E+W
Additional Learning Needs and Education Tribunal (Wales) Act 2018
2018 anaw 2
An Act of the National Assembly for Wales to reform the law on education and training for children and young people with additional learning needs; and to continue the Special Educational Needs Tribunal for Wales and to rename it the Education Tribunal for Wales.
[24 January 2018]
Having been passed by the National Assembly for Wales and having received the assent of Her Majesty, it is enacted as follows:
PART 1 E+WOVERVIEW
1Overview of this ActE+W
(1)Part 2 of this Act establishes the statutory system in Wales for meeting the additional learning needs of children and young people; it contains 5 chapters.
(2)Chapter 1 (sections 2 to 9)—
(a)gives the meaning of the key terms “additional learning needs” and “additional learning provision” (sections 2 and 3);
(b)provides for a code of practice on additional learning needs (sections 4 and 5);
(c)makes provision about participation by children, their parents and young people in decisions, about having regard to the United Nations Convention on the Rights of the Child and to the United Nations Convention on the Rights of Persons with Disabilities, and about access to information about the additional learning needs system established by Part 2 (sections 6 to 9).
(3)Chapter 2 (sections 10 to 46) provides for individual development plans for children and young people with additional learning needs.
(4)Provision is made for the plans to be prepared and maintained by governing bodies of maintained schools, the governing bodies of institutions in the further education sector or local authorities; and for the governing body or authority having the duty to maintain the plan to secure the additional learning provision contained in the plan.
(5)Special provision is made for plans for looked after children (sections 15 to 19) and children and young people who are subject to a detention order and placed in certain kinds of youth detention accommodation (sections 39 to 45).
(6)Provision is made requiring particular health bodies—
(a)to consider, on referral from a governing body or local authority, whether there is a relevant treatment or service they could provide that is likely to be of benefit in addressing a child's or young person's additional learning needs and, if so, to secure its provision (sections 20 and 21);
(b)to appoint a designated education clinical lead officer (section 61);
(c)to notify parents and local authorities where they form the opinion that a child under compulsory school age has, or probably has, additional learning needs (section 64).
(7)Chapter 3 (sections 47 to 67) makes further provision for and in connection with functions related to meeting additional learning needs, including—
(a)a duty on local authorities to favour education in mainstream maintained schools for children with additional learning needs (section 51);
(b)provision changing the registration system for independent schools to require the Welsh Ministers to publish a list of the registered schools which indicates the type or types of additional learning provision that an independent school makes (section 54);
(c)provision limiting the power of local authorities to secure additional learning provision for children or young people at independent schools to registered independent schools (section 55);
(d)a duty on the Welsh Ministers to establish and maintain a list of independent special post-16 institutions and a provision limiting the power of local authorities to secure additional learning provision at such institutions to those on the list (section 56);
(e)a duty on governing bodies of maintained schools and institutions in the further education sector to appoint additional learning needs co-ordinators (section 60);
(f)a duty on health bodies, local authorities, maintained schools and other bodies to provide information and other help to local authorities that request it (section 65).
(8)Chapter 4 (sections 68 to 81) makes provision about avoiding and resolving disagreements; it provides for—
(a)local authority arrangements for the avoidance and resolution of disagreements (section 68);
(b)independent advocacy services (section 69);
(c)rights of appeal to the Education Tribunal for Wales in respect of decisions as to whether or not a child or young person has additional learning needs, the contents of individual development plans and other decisions relating to plans (sections 70 and 72).
(9)Chapter 5 (section 82 to 90) makes general provision, including—
(a)a power for the Welsh Ministers to make regulations about the disclosure and use of information (section 82);
(b)a duty on the Welsh Ministers to make regulations for the purpose of giving effect to Part 2 in a case where a parent of a child, or a young person, lacks capacity (section 83);
(c)provision for the disapplication of certain duties to inform or notify a child or to take action following a request by a child where the child lacks capacity and does not have a case friend (section 84);
(d)provision about case friends for children who lack capacity (section 85).
(10)Part 3 (sections 91 to 94) continues the Special Educational Needs Tribunal for Wales and renames it the Education Tribunal for Wales.
(11)In addition to the jurisdiction set out in Chapter 4, the Education Tribunal has jurisdiction in relation to disability discrimination in schools (for provision about this, see section 116 of the Equality Act 2010 (c. 15) and Schedule 17 to that Act).
(12)Part 4 (sections 95 to 101) makes provision about the meaning of “in the area” of a local authority for the purposes of the Education Acts (section 95) and makes general provision, including provisions about interpretation that apply for the purposes of the Act (section 99).
PART 2 E+WADDITIONAL LEARNING NEEDS
CHAPTER 1E+WKEY TERMS, CODE AND PARTICIPATION
Key termsE+W
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Code of practiceE+W
4Additional learning needs codeE+W
(1)The Welsh Ministers must issue, and may from time to time revise, a code on additional learning needs (“the code”).
(2)The code may include guidance about the exercise of functions under this Part and about any other matter connected with identifying and meeting additional learning needs.
(3)The following persons must, when exercising functions under this Part, have regard to any relevant guidance contained in the code—
(a)a local authority in Wales or England;
(b)the governing body of a maintained school in Wales or England;
(c)the governing body of an institution in the further education sector in Wales or England;
(d)the proprietor of an Academy;
(e)a youth offending team for an area in Wales or England;
(f)a person in charge of relevant youth accommodation in Wales or England;
(g)a Local Health Board;
(h)an NHS trust;
(i)the National Health Service Commissioning Board;
(j)a clinical commissioning group;
(k)an NHS foundation trust;
(l)a Special Health Authority.
(4)For provision about local authorities requiring certain providers of nursery education to have regard to guidance contained in the code, see section 153 of the Education Act 2002 (c. 32).
(5)The code may impose requirements—
(a)on a local authority in respect of arrangements it must make under sections 9 (advice and information), 68 (avoidance and resolution of disagreements) and 69 (independent advocacy services);
(b)on a governing body of a maintained school in Wales or an institution in the further education sector in Wales or a local authority in respect of—
(i)decisions as to whether a child or young person has additional learning needs,
(ii)the preparation, content, form, review and revision of individual development plans, or
(iii)ceasing to maintain individual development plans;
(c)on a governing body of a maintained school in Wales or an institution in the further education sector in Wales in respect of the provision of information for the purposes of this Part.
(6)The code must include the following requirements on governing bodies and local authorities—
(a)a requirement under subsection (5)(b)(i) for the notification of a decision that a child or young person does not have additional learning needs to be given in accordance with section 11(4), 13(3), 18(3) or 40(4) before the end of a period of time specified in the code, subject to any exceptions to the requirement specified in the code;
(b)a requirement under subsection (5)(b)(ii) to prepare an individual development plan and give a copy of it in accordance with section 22 or 40(5) before the end of a period of time specified in the code, subject to any exceptions to the requirement specified in the code;
(c)a requirement under subsection (5)(b)(ii) to use the appropriate standard form set out in the code for an individual development plan; and the code must include one or more standard forms for this purpose.
(7)The code may make—
(a)different provision for different purposes or cases, and
(b)transitory, transitional or saving provision,
in relation to a requirement imposed under subsection (5) or provision made under section 7(4) or 8(4).
(8)The duty imposed by subsection (3) and a duty imposed under subsection (5) also apply to a person exercising a function for the purpose of the discharge of functions under this Part by the persons mentioned in subsection (3).
(9)The power to impose requirements under subsection (5)(c) does not include the power to impose requirements in respect of the disclosure of personal data to a person who is not the data subject, except for cases where the person is the parent of a child and the data subject is the child; F1...
[F2(9A)In subsection (9)—
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“data subject” (“testun y data”) has the meaning given by section 3(5) of the Data Protection Act 2018;
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“personal data” (“data personol”) has the same meaning as in Parts 5 to 7 of that Act (see section 3(2) and (14) of that Act).]
(10)The Education Tribunal for Wales 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.
(11)The Welsh Ministers must publish the code for the time being in force on their website.
Textual Amendments
F1Words in s. 4(9) omitted (25.5.2018) by virtue of Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 226(2)(a) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)
F2S. 4(9A) inserted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 226(2)(b) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)
Commencement Information
I1S. 4 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(2)(a)
5Procedure for making the codeE+W
(1)Before issuing or revising a code under section 4, the Welsh Ministers must consult the following persons on a draft of the code—
(a)each local authority;
(b)the governing body of each maintained school in Wales;
(c)the governing body of each institution in the further education sector in Wales;
(d)Her Majesty's Chief Inspector of Education and Training in Wales;
(e)the Children's Commissioner for Wales;
(f)the Welsh Language Commissioner;
(g)the relevant committee of the National Assembly for Wales with remit for the education of children and young persons;
(h)any other person the Welsh Ministers consider appropriate.
(2)If the Welsh Ministers wish to proceed with the draft (with or without modifications) they must lay a copy of the draft before the National Assembly for Wales.
(3)The Welsh Ministers must not issue a code unless a draft of it is approved by a resolution of the National Assembly for Wales.
(4)If the National Assembly for Wales resolves to approve a draft of the code—
(a)the Welsh Ministers must issue the code in the form of the draft, and
(b)the code comes into force on a day appointed by the Welsh Ministers in an order made by statutory instrument.
