The Additional Learning Needs Code and regulations: children’s rights impact assessment

This impact assessment relates to the draft Additional Learning Needs Code (‘the draft ALN Code’) and the associated regulations as listed below, The Explanatory Memorandum shows the interplay of the provisions in the respective instruments:

• the draft Additional Learning Needs (Wales) Regulations 2021
• the draft Education Tribunal for Wales Regulations 2021
• the draft Education (PRU) (Management committees ETC)(Amendment) Regulations 2021
• the draft Independent Schools (Provision of Information) (Wales) (Amendment) Regulations 2021
• the draft Equality Act 2010 (Capacity of persons over compulsory school age and parents)(Wales) Regulations 2021  These were laid before the Senedd Cymru for approval on 2 March 2021.

The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (‘the 2018 Act’) makes provision for a new statutory framework for supporting children and young people with additional learning needs (‘ALN’).  It will replace existing legislation surrounding special education needs (‘SEN’) and the assessment of children and young people with learning difficulties and/or disabilities (‘LDD’) in post-16 education and training.

The 2018 Act requires Welsh Ministers to issue, and may from time to time revise, a code on ALN. The draft ALN Code focuses on describing the functions placed on relevant persons by the Act and those in the draft regulations. In addition, the draft ALN Code itself imposes requirements on local authorities, governing bodies of maintained schools and further education institutions (‘FEIs’) in Wales.  It also gives guidance on the exercise of these functions. 

It is intended that the draft ALN Code and draft regulations will be laid before the Senedd on the 2 March 2021, with a view to the provisions of the 2018 Act and regulations commencing from 1 September 2021, with a three year implementation period before they apply in full.

Effect of the proposal on lives of children

Overall, implementation of the draft ALN Code, proposed regulations and the 2018 Act is intended to deliver the following positive impacts for children and young people:

• a unified, equitable system across the 0 to 25 age range, who have ALN, different education providers and varying levels of need, thereby removing inconsistency and unfairness
• a more flexible, responsive process of ongoing assessment, enabling provision for the individual learner to evolve over time in accordance with their changing needs
• a more person-centred approach, placing the child or young person’s views at the heart of the process and involving them and their families in the planning, intervention, and review process from the onset
• better support and access to information and advice for children, young people and their families to understand the ALN process and make informed choices
• the avoidance of duplication arising from plans that do substantially the same thing and integrate where possible and appropriate, existing plans and interventions delivered for children and young people
• improved collaborative working between agencies to plan their interventions, agree priorities, and ensure appropriate resources are made available in time to make a difference
• reductions in the likelihood of disputes arising by developing stronger partnership working with parents and promoting a culture of transparency, which should encourage greater trust between parents, education providers and local authorities
• reductions in the number of appeals by ensuring that disagreements can be resolved at the earliest possible opportunity
• retention and extension of rights of appeal to the Tribunal as an ultimate safeguard in relation to the adequacy of the support provided to every child and young person who has ALN, not just those who have complex needs.

More specifically, the requirements described in the draft ALN Code, including the policy intent that it describes in relation to the use of various regulation-making powers included in the 2018 Act seek to:

1. ensure that the identification and planning for a child or young person’s needs occurs in a timely way by setting timescales around the performance of public duties in this regard

2. provide for consistency in the way that plans are recorded by prescribing the mandatory content of individual development plans (IDPs) and setting out mandatory templates for those plans

3. establish a consistent set of factors and criteria to be used when determining whether it is necessary to provide an IDP for certain young people and detained persons

4. establish what provision is to made for a person detained in hospital under Part 3 of the Mental Health Act 1983

5. allow an appropriate amount of time for children, their parents, or young people to request that a local authority reconsider the decisions made by schools or the IDP that they prepare

6. set out processes by which IDPs can transfer between bodies

7. provide certain standards in relation to arrangements for the avoidance and resolution of disagreements and the provision of advocacy services, to facilitate equal access to these things and to minimise the occurrence and impact of disagreements.

The drafting of the draft ALN Code and draft regulations have also been guided by giving effect to the policy intentions behind the Act and to the United Nations Convention on the Rights of the Child (‘UNCRC’) rights. 

For example, the setting of timescales referred to in paragraph 2.2(a) above. On this, there is a balance to be struck between providing for duties to be performed very quickly (so that children and young people can get the provision they need as soon as possible) and what is fair and reasonable for the public body to do in all the possible circumstances which might arise.  So in some instances, the timescale in which an action must be taken for one learner differs to that for another (for example, there are different periods according to the identity of the body subject to the duty and according to what the duty is).  However, there are reasons for these differences, generally related to what is feasible for the public body concerned in the likely circumstances and there are other proposed requirements or guidance which seek to mitigate differences (for example, even where a body has a longer timescale to comply than there is for another similar situation, there is still a requirement for the action to be done “promptly” in any event). 

