Additional Learning Needs and Education Tribunal (Wales) Act 2018

A person has additional learning needs if he or she has a learning difficulty or disability (whether the learning difficulty or disability arises from a medical condition or otherwise) which calls for additional learning provision.

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

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

This section applies for the purposes of this Act.

“Additional learning provision” for a child aged under three means educational provision of any kind.

In subsection (1), “nursery education” means education suitable for a child who has attained the age of three but is under compulsory school age.

Regulations may amend this section to replace the references to the age of three with references to a different age.

This section applies for the purposes of this Act.

The Welsh Ministers must issue, and may from time to time revise, a code on additional learning needs (“the code”).

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.

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).

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).

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; F2...

In subsection (9)—

• “data subject” (“testun y data”) has the meaning given by section 3(5) of the Data Protection Act 2018;

• “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).

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.

The Welsh Ministers must publish the code for the time being in force on their website.

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.

The Welsh Ministers must not issue a code unless a draft of it is approved by a resolution of the National Assembly for Wales.

References in this section to a code include a revised code.

The requirement to consult imposed by subsection (1) may be satisfied by consultation undertaken before the coming into force of this Part.

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”).

Subsection (1) does not require specific consideration of the Convention on each occasion that a function is exercised.'

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.

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”).

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.

Subsection (1) does not require specific consideration of the Convention on each occasion that a function is exercised.

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.

A local authority must make arrangements to provide people with information and advice about additional learning needs and the system for which provision is made by this Part.

In making arrangements under subsection (1), a local authority must have regard to the principle that information and advice provided under the arrangements must be provided in an impartial manner.

Where the governing body of an institution in the further education sector is informed of arrangements under subsection (3), it must take reasonable steps to make the arrangements known to its students.

Where it is brought to the attention of, or otherwise appears to, the governing body of a maintained school in Wales that a child or young person who is a registered pupil at the school may have additional learning needs, it must decide whether the child or young person has additional learning needs, unless any of the circumstances in subsection (3) apply.

Where it is brought to the attention of, or otherwise appears to the governing body of an institution in the further education sector in Wales that a young person enrolled as a student at the institution may have additional learning needs, it must decide whether the young person has additional learning needs, unless any of the circumstances in subsection (3) apply.

This section does not apply to a child who is looked after by a local authority (see section 17 (duty to refer a matter to an authority that looks after a child)), unless the child is in the area of a local authority in England.

Where a governing body of a maintained school has been directed to prepare and maintain, or to maintain, an individual development plan for a person under section 14(2)(b), 14(4) or 27(6)(a), the governing body must prepare and maintain, or maintain, the plan (as the case may be), unless the circumstances in paragraph (b) or (d) of subsection (2) apply.

Where a governing body of an institution in the further education sector has agreed to a request under section 36(2) to become responsible for maintaining an individual development plan for a young person, or where the Welsh Ministers have determined under section 36(4) that the governing body should maintain the plan, the governing body must maintain the plan unless the circumstances in paragraph (b) or (d) of subsection (2) apply.

If, following a request under subsection (2)(c), the governing body is notified by the local authority in England that it is not required to secure an EHC plan for the child or young person, the governing body must prepare and maintain an individual development plan for the child or young person, unless the circumstances in paragraph (b) or (d) of subsection (2) apply.

Where it is brought to the attention of, or otherwise appears to, a local authority that a child or a young person for whom it is responsible may have additional learning needs, the authority must decide whether the child or young person has additional learning needs, unless any of the circumstances in subsection (2) apply.

This section does not apply to a child who is looked after by a local authority (see sections 17 (duty to refer a matter to an authority that looks after a child) and 18 (duty to decide whether a looked after child has additional learning needs)).

But the duty in subsection (2) does not apply if the plan is about a young person and the young person does not consent to the plan being prepared or maintained.

A local authority that maintains an individual development plan for a child or young person who is a registered pupil at a maintained school in Wales may direct the governing body of the school to maintain the plan.

If the reasonable needs of a child or young person for additional learning provision cannot be met unless a local authority also secures provision of the kind mentioned in subsection (7), the authority must include a description of that other provision in the plan.

If the duty in subsection (6) applies to a local authority, it may not give a direction under subsection (2)(b) or (4).

If the additional learning provision described in an individual development plan includes provision of the kind mentioned in section 41(1) of the Curriculum and Assessment (Wales) Act 2021, a local authority may not give directions to the governing body of a school under subsection (2)(b) or (4) in relation to the plan.

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.

“Independent reviewing officer” means the officer appointed under section 99 of the 2014 Act for a child's case.

“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.

This section applies for the purposes of this Act.

Section 83 of the Social Services and Well-being (Wales) Act 2014 (anaw 4) (care and support plans) is amended as follows.