(5)An order under subsection (4)(b) may—
(a)appoint different days for different purposes;
(b)make transitory, transitional or saving provision in connection with the coming into force of a provision in the code.
(6)References in this section to a code include a revised code.
(7)The requirement to consult imposed by subsection (1) may be satisfied by consultation undertaken before the coming into force of this Part.
Commencement Information
I2S. 5 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(a)
Participation, United Nations conventions and access to informationE+W
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7Duty to have regard to the United Nations Convention on the Rights of the ChildE+W
(1)A relevant body exercising functions under this Part in relation to a child or young person must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”).
(2)For the purposes of subsection (1), Part 1 of the Convention is to be treated as having effect—
(a)as set out for the time being in Part 1 of the Schedule to the Rights of Children and Young Persons (Wales) Measure 2011 (nawm 2), but
(b)subject to any declaration or reservation as set out for the time being in Part 3 of that Schedule.
(3)Subsection (1) does not require specific consideration of the Convention on each occasion that a function is exercised.'
(4)A code issued under section 4 may make provision setting out what is required to discharge the duty in subsection (1); and subsection (1) is to be interpreted in accordance with any such provision.
(5)In subsection (1), “relevant body” means—
(a)a local authority;
(b)an NHS body.
Commencement Information
I3S. 7 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(2)(b)
8Duty to have regard to the United Nations Convention on the Rights of Persons with DisabilitiesE+W
(1)A relevant body exercising functions under this Part in relation to a disabled child or young person must have due regard to the United Nations Convention on the Rights of Persons with Disabilities and its optional protocol adopted on 13 December 2006 by General Assembly resolution A/RES/61/106 and opened for signature on 30 March 2007 (“the Convention”).
(2)The Convention is to be treated as having effect subject to any declaration or reservation made by the United Kingdom Government upon ratification, save where the declaration or reservation has subsequently been withdrawn.
(3)Subsection (1) does not require specific consideration of the Convention on each occasion that a function is exercised.
(4)A code issued under section 4 may make provision setting out what is required to discharge the duty in subsection (1); and subsection (1) is to be interpreted in accordance with any such provision.
(5)In subsection (1), “relevant body” means—
(a)a local authority;
(b)an NHS body.
Commencement Information
I4S. 8 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(2)(b)
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CHAPTER 2E+WINDIVIDUAL DEVELOPMENT PLANS
Preparing and maintaining individual development plansE+W
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Additional learning provision for looked after childrenE+W
15Key termsE+W
(1)A child is looked after by a local authority if he or she—
(a)is not over compulsory school age and is looked after by a local authority for the purposes of Part 6 of the Social Services and Well-being (Wales) Act 2014 (anaw 4) (“the 2014 Act”), and
(b)is not a detained person.
(2)Regulations may prescribe categories of looked after child who are not to be treated as looked after by a local authority for the purposes of this Act.
(3)“Independent reviewing officer” means the officer appointed under section 99 of the 2014 Act for a child's case.
(4)“Personal education plan” means the plan that is included in the care and support plan maintained for a looked after child under section 83(2A) of the 2014 Act.
(5)This section applies for the purposes of this Act.
Commencement Information
I5S. 15 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(b)
16Amendments to the Social Services and Well-being (Wales) Act 2014E+W
(1)Section 83 of the Social Services and Well-being (Wales) Act 2014 (anaw 4) (care and support plans) is amended as follows.
(2)After subsection (2) insert—
“(2A)A care and support plan for a child must include a record of the arrangements made to meet the child's needs in relation to education and training (a “personal education plan”).
(2B)But subsection (2A) does not apply to a child if he or she is within a category of looked after child prescribed in regulations, for whom no personal education plan is to be prepared.
(2C)If—
(a)a child has additional learning needs, and
(b)the child's care and support plan includes a personal education plan,
any individual development plan maintained for the child under section 19 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 must be incorporated within the personal education plan.
(2D)For the purposes of subsection (2C)—
(a)a “child” means a person not over compulsory school age (within the meaning given by section 8 of the Education Act 1996 (c. 56));
(b)“additional learning needs” has the meaning given by section 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018.”
(3)In subsection (3), for “under review the plans that it maintains under this section” substitute “ a care and support plan under review ”.
(4)In subsection (4), for “plan”, the first time it appears, substitute “ care and support plan ”.
(5)In subsection (5)—
(a)at the beginning, insert “ Subject to the provisions of Part 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018, ”;
(b)in paragraph (a), for “plans under this section” substitute “ care and support plans ”;
(c)in paragraph (b), for “plan is to contain” substitute “ care and support plan is to contain (including what a personal education plan is to contain) ”;
(d)in paragraph (c), for “plans” substitute “ care and support plans ”.
(6)In subsection (7), for “a plan under this section” substitute “ a care and support plan ”.
(7)In subsection (8), in paragraph (a), for “a plan under this section” substitute “ a care and support plan ”.
(8)In subsection (9), for “plan maintained under this section” substitute “ care and support plan ”.
(9)After subsection (9) insert—
“(10)References in subsections (2A) to (9) to a care and support plan are to be interpreted as references to a care and support plan prepared or maintained under this section.”
Commencement Information
I6S. 16 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(a)
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Additional learning provision and NHS bodiesE+W
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21Individual development plans: Local Health Boards and NHS trustsE+W
(1)If an NHS body identifies a relevant treatment or service that is likely to be of benefit in addressing a child's or young person's additional learning needs following a referral under section 20 it must—
(a)inform the body that made the referral of that treatment or service,
(b)if the referral was not made by a body that maintains an individual development plan for the child or young person, inform the body that maintains the individual development plan of that treatment or service, and
(c)if it considers that the treatment or service should be provided to the child or young person in Welsh, inform the persons mentioned in paragraphs (a) and (b) that the treatment or service should be provided in Welsh.
(2)If an NHS body does not identify a relevant treatment or service that is likely to be of benefit in addressing a child's or young person's additional learning needs following a referral under section 20 it must—
(a)inform the body that made the referral of that fact, and
(b)if the referral was not made by a body that maintains an individual development plan for the child or young person, inform the body that maintains the individual development plan of that fact.
(3)If an NHS body informs a body that maintains an individual development plan for a child or young person that there is a relevant treatment or service likely to be of benefit in addressing a child's or young person's additional learning needs, the body that maintains the plan must describe the treatment or service in the plan, specifying that it is additional learning provision to be secured by the NHS body.
(4)If an NHS body informs a body that maintains an individual development plan for a child or young person that a relevant treatment or service should be provided to a child or young person in Welsh, the body that maintains the plan must specify in the plan that the treatment or service is additional learning provision that should be provided in Welsh.
(5)If an individual development plan specifies under this section that additional learning provision is to be secured by an NHS body, the following duties do not apply to that additional learning provision—
(a)the duty of a governing body to secure provision under section 12(7) (including the duty to take reasonable steps to secure provision in Welsh);
(b)the duty of a local authority to secure provision under section 14(10)(a) and the duty to take reasonable steps to secure provision in Welsh under section 14(10)(c);
(c)the duty of a local authority to secure provision under section 19(7)(a) and the duty to take reasonable steps to secure provision in Welsh under section 19(7)(c).
(6)The description of the additional learning provision specified in a plan under this section as provision an NHS body is to secure may only be removed or changed on review of a plan in accordance with section 23 or 24 and with the agreement or at the request of the NHS body.
(7)If, on review of a plan, the NHS body requests a governing body or a local authority that maintains an individual development plan for a child or young person to remove or change the description of the additional learning provision specified in the plan under this section as provision the NHS body is to secure, the governing body or local authority must comply with the request.
(8)Nothing in this section affects the power of the Education Tribunal for Wales to make an order under this Part.
(9)If the Education Tribunal for Wales orders the revision of an individual development plan in relation to additional learning provision specified under this section as provision an NHS body is to secure, an NHS body is not required to secure the revised additional learning provision unless it agrees to do so.
(10)Regulations must provide that where an NHS body is under a duty to inform under subsection (1) or (2), it must comply with that duty within a prescribed period, unless a prescribed exception applies.
Commencement Information
I7S. 21 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(b)
Information about plansE+W
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Review of plansE+W
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Local authority reconsideration of governing body decisions and plansE+W
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Ceasing to maintain plansE+W
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32Reconsideration by local authorities of decisions of governing bodies under section 31E+W
(1)Subsection (2) applies where—
(a)a child, a child's parent or a young person has been notified of a decision of a governing body of a maintained school under section 31, and
(b)the child, the child's parent or the young person makes a request within a prescribed period to the local authority responsible for the child or young person for it to decide whether the governing body's duty to maintain the plan should cease.
(2)The local authority must decide whether the governing body should cease to maintain the plan.
(3)The local authority must notify the governing body and the child or young person and, in the case of a child, the child's parent of—
(a)the decision, and
(b)the reasons for the decision.
(4)If the local authority decides that the plan should be maintained, the governing body must continue to maintain the plan.
(5)If the local authority decides that the plan should not be maintained, the governing body must cease to maintain the plan, subject to section 33.
Commencement Information
I8S. 32 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(c)
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Transfer of plansE+W
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36Request to transfer plan to governing body of further education institutionE+W
(1)This section applies where a local authority maintains an individual development plan for a young person who is enrolled as a student at an institution in the further education sector in Wales.
