week in which a person takes action that is treated by regulations as constituting for the purposes of this section the person's return to work, and for these purposes “week” has the meaning given by section 171ZN(8).

(8)In determining the number of weeks for the purposes of subsection (6)(b)—

(a)week” has the same meaning as in subsection (7), and

(b)a part of a week is to be treated as a week.

(9)Provision under subsection (5)(a) is to secure that, where two persons are entitled to payments of statutory shared parental pay in respect of a child, the extent of one's entitlement and the extent of the other's entitlement do not, taken together, exceed what would be available to one person (see subsection (6)).

(10)Provision under subsection (5)(b) is to secure that no payment of statutory shared parental pay may be made to a person in respect of a child after the end of such period as may be prescribed.

(11)Provision under subsection (5)(b) is to secure that no payment of statutory shared parental pay in respect of a child may be made to a person who became entitled to receive statutory adoption pay in respect of the child before the end of the person's adoption pay period.

(12)Regulations may provide that, where the conditions in subsection (13) are satisfied in relation to a person who is entitled to statutory shared parental pay under subsection (1) or (3) (“V”), V may vary the period or periods during which V intends to claim statutory shared parental pay in respect of the child in question, subject to complying with provision under subsection (14) where that is relevant.

(13)The conditions are—

(a)that V has given the person who will be liable to pay statutory shared parental pay to V notice of an intention to vary the period or periods during which V intends to claim statutory shared parental pay;

(b)that a notice under paragraph (a)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content.

(14)Regulations may provide that, where the conditions in subsection (15) are satisfied in relation to a person who is entitled to statutory shared parental pay under subsection (1) or (3) (“V”), V may vary the number of weeks in respect of which V intends to claim statutory shared parental pay.

(15)The conditions are—

(a)that V has given the person who will be liable to pay statutory shared parental pay to V notice of—

(i)the extent to which V has exercised an entitlement to statutory shared parental pay in respect of the child,

(ii)the extent to which V intends to claim statutory shared parental pay in respect of the child,

(iii)the extent to which another person has exercised an entitlement to statutory shared parental pay in respect of the child, and

(iv)the extent to which another person intends to claim statutory shared parental pay in respect of the child;

(b)that a notice under paragraph (a)—

(i)is given by such time as may be prescribed, and

(ii)satisfies prescribed conditions as to form and content;

(c)that the person who is X or, as the case may be, Y in relation to V consents to that variation.

(16)A person's entitlement to statutory shared parental pay under this section is not affected by the placement for adoption of more than one child as part of the same arrangement.

(17)Regulations are to provide for entitlement to statutory shared parental pay in respect of a child placed, or expected to be placed, under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter.

(18)This section has effect in relation to regulations made by virtue of subsection (17) as if—

(a)references to a child being placed for adoption under the law of any part of the United Kingdom were references to being placed under section 22C of the Children Act 1989 with a local authority foster parent who has been approved as a prospective adopter;

(b)references to placement for adoption were references to placement under section 22C with such a person.

171ZWEntitlement: general

(1)Regulations may—

(a)provide that the following do not have effect, or have effect subject to prescribed modifications, in such cases as may be prescribed—

(i)section 171ZU(2)(a) to (o),

(ii)section 171ZU(4)(a) to (p),

(iii)section 171ZU(13)(a) and (b),

(iv)section 171ZU(15)(a) to (c),

(v)section 171ZV(2)(a) to (o),

(vi)section 171ZV(4)(a) to (p),

(vii)section 171ZV(13)(a) and (b), and

(viii)section 171ZV(15)(a) to (c);

(b)impose requirements about evidence of entitlement and procedures to be followed;

(c)specify in what circumstances employment is to be treated as continuous for the purposes of section 171ZU or 171ZV;

(d)provide that a person is to be treated for the purposes of section 171ZU or 171ZV as being employed for a continuous period of at least the prescribed period where—

(i)the person has been employed by the same employer for at least the prescribed period under two or more separate contracts of service, and

(ii)those contracts were not continuous;

(e)provide for amounts earned by a person under separate contracts of service with the same employer to be aggregated for the purposes of section 171ZU or 171ZV;

(f)provide that—

(i)the amount of a person's earnings for any period, or

(ii)the amount of the person's earnings to be treated as comprised in any payment made to the person or for the person's benefit,

are to be calculated or estimated for the purposes of section 171ZU or 171ZV in such manner and on such basis as may be prescribed and that for that purpose payments of a particular class or description made or falling to be made to or by a person are, to such extent as may be prescribed, to be disregarded or, as the case may be, to be deducted from the amount of the person's earnings.

(2)The persons upon whom requirements may be imposed by virtue of subsection (1)(b) include—

(a)a person who, in connection with another person's claim to be paid statutory shared parental pay, is required to satisfy conditions prescribed under section 171ZU(2)(b) or (4)(c) or 171ZV(2)(b) or (4)(c);

(b)an employer or former employer of such a person.

