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• 20 Nov 2024

No

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Complex

We applied for our son's EHC plan last year and following the coproduction meeting in January, the SENCo submitted details for additional funding. The request for funding went to panel, got approved and the final amended EHC Plan was issued on 28/02/2024.

The SENCo recently sent the following email:

[XX]'s annual review is due this term.

As [XX] is in Year 2 (which is a Key stage transition to Year 3 Key Stage 2), his EHCP is due to be reviewed. As part of this process, we request an Educational Psychologist to assess and set new targets. Can you please return the consent form, if you agree to the EP visit. Otherwise the EP will not see him. We will do an annual review without the EP assessment.

So you are aware of the timeline - it is listed below

Timeline

• Parent sends in EP consent
• EP visits and assess child in school
• SENCo sets date for annual review and EP meeting for parents to attend
• EP meets with parents and SENCo - hold Annual review as part of this meeting (teacher and LSA attends this meeting) Typically lasts 1-1.5 hours
• SENCo amends EHCP paperwork and sends to parents
• SENCo sends revised EHCP paperwork to borough to update EHCP

Could you please advise on the following:

1. The SENCo seems to believe that the annual review is based on term(academic year) and not calendar(i.e months). Is there any reference to 'term' in the legislation?
2. We believe the annual review is not due until February(this is the timeframe we (parents) are working toward). The SENCO seems to be rushing to have the meeting to catch us unprepared. How can we push back on this?
3. The timeline described below seems to muddle several separate processes into one. Shouldn't the EP assessment be done separately ahead of the annual review? We would expect the findings from the EP assessment to be used to update the needs and targets in the EHCP, is this correct?
4. The SENCo's email seems to suggest that the EP is accountable for assessing and setting new targets. Our son has OT, SLT and Physio; does this mean the EP sets targets for all of these?
5. The SENCo suggests that she will amend the targets and interventions in our son's EHCP and then issue it to the LA to be rubber-stamped. Shouldn't the LA SEND team be part of the annual review and process of updating the EHCP?
6. We have heard from many parents that the SENCo seeks to remove as many interventions(without clear evidence of progress) as possible from children's EHCPs at annual reviews. Is that common and why? How can we protect ourselves against this?
7. Should we be arranging for other professional assessments (SLT, OT, Physio etc) to feed into the updated needs and targets?



Senate Questions

20 Nov 2024

This is helpful

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Comment

Post
• 30 Oct 2024

No

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Complex

03.04 [copied from web page]

If a CYP is enrolled at a maintained school or further education institution, the starting point would be to ask the maintained school or FEI to decide whether the CYP has ALN. 

Where it is brought to the attention, or otherwise appears to a maintained school or FEI that a CYP may have ALN they must gather information and make a decision, unless certain exceptions in s 11(3) ALNET apply or the CYP is a looked after Child (s 11 (5) ALNET): ss.11(1) & (2) 

GLOSSARY:  Looked after Child

In all other cases it will usually be an LA who must decide whether a CYP has ALN: s.13(1) ALNET (general), s.18(1) ALNET (Looked after child) s.40(2)(a) ALNET (detained persons), unless certain exceptions apply, under ss.13(2), 18(2) and 41(2)(a) ALNET. 

The main exceptions to the duty to decide whether a CYP has ALN include:

• Where a Young Person does not consent to the decision being made about them ss.11(3)(c), 13(2)(d), 41(2)(a) ALNET.
• A previous decision on whether the CYP has ALN has already been taken and:
  • The CYP’s needs have not materially changed since that decision was made; and
  • There is no new information that affects that decision.
• Where an IDP or EHCP is already being maintained and it has therefore already been decided that a CYP has ALN.



Senate Questions

30 Oct 2024

This is helpful

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Comment

Post
• 30 Oct 2024

Yes

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Simple

02.13

No. The duty to have regard is not a duty to achieve a particular result, but instead to take the wishes and feelings of the CYP or child’s parent into account as part of the decision-making process. In practice this should involve (para 4.9 ALN Code 2021):

1. seeking the child, their parent or young person’s views on how they wish to participate in the decisions ahead of those decisions being made;
2. providing information relevant to the decision to the child, their parent or young person in a way which enables that child, their parent or young person to understand it; 
3. encouraging the child, their parent or young person to participate fully in the process; 
4. using the child, their parent or young person’s views to inform the decisions; and
5. ensuring the child, their parent or young person has access to information and advice about ALN and the ALN system.