(2)The local authority may request the governing body of the institution to become responsible for maintaining the plan.
(3)If the governing body fails to agree to the request within a prescribed period, the local authority may refer the matter to the Welsh Ministers.
(4)The Welsh Ministers must determine whether the governing body of the further education institution should maintain the plan.
Commencement Information
I9S. 36 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(d)
37Regulations about transfer of individual development plansE+W
(1)Regulations may make further provision for, and in connection with—
(a)the transfer under section 35 of a duty to maintain an individual development plan for a child or young person;
(b)the making of a request under section 36, a reference or determination under that section and the transfer of a duty to maintain an individual development plan for a young person following such a request or determination;
(c)the transfer in prescribed circumstances of a duty to maintain an individual development plan for a child or young person from—
(i)a local authority to another local authority;
(ii)the governing body of a maintained school or institution in the further education sector to the governing body of another maintained school or institution in the further education sector;
(iii)the governing body of a maintained school or institution in the further education sector to a local authority;
(iv)a local authority to the governing body of a maintained school or institution in the further education sector.
(2)In this section, a reference to the governing body of a maintained school or an institution in the further education sector is to the governing body of a school or institution in Wales.
Commencement Information
I10S. 37 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(c)
Powers to direct governing bodies of maintained schoolsE+W
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Additional learning provision for detained personsE+W
39Meaning of “detained person” and other key termsE+W
(1)For the purposes of this Act—
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“beginning of the detention” (“dechrau'r cyfnod o gadw person yn gaeth”) has the meaning given by section 562J of the Education Act 1996 (c. 56);
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“detained person” (“person sy'n cael ei gadw'n gaeth”) means a child or young person who is—
(a)subject to a detention order (within the meaning given by section 562(1A)(a), (2) and (3) of the Education Act 1996), and
(b)detained in relevant youth accommodation in Wales or England,
and in provisions applying on a person's release includes a person who, immediately before release, was a detained person;
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“home authority” (“awdurdod cartref”) has the meaning given by section 562J of the Education Act 1996, subject to regulations under subsection (2);
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“relevant youth accommodation” (“llety ieuenctid perthnasol”) has the meaning given by section 562(1A)(b) of the Education Act 1996.
(2)Regulations may provide for—
(a)paragraph (a) of the definition of “home authority” in section 562J(1) of the Education Act 1996 (the home authority of a looked after child) to apply with modifications for the purposes of this Part;
(b)provision in regulations made by the Welsh Ministers under section 562J(4) of the Education Act 1996 to apply with or without modifications for the purposes of this Part.
Commencement Information
I11S. 39 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(d)
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45Detention under Part 3 of the Mental Health Act 1983E+W
(1)Subsection (2) applies where, because of section 44 or section 562 of the Education Act 1996 (c.56), powers or duties conferred or imposed by or under this Part on local authorities or on the governing bodies of maintained schools or institutions in the further education sector do not apply in relation to a child or young person who is—
(a)subject to a detention order (within the meaning given by section 562(1A)(a), (2) and (3) of the Education Act 1996), and
(b)detained in a hospital under Part 3 of the Mental Health Act 1983 (c. 20).
(2)Regulations may provide for those powers or duties to be applied, with or without modification, in relation to the child or young person.
Commencement Information
I12S. 45 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(e)
Necessity of plansE+W
46Regulations about deciding whether an individual development plan is necessaryE+W
(1)Regulations under this section apply to the following provisions and decisions made under them—
(a)section 14(1)(c)(ii);
(b)section 31(6)(b);
(c)section 40(2)(b).
(2)Regulations may—
(a)specify factors to be taken into account in assessing whether it is necessary to prepare or maintain a plan;
(b)specify circumstances in which it is, or is not, necessary to prepare or maintain a plan;
(c)provide for what are, and what are not, to be considered reasonable needs for education or training (whether in specifying factors, specifying circumstances or otherwise);
(d)make further provision about the definition of “education or training”;
(e)make provision about the process for making decisions.
Commencement Information
I13S. 46 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(e)
CHAPTER 3E+WSUPPLEMENTARY FUNCTIONS
Functions relating to securing additional learning provisionE+W
47Duty to take all reasonable steps to secure additional learning provisionE+W
(1)Subsection (2) applies to a child or young person—
(a)who has additional learning needs,
(b)for whom an individual development plan is not being maintained, and
(c)who is a registered pupil at a maintained school in Wales or an enrolled student at an institution in the further education sector in Wales.
(2)The governing body of the maintained school or institution in the further education sector (as the case may be) must, in exercising its functions in relation to the school or institution, take all reasonable steps to secure that the additional learning provision called for by the child's or young person's additional learning needs is made.
(3)The Code under section 4 must include guidance about the exercise of the function in subsection (2) during the period in which an individual development plan is being prepared for a child or young person but has not been given.
(4)Subsection (5) applies to a child or young person—
(a)for whom an individual development plan is being maintained by a local authority, and
(b)who is a registered pupil at a maintained school in Wales or an enrolled student at an institution in the further education sector in Wales.
(5)The governing body of the maintained school or institution in the further education sector (as the case may be) must take all reasonable steps to help the local authority that maintains the plan to secure the additional learning provision specified in it.
Commencement Information
I14S. 47 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(2)(c)
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Additional learning provision in particular kinds of school or other institutionE+W
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54Amendments to registration requirements for independent schools in WalesE+W
(1)The Education Act 2002 (c. 32) is amended as follows.
(2)In section 158 (registers), after subsection (3) insert—
“(4)The Welsh Ministers must publish a list of the schools included in the register of independent schools in Wales, as amended from time to time.
(5)If the Welsh Ministers have been provided with the necessary information by the proprietor of the school, the published list must specify the type or types of additional learning provision made by a school on the list for pupils with additional learning needs (if any).”
(3)In section 160 (applications for registration), in subsection (2), for paragraph (e) substitute—
“(e)the type or types of additional learning provision made by the school for pupils with additional learning needs (if any).”
Commencement Information
I15S. 54 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(e)
55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56List of independent special post-16 institutionsE+W
(1)The Welsh Ministers must establish and maintain a list of independent special post-16 institutions in Wales and England (“the list”) for the purpose of subsection (3).
(2)The Welsh Ministers must publish the list, as amended from time to time.
(3)A local authority may only exercise its functions under this Part to secure education or training for a child or young person at an independent special post-16 institution in Wales or England if the institution is included in the list, subject to any prescribed exemptions.
(4)The Welsh Ministers may only include an institution in the list on application by its proprietor.
(5)Regulations must provide for—
(a)the contents of the list;
(b)requirements to be complied with as a condition of being included in the list;
(c)requirements to be complied with while the institution is listed (including requirements for approval by the Welsh Ministers of arrangements at the institution and change of such arrangements);
(d)removal of the institution from the list;
(e)rights of appeal to the First-tier Tribunal for proprietors of institutions against decisions—
(i)to refuse to list an institution;
(ii)to remove an institution from the list;
(iii)not to approve or not to approve a change to arrangements at the institution.
(6)In this section, “independent special post-16 institution” means an institution which provides education or training for persons over compulsory school age and is specially organised to provide such education or training for persons with additional learning needs, and which is not—
(a)an institution within the further education sector,
(b)an independent school included in the register of independent schools in Wales (kept under section 158 of the Education Act 2002 (c. 32)),
(c)an independent educational institution (within the meaning of Chapter 1 of Part 4 of the Education and Skills Act 2008 (c. 25)), which has been included in the register of independent educational institutions in England (kept under section 95 of that Act), or
(d)a 16 to 19 Academy.
Commencement Information
I16S. 56 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(f)
57Abolition of approval of non-maintained special schools in WalesE+W
(1)The Education Act 1996 (c. 56) is amended as follows.
(2)In section 337A (interpretation of Chapter), omit the definition of “the appropriate national authority”.
(3)In section 342 (approval of non-maintained special schools)—
(a)in subsection (1)—
(i)for “appropriate national authority” substitute “ Secretary of State ”, and
(ii)after “school”, the first time it appears, insert “ in England ”;
(b)in subsection (5)(a), for “appropriate national authority” substitute “ Secretary of State ”;
(c)omit subsection (6).
58Abolition of approval of independent schools in WalesE+W
Section 347 of the Education Act 1996 (c. 56) (approval of independent schools as suitable for admission of children with statements of special educational needs) is repealed.
59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional learning needs co-ordinating officersE+W
60Additional learning needs co-ordinatorE+W
(1)The duty in subsection (2) applies to—
(a)the governing body of a school in Wales that is—
(i)a community, foundation or voluntary school,
(ii)a maintained nursery school, or
(iii)a pupil referral unit;
(b)the governing body of an institution in the further education sector in Wales.
(2)The governing body must designate a person, or more than one person, to have responsibility for co-ordinating additional learning provision for pupils or students (as the case may be) with additional learning needs.
(3)A person designated under this section is to be known as an “additional learning needs co-ordinator”.
(4)Regulations may—
(a)require governing bodies to ensure that additional learning needs co-ordinators have prescribed qualifications or prescribed experience (or both);
(b)confer functions on additional learning needs co-ordinators in relation to provision for pupils or students (as the case may be) with additional learning needs.
