The Welsh Ministers are proposing that the law in this area be changed.
The relevant legal provisions for the education of those with additional learning needs vary depending upon the age of the individual in question. This summary therefore differentiates between the systems in force in relation to those of compulsory school age and under (as defined by section 8 of the Education Act 1996 (EA 1996)), and those over compulsory school age.
Compulsory school age and under
Special educational needs
A child will have ‘special educational needs’ for the purposes of EA 1996 if the child has a learning difficulty which calls for special educational provision to be made for them (section 312(1) of EA 1996).
A child has a 'learning difficulty' if the child:
- has a significantly greater difficulty in learning than the majority of children of his or her age;
- has a disability which either prevents or hinders him or her from making use of educational facilities of a kind generally provided for children of his or her age in schools within the area of the local authority; or
- is under compulsory school age and is likely to fall within one or both of the previous two categories when of compulsory school age, or would be likely to fall within them if special educational provision were not made available for him or her (section 312(2) of EA 1996).
However, a child is not to be taken as having a learning difficulty solely because the language (or form of the language) in which he or she is, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his or her home (section 312(3) of EA 1996).
Similarly, more able and talented children do not fall within the scope of s312(2) of EA 1996 – (this has been established by the courts in interpreting the section – see the case of S v Special Educational Needs Tribunal  EWHC 196 (Admin)).
'Special educational provision' means:
- in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of the child’s age in schools maintained by the local authority (other than special schools); and
- in relation to a child under that age, educational provision of any kind (section 312(4) of EA 1996).
Identification and assessment of SEN
A local authority must identify those children for whom it is responsible who have SEN and make special educational provision for their learning difficulties (see section 321 of EA 1996).
Where a child with SEN is identified, the local authority must follow the procedures for notifying parents (or those with care of or parental responsibility for the child – see section 576 of EA 1996) and undertaking assessments which are set out in section 323 of EA 1996. The Welsh Ministers have powers which allow them to make provision (by regulations) as to the manner in which assessments are to be conducted and other matters (see Schedule 26 to EA 1996). The Welsh Ministers have exercised this power – see the Education (Special Educational Needs) (Wales) Regulations 2002 (SI 2002/152).
The parents of a child may also ask a local authority to arrange a SEN assessment of a child in certain circumstances. Where an authority determines not to undertake an assessment despite the request, parents have a potential right of appeal to the Special Educational Needs Tribunal for Wales/Tribiwnlys Anghenion Addysgol Arbennig Cymru ('the Tribunal') – see section 329 of EA 1996. Details of the Tribunal’s powers and procedures are contained in EA 1996 and in regulations, such as the Special Educational Needs Tribunal for Wales Regulations 2012 (SI 2012/322).
Statements and special educational provision
Where a local authority determines the special educational provision a child requires, the authority must make and maintain a statement of his or her special educational needs (section 324 of EA 1996). The required form of such statements has been set out by the Welsh Ministers in the Education (Special Educational Needs) (Wales) Regulations 2002 (SI 2002/152). Further details about the making and maintenance of statements (including amendments) are set out in Schedule 27 to EA 1996.
It is worth noting, however, that the majority of children who have SEN do not have (and do not need) such a formal statement of SEN and this is not a pre-requisite for a child to be given additional assistance. Many children with SEN continue to participate in mainstream education, often assisted by funded programmes, without a formal statement in place.
Even where a statement is made and maintained, section 316 of EA 1996 prescribes that a child must nevertheless be educated in a mainstream school unless that is incompatible with the wishes of the child’s parent, or the provision of efficient education for the other children in the school. That said, this requirement does not prevent a child from being educated in an independent school (which is not a mainstream school, or an approved special school), if the cost is met otherwise than by a local authority (section 316A of EA 1996).
Ceasing to maintain a statement
A local authority is required to maintain a statement of SEN until it is no longer necessary. Where an authority decides to stop maintaining a statement it must give notice to the child's parent, who may appeal against the determination to the Tribunal. The Tribunal may dismiss the appeal, or order the local authority to continue to maintain the statement in its existing form or with such amendments as the Tribunal may determine.
If a Tribunal makes such an order, the local authority concerned must comply with it before the end of a prescribed period – see section 336A of EA 1996 and the Special Educational Needs Tribunal (Time Limits) (Wales) Regulations 2001 (SI 2001/3982).