(3)In subsection (1)(d) “the prescribed period” means the period of the length prescribed by regulations under section 171ZU(2)(c) or (4)(d) or 171ZV(2)(c) or (4)(d), as the case may be.

171ZXLiability to make payments

(1)The liability to make payments of statutory shared parental pay under section 171ZU or 171ZV is a liability of any person of whom the person entitled to the payments has been an employee as mentioned in section 171ZU(2)(c) or (4)(d) or 171ZV(2)(c) or (4)(d), as the case may be.

(2)Regulations must make provision as to a former employer's liability to pay statutory shared parental pay to a person in any case where the former employee's contract of service with the person has been brought to an end by the former employer solely, or mainly, for the purpose of avoiding liability for statutory shared parental pay.

(3)The Secretary of State may, with the concurrence of the Commissioners for Her Majesty's Revenue and Customs, by regulations specify circumstances in which, notwithstanding this section, liability to make payments of statutory shared parental pay is to be a liability of the Commissioners.

171ZYRate and period of pay

(1)Statutory shared parental pay is payable at such fixed or earnings-related weekly rate as may be prescribed by regulations, which may prescribe different kinds of rate for different cases.

(2)Subject to the following provisions of this section, statutory shared parental pay is payable to a person in respect of each week falling within a relevant period, up to the number of weeks determined in the case of that person in accordance with regulations under section 171ZU(5) or 171ZV(5).

(3)Except in such cases as may be prescribed, statutory shared parental pay is not payable to a person in respect of a week falling within a relevant period if it is not the person's intention at the beginning of the week to care for the child by reference to whom the person satisfies—

(a)the condition in section 171ZU(2)(a) or (4)(a), or

(b)the condition in section 171ZV(2)(a) or (4)(a).

(4)Except in such cases as may be prescribed, statutory shared parental pay is not payable to a person in respect of a week falling within a relevant period during any part of which week the person works for any employer.

(5)The Secretary of State may by regulations specify circumstances in which there is to be no liability to pay statutory shared parental pay in respect of a week falling within a relevant period.

(6)Where for any purpose of this Part or of regulations it is necessary to calculate the daily rate of statutory shared parental pay, the amount payable by way of statutory shared parental pay for any day shall be taken as one seventh of the weekly rate.

(7)For the purposes of this section a week falls within a relevant period if it falls within a period specified in a notice under—

(a)section 171ZU(2)(j), (4)(k) or (13)(a), or

(b)section 171ZV(2)(j), (4)(k) or (13)(a),

and is not afterwards excluded from such a period by a variation of the period or periods during which the person in question intends to claim statutory shared parental pay.

(8)In this section “week”, in relation to a relevant period, means a period of seven days beginning with the day of the week on which the relevant period starts.

171ZZRestrictions on contracting out

(1)An agreement is void to the extent that it purports—

(a)to exclude, limit or otherwise modify any provision of this Part, or

(b)to require a person to contribute (whether directly or indirectly) towards any costs incurred by that person's employer or former employer under this Part.

(2)For the avoidance of doubt, an agreement between an employer and an employee, authorising deductions from statutory shared parental pay which the employer is liable to pay to the employee in respect of any period, is not void by virtue of subsection (1)(a) if the employer—

(a)is authorised by that or another agreement to make the same deductions from any contractual remuneration which the employer is liable to pay in respect of the same period, or

(b)would be so authorised if the employer were liable to pay contractual remuneration in respect of that period.

171ZZ1Relationship with contractual remuneration

(1)Subject to subsections (2) and (3), any entitlement to statutory shared parental pay is not to affect any right of a person in relation to remuneration under any contract of service (“contractual remuneration”).

(2)Subject to subsection (3)—

(a)any contractual remuneration paid to a person by an employer of that person in respect of any period is to go towards discharging any liability of that employer to pay statutory shared parental pay to that person in respect of that period; and

(b)any statutory shared parental pay paid by an employer to a person who is an employee of that employer in respect of any period is to go towards discharging any liability of that employer to pay contractual remuneration to that person in respect of that period.

(3)Regulations may make provision as to payments which are, and those which are not, to be treated as contractual remuneration for the purposes of subsections (1) and (2).

171ZZ2Crown employment

The provisions of this Part apply in relation to persons employed by or under the Crown as they apply in relation to persons employed otherwise than by or under the Crown.

171ZZ3Special classes of person

(1)The Secretary of State may with the concurrence of the Treasury make regulations modifying any provision of this Part in such manner as the Secretary of State thinks proper in its application to any person who is, has been or is to be—

(a)employed on board any ship, vessel, hovercraft or aircraft;

(b)outside Great Britain at any prescribed time or in any prescribed circumstances; or

(c)in prescribed employment in connection with continental shelf operations, as defined in section 120(2).

(2)Regulations under subsection (1) may, in particular, provide—

(a)for any provision of this Part to apply to any such person, notwithstanding that it would not otherwise apply;