(5)In subsections (2) and (4)(b), “students” means students enrolled at the institution in the further education sector.
Commencement Information
I17S. 60 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(g)
61Designated education clinical lead officerE+W
(1)A Local Health Board must designate an officer to have responsibility for co-ordinating the Board's functions in relation to children and young people with additional learning needs.
(2)A Local Health Board may only designate an officer who is—
(a)a registered medical practitioner, or
(b)a registered nurse or another health professional.
(3)A Local Health Board may only designate an officer it considers to be suitably qualified and experienced in the provision of health care for children and young people with additional learning needs.
(4)An officer designated under this section is to be known as a “designated education clinical lead officer”.
62Early years additional learning needs lead officerE+W
(1)A local authority must designate an officer to have responsibility for co-ordinating the authority's functions under this Part in relation to children under compulsory school age who are not attending maintained schools.
(2)An officer designated under this section is to be known as an “early years additional learning needs lead officer”.
Miscellaneous functionsE+W
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65Duties to provide information and other helpE+W
(1)Subsection (2) applies if a local authority requests a person mentioned in subsection (4) to exercise the person's functions to provide the authority with information or other help, which it requires for the purpose of exercising its functions under this Part.
(2)The person must comply with the request unless the person considers that doing so would—
(a)be incompatible with the person's own duties, or
(b)otherwise have an adverse effect on the exercise of the person's functions.
(3)A person that decides not to comply with a request under subsection (1) must give the local authority that made the request written reasons for the decision.
(4)The persons are—
(a)another local authority;
(b)a local authority in England;
(c)the governing body of a maintained school in Wales or England;
(d)the governing body of an institution in the further education sector in Wales or England;
(e)the proprietor of an Academy;
(f)a youth offending team for an area in Wales or England;
(g)a person in charge of relevant youth accommodation in Wales or England;
(h)a Local Health Board;
(i)an NHS trust;
(j)the National Health Service Commissioning Board;
(k)a clinical commissioning group;
(l)an NHS foundation trust;
(m)a Special Health Authority.
(5)Regulations may provide that, where a person is under a duty to comply with a request under this section, the person must comply with the request within a prescribed period, unless a prescribed exception applies.
Commencement Information
I18S. 65 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(h)
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67Provision of goods or services in relation to additional learning provisionE+W
(1)Regulations may provide for a local authority to supply goods or services to—
(a)a person exercising functions under this Part, or
(b)a person making additional learning provision in connection with the exercise of functions under this Part.
(2)The regulations may, among other things, provide for the terms and conditions on which goods and services may be supplied.
Commencement Information
I19S. 67 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(f)
CHAPTER 4E+WAVOIDING AND RESOLVING DISAGREEMENTS
Local authority arrangementsE+W
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Appeals and applications to the TribunalE+W
70Appeal and application rightsE+W
(1)Subsection (2) applies to—
(a)decisions of the governing body of an institution in the further education sector in Wales or a local authority;
(b)individual development plans prepared or maintained by the governing body of an institution in the further education sector in Wales or a local authority;
(c)individual development plans revised by a local authority under section 27(6).
(2)A child or young person and, in the case of a child, the child's parent, may appeal to the Education Tribunal for Wales against the following matters—
(a)a decision by the governing body of an institution in the further education sector in Wales under section 11 or a local authority under section 13, 18 or 26 as to whether a person has additional learning needs;
(b)in the case of a young person, a decision by a local authority under section 14(1)(c)(ii) as to whether it is necessary to prepare and maintain an individual development plan;
(c)the description of a person's additional learning needs in an individual development plan;
(d)the additional learning provision in an individual development plan or the fact that additional learning provision is not in a plan (including whether the plan specifies that additional learning provision should be provided in Welsh);
(e)the provision included in an individual development plan under section 14(6) or 19(4) or the fact that provision under those sections is not in the plan;
(f)the school named in an individual development plan for the purpose of section 48;
(g)if no school is named in an individual development plan for the purpose of section 48, that fact;
(h)a decision under section 27 not to revise an individual development plan;
(i)a decision under section 28 not to take over responsibility for an individual development plan following a request to consider doing so;
(j)a decision to cease to maintain an individual development plan under section 31(5) or 31(6);
(k)a decision under section 32(2) that a governing body of a maintained school should cease to maintain a plan;
(l)a refusal to decide a matter on the basis that section 11(3)(b), 13(2)(b), 18(2)(b) or 29(2)(a) applies (no material change in needs and no new information that materially affects the decision).
(3)A child or a child's parent may apply to the Education Tribunal for Wales for a declaration that the child either does or does not have the capacity to understand—
(a)information or documents that must be given to a child under this Part, or
(b)what it means to exercise the rights conferred on a child by this Part.
(4)The exercise of rights under this section is subject to—
(a)provision made by regulations under sections 74, 75, 83 and 85(8);
(b)section 85(4).
71Decisions on appeals and applications under section 70E+W
(1)On appeal under section 70(2), the Education Tribunal for Wales may—
(a)dismiss the appeal;
(b)order that a person has, or does not have, additional learning needs of a kind specified in the order;
(c)order the governing body of an institution in the further education sector in Wales or a local authority to prepare an individual development plan;
(d)order the governing body of an institution in the further education sector in Wales or a local authority to revise an individual development plan as specified in the order;
(e)order a governing body of a maintained school in Wales or an institution in the further education sector in Wales or local authority to continue to maintain an individual development plan (with or without revisions);
(f)order a local authority to take over responsibility for maintaining an individual development plan;
(g)order a governing body of an institution in the further education sector in Wales or local authority to review an individual development plan;
(h)remit the case to the governing body of an institution in the further education sector in Wales or local authority responsible for the matter for it to reconsider whether, having regard to any observations made by the Tribunal, it is necessary for a different decision to be made or different action to be taken.
(2)On application under section 70(3) in respect of a child, the Education Tribunal for Wales may declare that the child either does or does not have the capacity to understand—
(a)information or documents that must be given to a child under this Part, or
(b)what it means to exercise the rights conferred on a child by this Part.
72Appeal rights: detained personsE+W
(1)Subsection (2) applies to—
(a)decisions of a home authority in Wales under section 40;
(b)individual development plans kept by a home authority under section 42.
(2)A detained person and, in the case of a detained person who is a child, the detained person's parent, may appeal to the Education Tribunal for Wales against the following matters—
(a)a decision of the home authority as to whether a detained person has additional learning needs;
(b)a decision of the home authority as to whether it will be necessary for an individual development plan to be maintained for a detained person when he or she is released from detention;
(c)the description of a person's additional learning needs in an individual development plan;
(d)the additional learning provision in an individual development plan or the fact that additional learning provision is not in a plan (including whether the plan specifies that additional learning provision should be provided in Welsh);
(e)the provision included in an individual development plan under section 40(7) or the fact that provision under that section is not in the plan;
(f)the school named in an individual development plan for the purpose of section 48;
(g)if no school is named in an individual development plan for the purpose of section 48, that fact;
(h)a refusal to make a decision under section 40(2) on the basis that section 41(2)(b) applies (no material change in needs and no new information that materially affects the decision).
(3)The exercise of rights under this section is subject to—
(a)provision made by regulations under sections 74, 75, 83 and 85(8);
(b)section 85(4).
73Decisions on appeals under section 72E+W
On appeal under section 72, the Education Tribunal for Wales may—
(a)dismiss the appeal;
(b)order that a detained person has or does not have additional learning needs of a kind specified in the order;
(c)order a home authority to prepare an individual development plan;
(d)order a home authority to revise an individual development plan as specified in the order;
(e)remit the case to the home authority responsible for the matter for it to reconsider whether, having regard to any observations made by the Tribunal, it is necessary for a different decision to be made or different action to be taken.
74Regulations about appeals and applicationsE+W
(1)Regulations may make further provision about appeals and applications to the Education Tribunal for Wales under this Part, including, for example, provision—
(a)about other matters relating to an individual development plan against which appeals may be brought;
(b)about making and determining appeals or applications;
(c)conferring further powers on the Tribunal on determining appeals or applications;
(d)for unopposed appeals or applications.
(2)Regulations under subsection (1)(c) may include provision conferring power on the Tribunal, on determining an appeal against a matter or an application, to make recommendations in respect of other matters (including matters against which no appeal or application may be brought).
Commencement Information
I20S. 74 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(g)
75Regulations about procedureE+W
(1)Regulations may make provision about—
(a)the initiation of an appeal or application under this Part;
(b)the proceedings of the Education Tribunal for Wales on an appeal or application under this Part.
