Law to support Additional Learning Needs introduced

(Pic : Northampton College)

Having stood down the "picket line", it's worth giving those of you who might've laughed it off a friendly reminder of how much work's done here - just under two hours for this post; no pay, very little if any coverage of this topic anywhere other than the BBC. It's also what's going to be lost in the future; more on that tomorrow.

The latest Welsh law introduced in the Senedd on Tuesday (13^th December) - by Minister for Lifelong Learning, Alun Davies (Lab, Blaenau Gwent) - aims to improve and enhance the education rights of children and young adults with special/additional learning needs up to the age of 25.

The measures outlined in the Additional Learning Needs & Education Tribunal Bill were originally going to be contained in another law during the Fourth Assembly (I can't remember which one) but it was decided it would be better addressed on its own.

There are already statutory measures in place for children with special needs and learning disabilities as well as their parents but, at more than 30 years old, it's decided those measures are no longer fit for purpose. The current system is too complex and "adversarial", with families said to have to "battle" to get to each stage of the process in getting a good education for their children, and not knowing where to turn to for advice and support.

There's also an element of stigma attached to special needs, while the boundaries between what counts as special/additional needs and what doesn't is said to be blurred.

What's in the Additional Learning Needs Bill?

The Bill's key aims are to updated existing laws, create a new method of assessment that's quicker and easier to navigate, and increase fairness and transparency in the system when it comes to complaints.

Bill (pdf); explanatory memorandum (pdf).

Additional Learning Needs

The Bill:

• Defines a person as having "additional learning needs" (ALN) if they, though a learning difficulty or disability, require additional learning provision when compared to the majority of their peers of compulsory school age, or are expected to fall under this definition when they start school.
• Defines "additional learning provision" as training or education different, or in addition, to that provided for others of the same age in mainstream schools.
• Requires the Welsh Ministers to issue a Code on ALN, describing the functions and duties of various public bodies in relation to ALN.
• Places a duty on anyone undertaking functions in relation to ALN to have regard to:
• the views of the child or child's parent
• the importance of them participating fully in decisions relating to them
• the importance of providing relevant information
• Places a duty on local authorities to provide people with information on ALN, making them aware of independent advocacy services and dispute resolution arrangements. It also places a duty on them to consider whether ALN services should be provided through the medium of Welsh where applicable.

Individual Development Plans

The Bill:

• Places a duty on governing bodies of maintained schools, FE colleges and the home authority of a detained young person (if that person's home authority is in Wales) to prepare and "take all reasonable steps" to implement an individual plan for any pupil determined to have ALN, and provide copies to the child and parent. It also places a duty on them to inform parents and guardians of their reasoning in cases where they decide a pupil doesn't have ALN.
• Says governing bodies must designate an individual member of staff as a ALN co-ordinator with a responsibility for (unsurprisingly) co-ordinating ALN provision for pupils/students.
• Determines that the individual plan must have a statement of what the individual's additional needs are and what extra provision is necessary. These plans should be reviewed annually.
• Gives children the right to refuse to consent to any part of an individual plan prepared on their behalf.
• Amends the Social Services & Wellbeing Act 2014 to include ALN provision within personal education plans drafted for looked-after children (under local authority care). It also places a duty on governing bodies to inform the relevant local authority that their looked-after child has ALN.
• Places a duty on relevant bodies under this Act to consult with the NHS on whether there are treatments or services available that could help a child with ALN and, if so, places a duty on NHS bodies to secure that treatment or service. Local health boards will be required to appoint an education clinical lead officer to manage ALN needs with respect to the NHS.
• States that duties to maintain and apply an individual ALN plan end when a student is no longer enrolled at their institution or looked-after by a local authority, or reaches the age of 25 during an academic year at an FE college.
• States that parents or the child cannot be charged/asked to pay for anything provided in the individual plan.
• Places a duty on local authorities to presume in favour of providing places for ALN pupils in mainstream schools, unless:
• providing additional learning support is incompatible with providing education for other children
• educating the ALN child in a non-mainstream school is in the best interests of the child
• the child's parents wish them to be education in a non-mainstream school
• the child meets other circumstances prescribed in regulations
• Places a duty on the Welsh Government to maintain a list of independent special post-16 education providers in Wales and England, and local authorities will only be able to send ALN pupils to attend them - under their obligations in the Bill - if said institutions are on the list.
• Grants local authorities a power of entry at learning institutions to exercise their functions under this Bill.

Dispute Resolution

The Bill:

• Places a duty on local authorities to make arrangements with a view to "avoiding and resolving disagreements" between education bodies and children/parents of children with ALN.
• Makes it a legal requirement for anyone involved in a dispute to have access to independent advice, and places a duty on local authorities to make independent advocacy services available to children and young people involved in a dispute.
• Gives parents and children the right to appeal any decision, or make a claim, to the Education Tribunal of Wales (I come to that next).
• Grants powers to the Welsh Government to make regulations regarding the appeals process and the proceedings of the Education Tribunal of Wales, as well as regulations regarding the decision-making capacity of children in such cases.
• Makes it an offence not to disclose documents or attend Tribunal hearings, punishable by a fine of up to £1,000.
• Gives the Welsh Government an ability (but not an outright duty) to pay allowances for people attending the Tribunal.

The Education Tribunal of Wales

The Bill:

• Changes the name of the Special Educational Needs Tribunal of Wales (SENTW) to Education Tribunal of Wales.
• States that the Tribunal will consist of a President, a panel of legal chairs and two lay members.
• Says the President and legal chairs will be appointed by the Lord Chancellor (the senior judicial minister in EnglandandWales) with the agreement of the Lord Chief Justice. The lay panel members will be appointed by the Welsh Government with the agreement of the Welsh Secretary and President of the Tribunal. There's also a similar power of removal.

The Autism Question

Obviously this will re-ignite debate on the need for an Autism Bill (Assembly debates future of autism services), though as autism probably falls under the category of ALN, it may well be covered by this (in terms of education anyway) - though there'll be a grey area with regard Asperger's Syndrome, where those with the condition usually perform well academically.

I'd expect the parents of autistic children and young adults to continue to press for an Autism Bill (despite the new Welsh Government strategy), but this Bill will inevitably present an opportunity for AMs to make autism-specific amendments as it passes through the Assembly.

How much is the ALN Bill expected to cost?

There are several sectors that will incur an up-front cost.

The biggest impact will be felt by local authorities, SENTW, Estyn (school inspectorate), mainstream schools, health boards and FE colleges. The total "transition costs" are estimated to be £11.6million, of which £2.4million will fall on the Welsh Government.

As the Welsh Government intend to provide £6.96million in transitional grants to bodies impacted by the Bill, some £2.6million will have to be found by the affected bodies themselves. It's also expected to have a combined £1.6million in additional costs to parents due to the expanded right to appeal, as well as additional costs to independent schools to bring them up to compliance.

In terms of savings to the public sector resulting from the Bill, these are expected to be in the £15.3million range between 2017-18 and 2020-21, some £11.8million of which could help local authorities – mainly because the system will be "less adversarial" and less likely to be tied up in expensive legal battles.

In addition, the Bill is expected to result in savings of £7.01million between 2017-18 and 2020-21 to parents of young people with ALN.

So overall, while this will put extra cost on those bodies and services provided, the Bill's provisions are expected to have a net-benefit of around £7.5million between 2017-18 and 2020-21 (or £1.75million a year).

Update 13/06/17: The Welsh Government got their sums wrong.