Where the maintained school or FEI or LA reach a different conclusion to the CYP or a child’s parent in respect of its various functions under ALNET, there is often a requirement to give reasons. The Nodi Guide sets out the instances where the duty to give reasons arises in more detail in the relevant sections later in the guide. 



Senate Questions

30 Oct 2024

This is helpful

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Comment

Post
• 30 Oct 2024

Yes

|

Simple

02.14  [This answer is copied over from a Word to htm webpage]

Those exercising functions under ALNET should:

• Seek to understand, how the child or young person wants to communicate their views, how they wish to participate and what support may be required to facilitate the child or young person to do so: para 4.13 ALN Code 2021. 
• Provide information relevant to the decision to the CYP or parent in a way which enables them to understand it: para 4.9 ALN Code 2021. 
  • The LA must make arrangements to make information and advice about the ALN system easily accessible: s 9 ALNET & paras 4.38, 6.15 - 6.24 ALN Code 2021.
  • Any person exercising functions under ALNET is required to provide CYP and parents with the information and support necessary to enable participation in decisions: s 6(c) ALNET. 
• Encourage a CYP or parent to participate fully in the process. Where a CYPs is to participate in a meeting to make decisions about their ALN the school, FEI or LA should work with the CYP to help them prepare for the meeting: para 4.24 ALN Code 2021.
• Use the CYP and/or parent’s views to inform decisions: para 4.9 ALN Code 2021. 

There may be occasions where a parent or Young Person lacks capacity. Lacking capacity has the same meaning as set out in the Mental Capacity Act 2005: s.83 (4) ALNET. In those cases, the LA is under a duty to provide for a representative to engage in arrangements for the child’s parent or Young Person: para 40 ALN Regs 2021 and that representative can appeal to ETW on their behalf: para 41 ALN Regs 2021. The LA must refer the representative to an independent advocacy service if the representative requests it: para 40 ALN Regs 2021. 

The general guidance in Chapter 4 ALN Code should also be followed by the ETW as it exercises its functions on an appeal: by virtue of both s 4(10) ALNET and to be consistent with the overriding objective to deal with cases fairly and justly. 

More: 12.03 What if the child, parent or young person does not have the capacity to understand matters relevant to an appeal? 02.12 Must schools, the LA (and ETW in an appeal) have regard to any particular factors when exercising their functions?



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

Yes

|

Simple

01.02 [This answer is copied over from a Word to htm webpage]