(2)Regulations under subsection (1) may include provision—
(a)as to the period within which, and the manner in which, appeals or applications are to be commenced;
(b)where the jurisdiction of the Tribunal is being exercised by more than one tribunal—
(i)for determining by which tribunal any appeal or application is to be heard, and
(ii)for the transfer of proceedings from one tribunal to another;
(c)for enabling any functions relating to matters preliminary or incidental to an appeal or application to be performed by the President or by the legal chair;
(d)for hearings to be conducted in the absence of a member other than the legal chair;
(e)as to the persons who may appear on behalf of the parties;
(f)for granting such rights to disclosure or inspection of documents or to further particulars as may be granted by the county court;
(g)requiring persons to attend to give evidence and produce documents;
(h)for authorising the administration of oaths to witnesses;
(i)for the determination of appeals or applications without a hearing in prescribed circumstances;
(j)as to withdrawal of appeals or applications;
(k)as to the award of costs or expenses;
(l)for assessing or otherwise settling any costs or expenses (and, in particular, for enabling such costs or expenses to be assessed in the county court);
(m)for the registration and proof of decisions and orders;
(n)for enabling the Tribunal to review its decisions, or revoke or vary its orders, in prescribed circumstances;
(o)for enabling the Tribunal to stay proceedings;
(p)for adding and substituting parties;
(q)for enabling appeals or applications by different persons to be dealt with together;
(r)for an appeal or application under this Part to be heard, in circumstances prescribed in the regulations, with a claim under Chapter 1 of Part 6 of the Equality Act 2010 (c. 15).
(3)Proceedings before the Tribunal must be held in private, except in prescribed circumstances.
(4)Part 1 of the Arbitration Act 1996 (c. 23) does not apply to any proceedings before the Tribunal but regulations may make provision corresponding to any provision of that Part.
Commencement Information
I21S. 75 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(i)
76NHS Bodies: evidence and Tribunal recommendationsE+W
(1)The Education Tribunal for Wales may, in relation to an appeal under this Part,—
(a)exercise its functions to require an NHS body to give evidence about the exercise of the body's functions;
(b)make recommendations to an NHS body about the exercise of the body's functions.
(2)Nothing in subsection (1) affects the generality of the powers to make regulations in sections 74 and 75.
(3)An NHS body to whom a recommendation has been made by the Tribunal must make a report to the Tribunal before the end of any prescribed period beginning with the date on which the recommendation is made.
(4)The report under subsection (3) must state –
(a)the action that the NHS body has taken or proposes to take in response to the recommendation, or
(b)why the NHS body has not taken and does not propose to take any action in response to the recommendation.
Commencement Information
I22S. 76 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(i)
77Compliance with ordersE+W
(1)If the Education Tribunal for Wales makes an order under this Part, the governing body or local authority concerned must comply with the order before the end of any prescribed period beginning with the date on which it is made.
(2)The governing body or local authority concerned must make a report to the Tribunal stating whether and how it has complied with the order before the end of a period of 14 days beginning with the first day after end of the period prescribed under subsection (1).
Commencement Information
I23S. 77 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(i)
78Power to share documents and other information with the Welsh MinistersE+W
The Education Tribunal for Wales may share with the Welsh Ministers any document or other information in its possession that relates to whether or not an order or recommendation made by the Tribunal under this Part has been or will be complied with or followed.
79OffenceE+W
(1)A person commits an offence if without reasonable excuse that person fails to comply with any requirement—
(a)in respect of the disclosure or inspection of documents, or
(b)to attend to give evidence and produce documents,
where that requirement is imposed by regulations under section 74 or 75 in relation to an appeal or application under section 70 or 72.
(2)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
80Allowances for attendance at the Education Tribunal for WalesE+W
The Welsh Ministers may pay allowances for the purpose of or in connection with the attendance of persons at the Education Tribunal for Wales.
81Appeals from the Education Tribunal for Wales to the Upper TribunalE+W
(1)A party to any proceedings under section 70 or 72 before the Education Tribunal for Wales may appeal to the Upper Tribunal on any point of law arising from a decision made by the Education Tribunal for Wales in those proceedings.
(2)An appeal may be brought under subsection (1) only if, on an application made by the party concerned, the Education Tribunal for Wales or the Upper Tribunal has given its permission.
(3)Section 12 of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (proceedings on appeal to the Upper Tribunal) applies in relation to appeals to the Upper Tribunal under this section as it applies in relation to appeals to it under section 11 of that Act, but as if references to the First-tier Tribunal were references to the Education Tribunal for Wales.
CHAPTER 5E+WGENERAL
InformationE+W
82Regulations about disclosure and use of informationE+W
(1)Regulations may make provision about disclosure or use of information for the purposes of this Part or for other purposes connected with the education of a child or young person.
(2)Regulations under subsection (1) may, for example—
(a)specify further persons to whom notice of decisions must be given (including, in specified cases, giving notice of decisions without the consent of the person to whom the decision relates or, in the case of a child, without the consent of that person's parent);
(b)specify further persons to whom written copies of a plan must be provided (including, in specified cases, the provision of copies without the consent of the person to whom the plan relates or, in the case of a child, without the consent of that person's parent);
(c)make provision about disclosure of plans;
(d)make provision about the use of information gathered in preparing and maintaining plans.
Commencement Information
I24S. 82 in force at 2.11.2020 by S.I. 2020/1182, reg. 2(h)
CapacityE+W
83Parents and young people lacking capacityE+W
(1)The Welsh Ministers must make regulations for the purpose of giving effect to this Part in a case where a parent of a child, or a young person, lacks capacity at the relevant time.
(2)Regulations under subsection (1) may include provision applying any enactment with modifications, including (for example) provision for—
(a)references to a child's parent to be interpreted as references to, or as including references to, a representative of the parent;
(b)references to a young person to be interpreted 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 despite section 27(1)(g) of the Mental Capacity Act 2005 (c. 9) (which 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)In subsection (1) “the relevant time” means the time at which, under the enactment in question, something is required or permitted to be done by or in relation to the parent or young person.
(4)The reference in subsection (1) to lacking capacity is to lacking capacity within the meaning of the Mental Capacity Act 2005.
(5)“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.
Commencement Information
I25S. 83 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(j)
84Capacity of childrenE+W
(1)Subsections (2) to (7) apply to—
(a)the duty to notify or inform a child under section 11(4), 13(3), 18(3), 22(2), 23(10), 24(9), 27(4), 28(4), 28(7), 31(7), 31(8), 31(9), 32(3), 40(4) or 42(6);
(b)the duty to give a copy of a plan or a revised plan to a child under section 22(1), 23(11), 24(10) or 40(5);
(c)the conditions in paragraphs (a) and (b) of section 20(3) as they apply to a child;
(d)the duty to review a plan following a request by a child under section 23(8) or 24 (7) ;
(e)the duty to reconsider following a request by a child under section 26(1), 27(1) or 32(1)(b);
(f)the duty to decide following a request by a child under section 28(1).
(2)The condition or duty does not apply if the governing body, local authority or NHS body (as the case may be) considers that the child does not have the capacity to understand the subject matter, unless subsection (3) applies.
(3)This subsection applies if—
(a)in the case of a decision by a governing body of a maintained school, the local authority responsible for the child informs the governing body that it considers that the child does have the capacity to understand the subject matter,
(b)a case friend has been appointed for the child under section 85 by order of the Education Tribunal for Wales, subject to provision in or under that section, or
(c)a declaration is made by the Education Tribunal for Wales under section 71(2) that the child does have the capacity to understand the subject matter.
(4)The condition or duty does not apply to a governing body of a maintained school if the local authority responsible for the child informs the governing body that the authority considers that the child does not have the capacity to understand the subject matter.
(5)Subsection (6) applies where—
(a)a governing body of a maintained school considers that a child either does or does not have the capacity to understand the subject matter relating to the exercise of a function to which this section applies, and
(b)the child or the child's parent requests the local authority responsible for the child to reconsider the matter.
(6)The local authority must decide whether the child has the capacity to understand the subject matter.
(7)The condition or duty does not apply if the Education Tribunal for Wales declares under section 71(2) that the child does not have the capacity to understand.
(8)In this section “the capacity to understand the subject matter” means the capacity to understand—
(a)information or documents that must be given to a child under this Part, or
(b)what it means to exercise the rights conferred on a child by this Part.
85Case friends for children who lack capacityE+W
(1)This section applies to a child who lacks the capacity to understand—
(a)information or documents that must be given to a child under this Part, or
(b)what it means to exercise the rights conferred on a child by this Part.
(2)The Education Tribunal for Wales may by order—
(a)appoint a person to be a case friend for a child to whom this section applies, or
(b)remove the person from being a case friend for the child,
on the application of any person or on its own initiative, subject to provision in regulations under subsection (8).
(3)A case friend appointed for a child under this section may—
(a)represent and support the child, and
(b)take decisions and act on behalf of the child,
in respect of matters arising under or by virtue of this Part, subject to provision in regulations under subsection (8).
(4)Where a person is appointed to be a case friend by order of the Tribunal under this section, the rights of a child under the provisions in subsection (5) are to be exercised by the case friend on behalf of the child and the provisions are to be interpreted accordingly.
(5)The provisions are—
(a)sections 11(4), 13(3), 18(3), 22(2), 23(10), 24(9), 27(4), 28(4), 28(7), 31(7), 31(8), 31(9), 32(3), 40(4) and 42(6) (duties to notify or inform);
(b)sections 22(1), 23(11), 24(10) and 40(5) (duties to give a copy of a plan or a revised plan);
(c)section 20(3) (duty to inform and give an opportunity to discuss);
(d)sections 23(8) and 24 (7) (duty to review a plan following a request);
(e)sections 26(1), 27(1) and 32(1)(b) (duties to reconsider following a request);
(f)section 28(1) (duty to decide following a request);
(g)section 70(2) (right of appeal);
(h)section 72 (right of appeal: detained persons).