After subsection (2) insert—

In subsection (3), for “under review the plans that it maintains under this section” substitute “ a care and support plan under review ”.

In subsection (4), for “plan”, the first time it appears, substitute “ care and support plan ”.

In subsection (7), for “a plan under this section” substitute “ a care and support plan ”.

In subsection (8), in paragraph (a), for “a plan under this section” substitute “ a care and support plan ”.

In subsection (9), for “plan maintained under this section” substitute “ care and support plan ”.

After subsection (9) insert—

The governing body or local authority must refer the matter to the local authority that looks after the child.

Where it is brought to the attention of, or otherwise appears to, a local authority that looks after a child that the child may have additional learning needs, it must decide whether the child has additional learning needs, unless any of the circumstances in subsection (2) apply.

The duty in subsection (2) applies ifa local authority that looks after a child has decided under section 18 that a looked after child has additional learning needs.

The local authority must prepare and maintain an individual development plan for the child if the child is in the area of a local authority in Wales.

If the reasonable needs of the child for additional learning provision cannot be met unless the local authority also secures provision of the kind mentioned in subsection (5), the authority must include a description of that other provision in the individual development plan.

See section 35 for provision about the transfer of duties to maintain individual development plans for children who already have plans when they become looked after.

The bodies specified in subsection (2) may refer a matter to an NHS body, asking it to consider whether there is any relevant treatment or service that is likely to be of benefit in addressing the additional learning needs of a child or young person.

If a matter is referred to an NHS body under this section, the NHS body must consider whether there is a relevant treatment or service that is likely to be of benefit in addressing the child's or young person's additional learning needs.

In this section, and in section 21, “relevant treatment or service” means any treatment or service that an NHS body would normally provide as part of the comprehensive health service in Wales continued under section 1(1) of the National Health Service (Wales) Act 2006 (c. 42).

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.

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.

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.

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.

Nothing in this section affects the power of the Education Tribunal for Wales to make an order under this Part.

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.

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.

If a local authority prepares an individual development plan for a looked after child or becomes responsible for maintaining an individual development plan for a looked after child that was previously being maintained for the child by another body, it must also give a copy of the plan to the child's independent reviewing officer.

A governing body or a local authority required to maintain an individual development plan must review it before the end of each review period.

The first review period is a period of 12 months starting with the date on which a copy of the plan is given under section 22.

But where none of the documents referred to in subsection (3)(a) and (b) has been given during the preceding review period, the subsequent review period is a period of 12 months starting with the first day after the end of that preceding review period.

Where a copy of a plan, revised plan or notice of decision is required to be given to more than one person, the reference in subsections (2) and (3) to the date on which it is given is a reference to the date on which the plan, revised plan or notice of decision is first given.

A governing body or a local authority required to maintain an individual development plan for a child or young person must review the plan if a request is made to it by the child, the child's parent or the young person, unless it considers a review to be unnecessary.

This section does not apply if an individual development plan relates to a child who is looked after by a local authority, unless the child is in the area of a local authority in England.

A local authority required to maintain an individual development plan for a looked after child must review the plan before the end of each review period.

The first review period is a period of 12 months starting with the date on which a copy of the plan is first given under section 22.

But where neither document referred to in subsection (3)(a) and (b) has been given during the preceding review period, the subsequent review period is a period of 12 months starting with the first day after the end of that preceding review period.

The duty in subsection (1) to review a plan before the end of a review period is treated as met if, before the end of that period, the Education Tribunal for Wales orders the local authority to revise the plan.

A local authority required to maintain an individual development plan for a looked after child must review the plan if a request is made to it by the looked after child or the looked after child's parent, unless the authority considers a review to be unnecessary.

The local authority must decide whether the child or young person has additional learning needs.

Before it makes its decision, the local authority must inform the governing body of the request and invite representations from the governing body.

For the purposes of this Part, a decision under subsection (2) is to be treated as a decision under section 13(1).

Where a local authority makes a decision under subsection (2), the previous decision of the governing body under section 11(1) ceases to have effect.

The local authority must reconsider the plan and decide whether or not to revise the plan.

Before it makes its decision, the local authority must inform the governing body of the request and invite representations from the governing body.

The local authority must give a copy of a notification under subsection (4) to the governing body.

The local authority must give a copy of the revised plan to the governing body (for provision about others to whom a copy must be given, see section 23(11)).

The local authority must decide whether it should take over responsibility for maintaining an individual development plan maintained by the governing body.

Where a governing body makes the request, the local authority must inform the child or young person and, in the case of a child, the child's parent of the request and invite representations.

Where a child, a child's parent or a young person makes the request, the local authority must inform the governing body of the request and invite representations from the governing body.

A local authority may decide to take over responsibility for maintaining a plan maintained by a governing body of a maintained school if it decides under section 27(6) that the plan should be revised.