1. SEN is now ALN: Prior to the coming into force of ALNET, learning needs that called for educational training or provision additional to or different from those made generally for other learners of the same age were called ‘Special Educational Needs’ (SEN). Instead of SEN, ALNET uses the term ‘Additional Learning Needs’ (ALN). 
2. IDPs replace previous SEN provision such as school action, school action plus and statements of special educational needs: 
   • The SEN system in Wales was governed by the Education Act 1996, accompanying regulations and Special Educational needs Code of Practice. Under that system, children would be issued with a statutory document called a Statement of Special Educational Needs (SSEN) if their SEN were of a complexity which required the local authority (rather than their school) to determine what SEP was required and whether the school could reasonably be expected to make such provision within its own resources (SEN code of practice for Wales 8:13). A child would have a legal right to the provision in the SSEN. Those who did not meet the legal threshold to receive an SSEN would still have provision made, but statute did not give them a legal right to this. Enforcing delivery of provision for those without an SSEN was therefore more difficult. That led to disagreement about whether a child required an SSEN.
   • The ALN system introduces a general rule in Wales that every CYP with ALN is issued with a statutory document (now called and Individual Development Plan (IDP)), which gives them legally enforceable rights to provision. Their ALN does not have to meet the same minimum threshold of severity as was the case for those children who had a SSEN. As a rule, those with SEN who did not previously qualify for an SSEN will now qualify for an IDP. However, some IDPs will be produced by schools and some by local authorities. Issues therefore arise as to whether it should be a maintained school, FEI or LA that maintains the IDP. Issues also arise as to whether a CYP has ALN. More: 02.03 What is an IDP? 02.04 Do all CYP with ALN have an IDP? 05.01 Is there a prescribed form of IDP?
3. Most IDPs will be made and maintained by the mainstream school or FEI the CYP attends. The LA  make an IDP for those with ALN which cannot be adequately determined by the school or requires ALP the school would not be reasonably able to determine or secure. The LA will maintain an IDP for those with ALN requiring ALP the school would not be reasonably able to secure, looked after children, those subject to detention orders, those who are attending more than one provision (Dual Registered) and those not in a mainstream school/FEI (such as those below school age not in nurseries, electively home educated  or receiving education otherwise than in school (EOTIS)). More: Chapter 03: Who is responsible for CYP’s with ALN?
4. Where a parent opts to electively home educate (EHE) the LA may still be under an obligation to maintain an IDP for the CYP and secure provision. Under the old system and English system there is no obligation on the LA to make provision where parents decided to EHE. More: 03.11 Who is responsible for deciding whether a child being Electively Home Educated has ALN? 07.29 Is the LA under a duty to make ALP to fit with Elective Home Education (EHE)?
5. IDPs will not contain details of social care needs and provision or health needs and provision where this is not also ALN/ALP. EHCP’s in England contain sections in which social & health needs and provision are set out separately where these are not also SEP or SEN. These sections do not exist in an IDP. However, where social & health needs and provision are also ALN or ALP they will be included in an IDP under ALN or ALP. More: 07.02Can health or social care support also be ALP? 07.05 Are there any rules for coordinating health and social care support with ALP? 05.01 Is there a prescribed form of IDP?
6. IDPs can contain ALP provision to be made by parents: Elective Home Education Guidance (2023)  see p.7. In comparison, SSEN’s and EHCP’s should not set out any provision to be made by parents. The duty however remains on the LA to secure this ALP. In this context, the LA would satisfy its obligation to secure provision by way of agreement with parents and satisfying itself that parents are making this provision. More: 02.10 Does the LA have any duties towards a child who is electively home educated (EHE)? 09.53 Can parents insist on a hybrid arrangement between EHE and EOTIS? Also, ss.51(5) & 55 ALNET appear to envisage naming an independent school in the IDP as the organisation to provide ALP specified where the cost is to be met by parents.
7. IDP’s will only name a particular school in exceptional cases.  These cases may include naming a school for accessibility purposes, if a CYP requires support from staff with specialist expertise or if it is unreasonable for a more local school to provide the ALP specified in the IDP (ALN Code for Wales(2021) 23.59 and 23.67). More: 09.01 Does the IDP always have to name a school/placement? 09.20 What is the duty to favour mainstream maintained schools?
8. The presumption in favour of naming the maintained school requested by parents no longer applies: Under the old system, there was a general requirement that the LA name the maintained school the parents of a child with a SSEN requested unless the school was unsuitable for the child or the child’s attendance at the school would be incompatible with the efficient education of others with whom the child would be educated or the efficient use of resources: para 8 Schedule 27 Education Act 1996. There is no such provision in ALNET, however section9 of the Education Act 1996 continues to apply. This states that regard must be had that pupils should be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. There are different views on the extent to which this provision will continue to assist parents in having their preferred school named in the IDP. More: 09.11 Can the CYP/Parents of a child, request a particular placement? 09.12 Is there a presumption in favour of the CYP going to the school/institution that they or their parents want them to? 02.16 Will the operation of section 9 be the same under ALNET?



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

No

|

Complex

02.14 [Nodi shows the same as this, in some cases, the formatting carries over into the answer, see nested bullets below. However line spacing is a mess when published]

Those exercising functions under ALNET should:

• Seek to understand, how the child or young person wants to communicate their views, how they wish to participate and what support may be required to facilitate the child or young person to do so: para 4.13 ALN Code 2021. 
• Provide information relevant to the decision to the CYP or parent in a way which enables them to understand it: para 4.9 ALN Code 2021. 
  • The LA must make arrangements to make information and advice about the ALN system easily accessible: s 9 ALNET & paras 4.38, 6.15 - 6.24 ALN Code 2021.
  • Any person exercising functions under ALNET is required to provide CYP and parents with the information and support necessary to enable participation in decisions: s 6(c) ALNET. 
• Encourage a CYP or parent to participate fully in the process. Where a CYPs is to participate in a meeting to make decisions about their ALN the school, FEI or LA should work with the CYP to help them prepare for the meeting: para 4.24 ALN Code 2021.
• Use the CYP and/or parent’s views to inform decisions: para 4.9 ALN Code 2021. 

There may be occasions where a parent or Young Person lacks capacity. Lacking capacity has the same meaning as set out in the Mental Capacity Act 2005: s.83 (4) ALNET. In those cases, the LA is under a duty to provide for a representative to engage in arrangements for the child’s parent or Young Person: para 40 ALN Regs 2021 and that representative can appeal to ETW on their behalf: para 41 ALN Regs 2021. The LA must refer the representative to an independent advocacy service if the representative requests it: para 40 ALN Regs 2021. 