The SEN Code of Practice for Wales
The SEN Code of Practice for Wales is made by the Welsh Ministers under sections 313 and 314 of EA 1996. This Code contains guidance to which local authorities and governing bodies of schools must have regard when exercising their statutory duties to identify, and assess children with SEN and make special provision for their education.
There are specific provisions relating to children who are being detained under the justice system: see sections 312A and 562-562J of EA 1996, noting the changes made (which are not all yet in force) by the Apprenticeships, Skills, Children and Learning Act 2009.
Further specific provision is also made for children who are looked after by a local authority. See, in this regard, the Children and Young Persons Act 2008.
Individuals over compulsory school age
The relevant law in relation to those over compulsory school age who have additional learning needs is largely found in the Learning and Skills Act 2000 (LSA 2000).
Unlike the position for individuals of compulsory school age, the duty to make provision for those over compulsory school age is mainly one for the Welsh Ministers as opposed to local authorities.
For the purposes of LSA 2000, a person has a learning difficulty if:
- he or she has a significantly greater difficulty in learning than the majority of persons of his or her age, or
- he or she has a disability which either prevents or hinders him or her from making use of facilities of a kind generally provided by institutions providing post-16 education or training (section 41(5) of LSA 2000).
As is the case for those who are of compulsory school age or under, a person is not to be taken to have a learning difficulty 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 has at any time been spoken in his or her home (section 41(6) of LSA 2000).
Where a local authority in Wales maintains a statement of SEN for a person and the Welsh Ministers believe that the person will leave school at the end of his or her last year of compulsory schooling to receive post-16 education or training or higher education, the Welsh Ministers have a duty to arrange for an assessment of the individual to be conducted at some point during the person’s last year of compulsory schooling (sections 140(1) and (2) of LSA 2000).
The Welsh Ministers also have a discretion to arrange an assessment of a person at any time if that person is:
- in his or her last year of compulsory schooling or is over compulsory school age but under 25;
- appears to the Welsh Ministers to have a learning difficulty; and
- receiving, or in the opinion of the Welsh Ministers is likely to receive, post-16 education or training or higher education (section 140(3) of LSA 2000).
As ‘assessment’ in these circumstances must result in a written report of the person’s educational and training needs and the provision required to meet them (section 140(4) of LSA 2000).
16-19 year olds
The Welsh Ministers have a general duty to secure proper facilities for the education, training and connected organised leisure-time occupation of 16-19 year olds (s31(1) of LSA 2000). Such facilities must be sufficient in quality and adequate in quantity to meet the reasonable needs of individuals (section 31(2) of LSA 2000). In making this provision, Welsh Ministers must have regard to the needs of persons with learning difficulties and the reports of any assessment carried out under s140 of LSA 2000 (section 41(1) of LSA 2000).
Further, the Welsh Ministers must secure boarding accommodation is available for those with learning difficulties where there are no alternative facilities which are sufficient in quantity and adequate in quality (section 41(2) of LSA 2000).
19-25 year olds
In the case of 19-25 year olds, the Welsh Ministers are under a duty to secure reasonable facilities for the education, training and connected organised leisure-time occupation (section 32(1) of LSA 2000). In making this provision, they must have regard to the needs of persons with learning difficulties and the reports of any assessment carried out under section 140 of LSA 2000 (section 41(1) of LSA 2000).
Further, the Welsh Ministers must secure boarding accommodation is available for those with learning difficulties where there are no other reasonable facilities (section 41(3) of LSA 2000).
The Equality Act 2010
Disability is one of the ‘protected characteristics’ included in the Equality Act 2010, which protects individuals from discrimination on that basis.
The term ‘disability’ is defined by section 6 of the Equality Act 2010. A person has a disability if:
- he or she has a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
Guidance on the implications of the Equality Act 2010 for education providers in Wales has been issued by the Equality and Human Rights Commission. Equality legislation impacts on all aspects of school and further education, including admissions, exclusions and education services, benefits and facilities.
Proposals for the future
The Welsh Government published a White Paper in May 2014 outlining proposals to introduce a new legislative framework for supporting children and young people with additional learning needs. It is intended that this will ultimately replace existing legislation for the assessment and provision of support for learners with special educational needs in schools and learning difficulties and/or disabilities of persons in post-16 education and training.