(6)A case friend appointed under this section must—
(a)act fairly and competently,
(b)not have any interest adverse to that of the child,
(c)ensure that all steps and decisions taken by the case friend are for the benefit of the child, and
(d)take account of the child's views, so far as possible.
(7)In deciding whether to appoint a person to be a case friend, or to remove a person from being a case friend, the Tribunal must have regard, in particular, to whether the person is likely to comply (in the case of appointment) or has complied (in the case of removal) with the duty in subsection (6).
(8)Regulations may make further provision about case friends, including (among other things) provision—
(a)conferring functions on the Education Tribunal for Wales;
(b)conferring functions on case friends;
(c)for procedures in relation to case friends;
(d)specifying the circumstances in which a person may or may not act as a case friend;
(e)specifying the circumstances in which a child must have a case friend;
(f)specifying requirements in respect of the conduct of case friends;
(g)applying any enactment with or without modifications for the purpose of enabling a case friend to make decisions or act on behalf of a child in respect of matters arising under or by virtue of this Part.
Commencement Information
I26S. 85 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(k)
Higher education courses provided by further education institutionsE+W
86Students at further education institutions undertaking higher education coursesE+W
(1)For the purposes of this Part, a higher education student at an institution in the further education sector is not to be treated as enrolled as a student at the institution.
(2)The duty imposed on a local authority by section 68(2) (arrangements for the avoidance and resolution of disagreements) does not apply in so far as it would otherwise apply in relation to a young person in so far as that person is a higher education student at an institution in the further education sector.
(3)A person is a higher education student at an institution in the further education sector if the person is undertaking a higher education course provided by the institution and is not also receiving education or training provided by it.
(4)Where a person enrolled as a student at an institution in the further education sector is receiving education or training provided by it, and is also undertaking a higher education course provided by it, the person is a higher education student at the institution in relation to the higher education course (but is otherwise to be treated as enrolled as a student at the institution).
(5)In this section, “higher education course” means a course of any description mentioned in Schedule 6 to the Education Reform Act 1988 (c. 40).
Pupils and students at Welsh institutions who are resident in EnglandE+W
87Application of reconsideration provisions to pupils and students resident in EnglandE+W
(1)Subsections (2) and (3) of this section apply to a child or young person who is—
(a)in the area of a local authority in England, and
(b)a registered pupil at a maintained school in Wales.
(2)Sections 26, 27, 29 (in its application to sections 26 and 27 only) and 32 apply to the child or young person with the following modifications—
(a)in section 26(1)(b), 27(1)(b) and 32(1)(b) for “the local authority responsible for the child or young person” substitute “ the local authority that maintains the school ”;
(b)in section 27(1)(a), for “or 12 (3) ” substitute “ , 12 (3) or 12(5) ”;
(c)in section 29(2), omit paragraph (b);
(d)in each of the sections the other references to “local authority” are to be interpreted as references to the local authority that maintains the school;
(e)the duty in section 27(6) may only be discharged in accordance with paragraph (a) of that provision.
(3)Section 14 applies to the child or young person by virtue of subsection (2) and section 26(4) with the following modifications—
(a)in section 14(1), omit “a local authority is responsible for a child or young person, and”;
(b)the references to “local authority” are to be interpreted as references to the local authority that maintains the school;
(c)the duty in section 14(2) may only be discharged in accordance with paragraph (b) of that provision;
(d)the duty in section 14(2) does not apply if—
(i)the local authority requests a local authority in England to secure an assessment under section 36 of the Children and Families Act 2014 (c. 6) and, by virtue of that request or otherwise, the authority in England is responsible for the child or young person (within the meaning given by section 24(1) of that Act), or
(ii)a local authority in England maintains an EHC plan for the child or young person;
(e)if, following a request under paragraph (d)(i), the local authority is notified by the local authority in England that it is not required to secure an EHC plan for the child, the duty in section 14(2) applies again in respect of the child or young person;
(f)subsections (6) to (10) of section 14 do not apply.
(4)A local authority is responsible for a child or young person who is in the area of a local authority in England for the purposes of sections 68 and 69 if he or she is—
(a)a registered pupil at a school maintained by the authority, or
(b)enrolled as a student at an institution in the further education sector in the authority's area.
Giving notice etc.E+W
88Giving notice etc. under this PartE+W
(1)This section applies where a provision of this Part requires or authorises (in whatever terms) a governing body or local authority to—
(a)notify a person of something, or
(b)give a document to a person (including a notice or a copy of a document).
(2)The notification or document may be given to the person in question—
(a)by delivering it to the person,
(b)by sending it by post to the person's proper address,
(c)by leaving it at the person's proper address, or
(d)if the conditions in subsection (3) are met, by sending it electronically.
(3)A governing body or local authority may send a notification or document to a person electronically only if the following requirements are met—
(a)the person to whom the notification or document is to be given must have—
(i)indicated to the governing body or local authority a willingness to receive the notification or document electronically, and
(ii)provided the governing body or local authority with an address suitable for that purpose, and
(b)the governing body or local authority sends the notification or document to that address.
(4)For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (references to service by post) in its application to this section, the proper address of a person is the last known address of the person.
(5)A notification or document given to a person by leaving it at the person's proper address is to be treated for the purposes of this Part as having been given at the time at which it was left at that address.
Review of additional learning provision in WelshE+W
89Review of additional learning provision in WelshE+W
(1)The Welsh Ministers must arrange—
(a)for reviews of the sufficiency of additional learning provision in Welsh;
(b)for reports on the outcome of the reviews to be produced and published.
(2)Subsection (1) does not prevent reviews from also dealing with other matters.
(3)The first report on the outcome of a review must be published before 1 September in the fifth year following the year in which any of the provisions of this Part are brought into force by order (whether for all or limited purposes).
(4)The Welsh Ministers must publish subsequent reports before 1 September in every fifth year following the last year in which a report was required to be published.
90Power to amend duties to secure additional learning provision in WelshE+W
(1)This section applies to the following provisions—
-
section 12(7)(b);
-
section 14(10)(c);
-
section 19(7)(c);
-
section 20(5)(c);
-
section 21(5);
-
section 42(8)(b).
(2)Regulations may omit the words “take all reasonable steps to” from a provision.
(3)Regulations may provide that a provision has effect as if the words “take all reasonable steps to” were omitted—
(a)for a prescribed purpose,
(b)in relation to a prescribed body, or
(c)for a prescribed purpose in relation to a prescribed body.
(4)If the words “take all reasonable steps to” are omitted by regulations under subsection (2) from each provision to which this section applies, regulations may omit section 89.
PART 3 E+WEDUCATION TRIBUNAL FOR WALES
91Constitution of the Education Tribunal for WalesE+W
(1)The Special Educational Needs Tribunal for Wales is to continue and is renamed the Education Tribunal for Wales.
(2)The Tribunal is to consist of—
(a)a President of the Tribunal,
(b)a panel of persons who may serve as the legal chair of the Tribunal (“the legal chair panel”), and
(c)a panel of persons who may serve as the other two members of the Tribunal but not as the legal chair (“the lay panel”).
(3)The President is to be appointed by the Lord Chancellor F3... .
(4)Each member of the legal chair panel is to be appointed by the Lord Chancellor F4....
(5)The members of the lay panel are to be appointed by the Welsh Ministers with the agreement of the Secretary of State and the President.
(6)Regulations made by the Welsh Ministers may—
(a)provide for the jurisdiction of the Tribunal to be exercised by such number of tribunals as the President may determine from time to time, and
(b)make any other provision in connection with the establishment and continuation of the Tribunal which are considered necessary or desirable.
(7)The Welsh Ministers may provide staff and accommodation for the Tribunal.
Textual Amendments
F3Words in s. 91(3) omitted (10.4.2019) by virtue of The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Supplementary Provisions) Regulations 2019 (S.I. 2019/794), regs. 1(2), 2(2)
F4Words in s. 91(4) omitted (10.4.2019) by virtue of The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Supplementary Provisions) Regulations 2019 (S.I. 2019/794), regs. 1(2), 2(3)
Commencement Information
I27S. 91 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(l)
92The President and members of the panelsE+W
(1)A person may not be appointed as President or member of the legal chair panel unless he or she satisfies the judicial-appointment eligibility condition on a 5-year basis.
(2)A person may not be appointed as a member of the lay panel unless he or she satisfies requirements which may be prescribed in regulations made by the Welsh Ministers.
(3)If in the opinion of the Lord Chancellor and of the Lord Chief Justice the President is unfit to continue in office or is incapable of performing his or her duties, the Lord Chancellor may (with the agreement of the Lord Chief Justice) remove him or her from office.
(4)Each member of the legal chair panel or lay panel is to hold and vacate office under the terms of the instrument under which he or she is appointed.
(5)But a member of the legal chair panel or the lay panel may only be removed from office under the terms of the instrument with the agreement of the President.
(6)The President or a member of the legal chair panel or lay panel—
(a)may resign office by notice in writing to the Lord Chancellor or (as the case may be) the Welsh Ministers, and
(b)is eligible for re-appointment if he or she ceases to hold office.