The general guidance in Chapter 4 ALN Code should also be followed by the ETW as it exercises its functions on an appeal: by virtue of both s 4(10) ALNET and to be consistent with the overriding objective to deal with cases fairly and justly. 

More: 
12.03 What if the child, parent or young person does not have the capacity to understand matters relevant to an appeal?
02.12 Must schools, the LA (and ETW in an appeal) have regard to any particular factors when exercising their functions?



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

Other

|

Other

Can't answer yes or no:

02.13 [Nodi shows a) b) c) etc]

No. The duty to have regard is not a duty to achieve a particular result, but instead to take the wishes and feelings of the CYP or child’s parent into account as part of the decision-making process. In practice this should involve (para 4.9 ALN Code 2021):

 

1. seeking the child, their parent or young person’s views on how they wish to participate in the decisions ahead of those decisions being made;
2. providing information relevant to the decision to the child, their parent or young person in a way which enables that child, their parent or young person to understand it; 
3. encouraging the child, their parent or young person to participate fully in the process; 
4. using the child, their parent or young person’s views to inform the decisions; and
5. ensuring the child, their parent or young person has access to information and advice about ALN and the ALN system.

 

Where the maintained school or FEI or LA reach a different conclusion to the CYP or a child’s parent in respect of its various functions under ALNET, there is often a requirement to give reasons. The Nodi Guide sets out the instances where the duty to give reasons arises in more detail in the relevant sections later in the guide. 



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

Yes

|

Simple

02.12 [Nodi answer shows: (a) (b) (c)]

Yes. Those exercising functions under ALNET (including schools and LAs) must have regard to (s 6 ALNET):

1. the views, wishes and feelings of the CYP or the child’s parent.
2. the importance of the child and the child's parent or the young person participating as fully as possible in decisions relating to the exercise of the function concerned
3. the importance of the child and the child's parent or the young person being provided with the information and support necessary to enable participation in those decisions.

The duty in s 6 ALNET applies to any “person exercising functions under this Part”. This would appear to include the ETW, whose main functions are set out later in Part 2 (in particular, ss 71 and 73), perhaps subject to argument as to whether the word “person” can properly be interpreted to include a court or tribunal. 



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

Yes

|

Simple

02.06 No. A child with ALN need not be educated in school where either:

1. the parent has chosen to provide the child’s education or 
2. if the LA considers it would not be appropriate for them to be educated in school: s. 53 ALNET.



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

Yes

|

Simple

01.03 

Legislation in Wales is drafted in both Welsh and English. Both language texts have equal standing.

Guidance as to the proper approach to take was provided by the Court of Appeal in R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWCA Civ 1759. From that decision, the following principles emerge:

1. Where legislation is enacted in both languages and the parties submit that there is or may be a “conflict, difference or distinction” between the two languages, then a detailed analysis of both may be necessary.
2. Where the court concludes that that there is a conflict, difference or distinction, then it must consider both languages and all permissible external sources (eg White Papers, consultation papers etc) with the aim of identifying the purpose of the legislation and must then seek to give effect to that purpose. 
3. Where it is not suggested that the language differs in meaning across the two versions, the court can work from either version, safe in the knowledge that either properly reflects the intention of the legislature. 
4. In considering either language version, the normal principles of statutory interpretation apply.



Senate Questions

30 Oct 2024

This is helpful

|

Comment

Post
• 30 Oct 2024

No

|

Simple

01.02 [Nodi - see screen shot - numbering isn't recognising sub clauses, and subclauses are sitting in the wrong position, and numbering isn't continuous]

1. SEN is now ALN: Prior to the coming into force of ALNET, learning needs that called for educational training or provision additional to or different from those made generally for other learners of the same age were called ‘Special Educational Needs’ (SEN). Instead of SEN, ALNET uses the term ‘Additional Learning Needs’ (ALN). 
2. IDPs replace previous SEN provision such as school action, school action plus and statements of special educational needs: 