Commencement Information
I28S. 92 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(l)
93Deputy President of the TribunalE+W
(1)The President may appoint a member of the legal chair panel as Deputy President of the Tribunal.
(2)A person appointed as Deputy President of the Tribunal holds and vacates that position in accordance with the terms of appointment.
(3)A person ceases to be Deputy President if he or she ceases to be a member of the legal chair panel.
(4)A person may resign as Deputy President by notice in writing to the President.
(5)A Deputy President may exercise functions of the President if—
(a)the President has delegated their exercise to the Deputy President,
(b)the office of President is vacant, or
(c)the President is unable for any reason to exercise them.
94Remuneration and expensesE+W
The Welsh Ministers may—
(a)pay remuneration and allowances to the President and any other person in respect of his or her service as a member of the Tribunal, and
(b)defray the expenses of the Tribunal.
PART 4 E+WMISCELLANEOUS AND GENERAL
MiscellaneousE+W
95Meaning of “in the area” of a local authorityE+W
In section 579 of the Education Act 1996 (c. 56)—
(a)in subsection (3A), after “Wales” insert “ or who would be wholly or mainly resident in the area of a local authority in Wales were it not for provision secured for the person under Part 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 ”.
(b)in subsection (3B), after “England” insert “ or who would be wholly or mainly resident in the area of a local authority in England were it not for provision secured for the person under Part 3 of the Children and Families Act 2014 ”.
(c)After subsection (3B) insert—
“(3C)The Welsh Ministers may make further provision by regulations about the meaning of references in this Act to a person who is “in the area” of a local authority in Wales.”
Commencement Information
I29S. 95 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(m)
GeneralE+W
96Minor and consequential amendments and repealsE+W
Schedule 1 provides for minor and consequential amendments and repeals.
Commencement Information
I30S. 96 in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(n)
97Power to make consequential and transitional provision etc.E+W
(1)If the Welsh Ministers consider it necessary or expedient for the purposes of, in consequence of, or for giving full effect to any provision of this Act, they may by regulations make—
(a)any supplementary, incidental or consequential provision, and
(b)any transitory, transitional or saving provision.
(2)Regulations under this section may amend, repeal or revoke any enactment or statutory document.
(3)A statutory document amended by regulations under this section must be published in its amended form by the person having the function of making or issuing the document.
(4)In this section, “statutory document” means an instrument (other than a statutory instrument) that is—
(a)made or issued under an enactment, and
(b)subject to a National Assembly for Wales procedure required by an enactment before it may be made or issued.
98RegulationsE+W
(1)A power to make regulations under this Act is to be exercised by statutory instrument.
(2)A power to make regulations under this Act includes power to make—
(a)different provision for different purposes or cases;
(b)incidental, supplementary, consequential, transitory, transitional or saving provision.
(3)A statutory instrument containing any of the following may not be made unless a draft of the instrument has been laid before, and approved by resolution of, the National Assembly for Wales—
(a)regulations under section 3(4), 39(2), 45, 46, 60(4), 74(1), 75, 82, 83, 85, 90 or 99(8);
(b)the first regulations made under section 15(2);
(c)regulations made under section 97 which amend or repeal any provision of an Act of Parliament or a Measure or Act of the National Assembly for Wales.
(4)Any other statutory instrument containing regulations made by the Welsh Ministers under this Act is subject to annulment in pursuance of a resolution of the National Assembly for Wales.
99General interpretationE+W
(1)In this Act—
-
“additional learning needs” (“anghenion dysgu ychwanegol”) has the meaning given by section 2;
-
“additional learning provision” (“darpariaeth ddysgu ychwanegol”) has the meaning given by section 3;
-
“beginning of detention” (“dechrau'r cyfnod o gadw person yn gaeth”) has the meaning given by section 39;
-
“case friend” (“cyfaill achos”) means a person appointed under section 85;
-
“child” (“plentyn”) means a person not over compulsory school age;
-
“clinical commissioning group” (“grŵp comisiynu clinigol”) means a body established under section 14D of the National Health Service Act 2006 (c. 41);
-
“detained person”(“person sy'n cael ei gadw'n gaeth”) has the meaning given by section 39;
-
“education” (“addysg”) includes full-time and part-time education, but does not include higher education; and “educational” (“addysgol”) and “educate” (“addysgu”) (and other related terms) are to be interpreted accordingly;
-
“EHC plan” (“cynllun AIG”) means a plan within section 37(2) of the Children and Families Act 2014 (c. 6) (education, health and care plans);
-
“enactment” (“deddfiad”) means a provision contained in any of the following (whenever enacted or made)—
(a)an Act of Parliament;
(b)a Measure or an Act of the National Assembly for Wales (including a provision of this Act);
(c)subordinate legislation made under an Act falling within paragraph (a) or a Measure or Act falling within paragraph (b);
-
“governing body” (“corff llywodraethu”), in relation to the governing body of an institution in the further education sector, has the meaning given by section 90 of the Further and Higher Education Act 1992 (c. 13);
-
“home authority” (“awdurdod cartref”) has the meaning given by section 39;
-
“independent reviewing officer” (“swyddog adolygu annibynnol”) has the meaning given by section 15;
-
“individual development plan” (“cynllun datblygu unigol”) has the meaning given by section 10;
-
“institution in the further education sector” (“sefydliad yn y sector addysg bellach”) means an institution falling within section 91(3) of the Further and Higher Education Act 1992;
-
“lay panel” (“panel lleyg”) means the panel of persons appointed under section 91(5);
-
“legal chair panel” (“panel cadeirydd cyfreithiol”) means the panel of persons appointed under section 91(4) (and “legal chair” (“cadeirydd cyfreithiol”) means a member of the panel);
-
“local authority” (“awdurdod lleol”) means the council of a county or county borough in Wales, except where specific reference is made to a local authority in England;
-
“Local Health Board” (“Bwrdd Iechyd Lleol”) means a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006 (c. 42);
-
“mainstream institution in the further education sector” (“sefydliad prif ffrwd yn y sector addysg bellach”) means an institution in the further education sector that is not specially organised to provide education or training for persons with additional learning needs;
-
“mainstream maintained school” (“ysgol brif ffrwd a gynhelir”) means a maintained school that is not—
(a)a special school, or
(b)a pupil referral unit;
-
“maintained school” (“ysgol a gynhelir”) means—
(a)a community, foundation or voluntary school,
(b)a community or foundation special school not established in a hospital,
(c)a maintained nursery school, or
(d)a pupil referral unit;
-
“National Health Service Commissioning Board” (“Bwrdd Comisiynu'r Gwasanaeth Iechyd Gwladol”) means the body established under section 1H of the National Health Service Act 2006;
-
“NHS body” (“corff GIG”) means—
(a)a Local Health Board, or
(b)an NHS trust;
-
“NHS foundation trust” (“ymddiriedolaeth sefydledig GIG”) has the meaning given by section 30 of the National Health Service Act 2006;
-
“NHS trust” (“ymddiriedolaeth GIG”) means a National Health Service trust established under section 18 of the National Health Service (Wales) Act 2006;
-
“personal education plan (“cyllun addysg personol”) has the meaning given by section 15;
-
“President” (“Llywydd”) means the President of the Education Tribunal for Wales appointed under section 91;
-
“proprietor” (“perchennog”), in relation to an institution that is not a school, means the person or body of persons responsible for the management of the institution;
-
“prescribed” (“rhagnodedig” and “a ragnodir”) means prescribed in regulations;
-
“pupil referral unit” (“uned cyfeirio disgyblion“) has the meaning given by section 19(2) of the Education Act 1996 (c. 56);
-
“regulations” (“rheoliadau”) means regulations made by the Welsh Ministers;
-
“relevant youth accommodation” (“llety ieuenctid perthnasol”) has the meaning given by section 39;
-
“Special Health Authority” (“Awdurdod Iechyd Arbennig”) means a Special Health Authority established under section 22 of the National Health Service (Wales) Act 2006 or section 28 of the National Health Service Act 2006;
-
“training” (“hyfforddiant”) includes—
(a)full-time and part-time training;
(b)vocational, social, physical and recreational training;
-
“Tribunal” (“Tribiwnlys”) means the Education Tribunal for Wales (see section 91);
-
“young person” (“person ifanc”) means a person over compulsory school age, but under 25;
-
“youth offending team” (“tîm troseddwyr ifanc”) means a team established under section 39 of the Crime and Disorder Act 1998 (c. 37).
(2)In the definition of “maintained school” in subsection (1)—
(a)a community, foundation or voluntary school, and
(b)a community or foundation special school,
have the meaning given by the School Standards and Framework Act 1998 (c. 31).
(3)In this Act—
(a)an institution in the further education sector is in Wales if its activities are carried on wholly or mainly in Wales;
(b)an institution in the further education sector is in England if its activities are carried on wholly or mainly in England.
(4)For the purposes of this Act, a local authority is responsible for a child or young person if he or she is in the area of the authority.
(5)A reference in this Act (however expressed) to a child who is looked after by a local authority has the meaning given by section 15.
(6)The Education Act 1996 (“the 1996 Act”) and the preceding provisions of this Act (except so far as they amend other Acts) are to be interpreted as if those provisions were contained in the 1996 Act.
(7)Where an expression is given for the purposes of any provision of this Act a meaning different from that given to it for the purposes of the 1996 Act, that meaning is to apply for the purposes of that provision instead of the one given for the purposes of the 1996 Act.
(8)Regulations may amend the definition of “NHS body” so that it includes a Special Health Authority established under section 22 of the National Health Service (Wales) Act 2006.
100Coming into forceE+W
(1)This section and sections 1, 97, 98, 99 and 101 come into force on the day after the day on which this Act receives Royal Assent.
(2)Paragraph 5 of Schedule 1 comes into force at the end of the period of two months beginning with the day on which this Act receives Royal Assent.
(3)The remaining provisions of this Act come into force on a day appointed by the Welsh Ministers in an order made by statutory instrument.
(4)An order under subsection (3) may—
(a)appoint different days for different purposes or cases;
(b)make transitory, transitional or saving provision in connection with the coming into force of a provision of this Act.
101Short title and inclusion as one of the Education ActsE+W
(1)The short title of this Act is the Additional Learning Needs and Education Tribunal (Wales) Act 2018.
(2)This Act is to be included in the list of Education Acts set out in section 578 of the Education Act 1996 (c. 56).
(introduced by section 96)
SCHEDULE 1E+WMINOR AND CONSEQUENTIAL AMENDMENTS AND REPEALS
Local Authority Social Services Act 1970 (c. 42)E+W
1E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Children Act 1989 (c. 41)E+W
2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Tribunals and Inquiries Act 1992 (c. 53)E+W
3E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Education Act 1996 (c. 56)E+W
4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
5E+WIn section 333(5) of the Education Act 1996—
(a)before the paragraphs, omit “with the agreement of the Secretary of State”;
(b)in paragraph (b), omit “, with the agreement of the Secretary of State,”.
6E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
School Standards and Framework Act 1998 (c. 31)E+W
7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.
Learning and Skills Act 2000 (c. 21)E+W
8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Education Act 2002 (c. 32)E+W
9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Constitutional Reform Act 2005 (c. 4)E+W
10E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
National Health Service Act 2006 (c. 41)E+W
11E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
National Health Service (Wales) Act 2006 (c. 42)E+W
12E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tribunals, Courts and Enforcement Act 2007 (c. 15)E+W
13E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Learner Travel (Wales) Measure 2008 (nawm 2)E+W
14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Education and Skills Act 2008 (c.25)E+W
15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Prospective
Learning and Skills (Wales) Measure 2009 (nawm 2)E+W
16E+WIn the Schedule to the Learning and Skills (Wales) Measure 2009 (minor and consequential amendments), omit paragraph 10.
Apprenticeships, Skills, Children and Learning Act 2009 (c. 22)E+W
17E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Education (Wales) Measure 2009 (nawm 7)E+W
18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Equality Act 2010 (c. 15)E+W
19(1)The Equality Act 2010 is amended as follows.E+W
(2)In section 116(1)(b) (education cases), for “Special Educational Needs Tribunal for Wales” substitute “ Education Tribunal for Wales ”.
(3)In section 136(6)(e) (burden of proof), for “Special Educational Needs Tribunal for Wales” substitute “ Education Tribunal for Wales ”.
(4)In section 209(3) (orders and regulations made by the Welsh Ministers), after paragraph (d) insert—
“(e)regulations under paragraph 6, 6A or 6F of Schedule 17 (tribunal procedure, case friends and capacity of parents and persons over compulsory school age).”
(5)In Schedule 17 (disabled pupils: enforcement)—
(a)in paragraph 1—
(i)in paragraph (b) of the definition of “Tribunal”, for “Special Educational Needs Tribunal for Wales” substitute “ Education Tribunal for Wales ”;
(ii)in the definition of “Welsh Tribunal”, for “Special Educational Needs Tribunal for Wales” substitute “ Education Tribunal for Wales ”;
(b)in the heading of paragraph 3, omit “and Wales”;
(c)in paragraph 3—
(i)after “responsible body” insert “ in England ”;
(ii)omit paragraph (b);
(d)in paragraph 3A—
(i)in sub-paragraph (1), for “that person (“the relevant person”)” substitute—
“(a)the person (including a child not over compulsory school age), or
(b)if the person is a child not over compulsory school age, the person's parent”;
(ii)omit sub-paragraph (3);
(iii)in sub-paragraph (4), for “6A” insert “ 6A(7) ”;
(e)in paragraph 6—
(i)in sub-paragraph (2)(a), omit “3 or”;
(ii)in sub-paragraph (7), for “Part 4 of the Education Act 1996 (special educational needs)” substitute “ Part 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 ”;
(f)after paragraph 6 insert—
“Appeals from the Welsh TribunalE+W
6AA(1)A party to any proceedings on a claim under paragraph (3A) before the Welsh Tribunal may appeal to the Upper Tribunal on any point of law arising from a decision made by the Welsh Tribunal in those proceedings.
(2)An appeal may be brought under sub-paragraph (1) only if, on an application made by the party concerned, the Welsh Tribunal or the Upper Tribunal has given its permission.
(3)Section 12 of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (proceedings on appeal to the Upper Tribunal) applies in relation to appeals to the Upper Tribunal under this paragraph as it applies in relation to appeals to it under section 11 of that Act, but as if references to the First-tier Tribunal were references to the Welsh Tribunal.”
(g)for paragraph 6A substitute—
“6A(1)This paragraph applies to a child not over compulsory school age who—
(a)has the right to make a claim under paragraph 3A, and
(b)lacks the capacity to understand what it means to exercise that right.
(2)The Education Tribunal for Wales may by order—
(a)appoint a person to be a case friend for a child to whom this section applies, or
(b)remove the person from being a case friend for the child,
on the application of any person or on its own initiative, subject to provision in regulations under sub-paragraph (7).
(3)A case friend appointed for a child under this paragraph may—
(a)represent and support the child, and
(b)take decisions and act on behalf of the child,
in respect of matters arising under or by virtue of this Schedule, subject to provision in regulations under sub-paragraph (7).
(4)Where a person is appointed to be a case friend by order of the Tribunal under this paragraph, the right of a child to make a claim under paragraph 3A is to be exercised by the case friend on behalf of the child.
(5)A case friend appointed under this paragraph must—
(a)act fairly and competently,
(b)not have any interest adverse to that of the child,
(c)ensure that all steps and decisions taken by the case friend are for the benefit of the child, and
(d)take account of the child's views, so far as possible.
(6)In deciding whether to appoint a person to be a case friend, or to remove a person from being a case friend, the Tribunal must have regard, in particular, to whether the person is likely to comply (in the case of appointment) or has complied (in the case of removal) with the duty in sub-paragraph (5).
(7)The Welsh Ministers may by regulations make further provision about case friends, including (among other things) provision—
(a)conferring functions on the Education Tribunal for Wales;
(b)conferring functions on case friends;
(c)for procedures in relation to case friends;
(d)specifying the circumstances in which a person may or may not act as a case friend;
(e)specifying the circumstances in which a child must have a case friend;
(f)specifying requirements in respect of the conduct of case friends;
(g)applying any enactment with or without modifications for the purpose of enabling a case friend to make decisions or act on behalf of a child in respect of matters arising under or by virtue of this Schedule.”;
(h)after paragraph 6E insert—
“Capacity of parents and persons over compulsory school age - WalesE+W
6F(1)The Welsh Ministers must make regulations for the purpose of a claim that a responsible body for a school in Wales has contravened Chapter 1 of Part 6 in relation to a person because of disability in a case to which sub-paragraph (2) or (3) applies.
(2)This sub-paragraph applies where the person is a child not over compulsory school age and the parent of the person lacks capacity at the relevant time.
(3)This sub-paragraph applies where the person is over compulsory school age and lacks capacity at the relevant time.
(4)Regulations under sub-paragraph (1) may include provision applying any enactment with modifications, including (for example) provision for modifications to have effect despite section 27(1)(g) of the Mental Capacity Act 2005 (c. 9) (which 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).
(5)In this paragraph “the relevant time” means the time at which, under this Act, something is required or permitted to be done by or in relation to a parent or a person over compulsory school age.
(6)The reference in this paragraph to lacking capacity is to lacking capacity within the meaning of the Mental Capacity Act 2005.
(7)“Representative”, in relation to a parent or a person over compulsory school age, 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 person's behalf in relation to matters within this Schedule;
(b)the donee of a lasting power of attorney (within the meaning of section 9 of that Act) appointed by the parent or person to make decisions on his or her behalf in relation to matters within this Schedule;
(c)an attorney in whom an enduring power of attorney (within the meaning of Schedule 4 to that Act) created by the parent or 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.”
(6)In consequence of the amendments made by sub-paragraph (5)(d), in the Education (Wales) Measure 2009 (nawm 7), omit section 12.
Commencement Information
I31Sch. 1 para. 19(1)(4)(5)(g)(h) in force at 2.11.2020 for specified purposes by S.I. 2020/1182, reg. 3(1)(n)
Welsh Language (Wales) Measure 2011 (nawm 1)E+W
20E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10)E+W
21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
School Standards and Organisation (Wales) Act 2013 (anaw 1)E+W
22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Children and Families Act 2014 (c. 6)E+W
23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
Social Services and Well-being (Wales) Act 2014 (anaw 4)E+W
24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W