• The SEN system in Wales was governed by the Education Act 1996, accompanying regulations and Special Educational needs Code of Practice. Under that system, children would be issued with a statutory document called a Statement of Special Educational Needs (SSEN) if their SEN were of a complexity which required the local authority (rather than their school) to determine what SEP was required and whether the school could reasonably be expected to make such provision within its own resources (SEN code of practice for Wales 8:13). A child would have a legal right to the provision in the SSEN. Those who did not meet the legal threshold to receive an SSEN would still have provision made, but statute did not give them a legal right to this. Enforcing delivery of provision for those without an SSEN was therefore more difficult. That led to disagreement about whether a child required an SSEN.
• The ALN system introduces a general rule in Wales that every CYP with ALN is issued with a statutory document (now called and Individual Development Plan (IDP)), which gives them legally enforceable rights to provision. Their ALN does not have to meet the same minimum threshold of severity as was the case for those children who had a SSEN. As a rule, those with SEN who did not previously qualify for an SSEN will now qualify for an IDP. However, some IDPs will be produced by schools and some by local authorities. Issues therefore arise as to whether it should be a maintained school, FEI or LA that maintains the IDP. Issues also arise as to whether a CYP has ALN. More: 02.03 What is an IDP? 02.04 Do all CYP with ALN have an IDP? 05.01 Is there a prescribed form of IDP?

1. Most IDPs will be made and maintained by the mainstream school or FEI the CYP attends. The LA  make an IDP for those with ALN which cannot be adequately determined by the school or requires ALP the school would not be reasonably able to determine or secure. The LA will maintain an IDP for those with ALN requiring ALP the school would not be reasonably able to secure, looked after children, those subject to detention orders, those who are attending more than one provision (Dual Registered) and those not in a mainstream school/FEI (such as those below school age not in nurseries, electively home educated  or receiving education otherwise than in school (EOTIS)). More: Chapter 03: Who is responsible for CYP’s with ALN?
2. Where a parent opts to electively home educate (EHE) the LA may still be under an obligation to maintain an IDP for the CYP and secure provision. Under the old system and English system there is no obligation on the LA to make provision where parents decided to EHE. More: 03.11 Who is responsible for deciding whether a child being Electively Home Educated has ALN? 07.29 Is the LA under a duty to make ALP to fit with Elective Home Education (EHE)?
3. IDPs will not contain details of social care needs and provision or health needs and provision where this is not also ALN/ALP. EHCP’s in England contain sections in which social & health needs and provision are set out separately where these are not also SEP or SEN. These sections do not exist in an IDP. However, where social & health needs and provision are also ALN or ALP they will be included in an IDP under ALN or ALP. More: 07.02Can health or social care support also be ALP? 07.05 Are there any rules for coordinating health and social care support with ALP? 05.01 Is there a prescribed form of IDP?
4. IDPs can contain ALP provision to be made by parents: Elective Home Education Guidance (2023)  see p.7. In comparison, SSEN’s and EHCP’s should not set out any provision to be made by parents. The duty however remains on the LA to secure this ALP. In this context, the LA would satisfy its obligation to secure provision by way of agreement with parents and satisfying itself that parents are making this provision. More: 02.10 Does the LA have any duties towards a child who is electively home educated (EHE)? 09.53 Can parents insist on a hybrid arrangement between EHE and EOTIS? Also, ss.51(5) & 55 ALNET appear to envisage naming an independent school in the IDP as the organisation to provide ALP specified where the cost is to be met by parents.
5. IDP’s will only name a particular school in exceptional cases.  These cases may include naming a school for accessibility purposes, if a CYP requires support from staff with specialist expertise or if it is unreasonable for a more local school to provide the ALP specified in the IDP (ALN Code for Wales(2021) 23.59 and 23.67). More: 09.01 Does the IDP always have to name a school/placement? 09.20 What is the duty to favour mainstream maintained schools?
6. The presumption in favour of naming the maintained school requested by parents no longer applies: Under the old system, there was a general requirement that the LA name the maintained school the parents of a child with a SSEN requested unless the school was unsuitable for the child or the child’s attendance at the school would be incompatible with the efficient education of others with whom the child would be educated or the efficient use of resources: para 8 Schedule 27 Education Act 1996. There is no such provision in ALNET, however section9 of the Education Act 1996 continues to apply. This states that regard must be had that pupils should be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. There are different views on the extent to which this provision will continue to assist parents in having their preferred school named in the IDP. More: 09.11 Can the CYP/Parents of a child, request a particular placement? 09.12 Is there a presumption in favour of the CYP going to the school/institution that they or their parents want them to? 02.16 Will the operation of section 9 be the same under ALNET?



Senate Questions

30 Oct 2024

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Comment

Post