In relation to paragraph 2.2(c) above, and when it is necessary for a young person with ALN to have an IDP, the proposals would not give an automatic nor ongoing (up to age 25) entitlement to all such young people. However, the approach has been informed by seeking to give equity of access to education or training compared to young people who do not have ALN.

For the draft regulations on when an IDP will be necessary for a detained person (paragraph 2.2(d) above) and on what provision to make for a person detained in hospital under Part 3 of the Mental Health Act 1983 (paragraph 1.2(d) above), the general approach proposed is to give the same rights as other children and young people, within the limits of the Act and only with modifications which are appropriate in light of the different situation.

Overall, in formulating the proposals and drafting the draft ALN Code, although there have been judgements to be made on some matters as to entitlements, it is considered that the proposals give effect to the relevant UNCRC rights. 

Effect of proposal on different groups of children

Children and young people with ALN are at a distinct disadvantage by comparison with those who do not have ALN. Educational attainment levels among those who have ALN are significantly below the average and their life chances are significantly impaired as a consequence. Furthermore. Children and young people currently recorded as having SEN are twice as likely to be eligible for free school meals as those who do not.

The 2018 Act’s provisions and the secondary legislation contained in the draft ALN Code and draft regulations provides children and young people with ALN with a system of support that puts them at the centre and which is designed to ensure that their needs are determined, and the provision necessary to meet those needs is planned for in a more timely, collaborative, consistent and equitable way. Our proposals aim to remove education inequalities by ensuring that all children and young people are able to achieve their educational potential and will have a have a disproportionately positive effect on children and young people from low income households.

Specific provision is also made in the draft ALN Code (Chapter19) for detained persons – including those detained under the Mental Health Act 1983 – in the light of their particular circumstances.

Evidence used to inform assessment

The decision to reform the current special educational needs (SEN) system is based on a wide range of evidence from a series of reports and reviews as well as previous consultation and engagement with stakeholders outlined elsewhere in this impact assessment.

Between 2003 and 2007, a three-part review of SEN was undertaken by the former Education, Lifelong Learning and Skills (ELLS) Committee of the National Assembly for Wales and associated reports were published in the following order:

1. Early Identification and Intervention, November 2004
2. Statutory Assessment Framework (Statementing), May 2006
3. Transitions, March 2007.

The evidence presented in the Committee reports was informed by earlier reports from the Audit Commission (Special educational needs: A mainstream issue, 2002) and Estyn (Support for Children with Special Educational Needs: An Estyn Overview, 2003). Taken together, these reports concluded that in relation to the current system of SEN:

• the assessment process associated with statements is inefficient, bureaucratic, costly and insufficiently child-centred or user-friendly
• needs are often identified late and interventions are not sufficiently timely or effective
• families feel that they often have to battle to get the right support for their child and do not know where to turn for information and advice.

In response to the Committee report, the then Welsh Assembly Government conducted a wide-ranging preliminary consultation on possible reforms to the existing system of support for SEN and LDD (Statements or Something Better, 2007). Subsequently, a number of projects were set up to develop and trial new systems and approaches to help shape future policy and legislation. These included:

• four reform pilot schemes involving eight local authorities aimed at developing and trialling a person-centred approach to planning (using an IDP) for children and young people with SEN together with a new quality assurance system and an on-line planning and assessment tool
• a ‘right of appeal for the child’ pilot scheme involving two local authorities.

The responses to the Welsh Government’s consultations on the Forward in Partnership for Children and Young People with Additional Needs (2012), the White Paper (2014) and the draft Bill (2015), the considerations and comments made in relation to the 2018 Act during its scrutiny by the National Assembly and the wider engagement with stakeholders have supported the development of the Act, the draft ALN Code and the wider ALN Transformation Programme.

Consultation with children and young people

The principal consultation conducted in relation to the new ALN system was that conducted in relation to the draft Additional Learning Needs and Education Tribunal (Wales) Bill. The consultation ran from 6 July to 18 December 2015.

To support the consultation, a draft ALN Code and an outline of the possible timescales for implementation of the proposed new system were published.

A consultation document for children and young people was published along with an easy read explanation of the draft Bill. These documents supported the delivery of bespoke participation workshops with children, young people and their parents/carers. A total of 23 workshops took place.

During the workshops the views of children and young people were elicited separately from those of their parents/carers to ensure that their views were accurately recorded. There were 19 workshops for children and young people, held at 16 settings, with a total of 222 participants. Workshops took place at special schools, primary schools, secondary schools, FE settings and a pupil referral unit, as well as with a group of looked after children and home educated children.

There were four workshops for adults with a direct interest in the legislation; a total of 45 adults participated. The sessions included a group of foster carers, a support group consisting of parents with statemented children, an early year’s group and a group of home educating parents.

Each workshop was structured to provide participants with the information and understanding to allow them to make empowered decisions when responding to the ten set consultation questions, which reflected the ten core aims of the reform proposals. While there was an overall high level of support, there was a difference between the responses of the children/young people, and the adults.

In addition to the series of workshops with children, young people and their carers, the Welsh Government hosted two national events in North and South Wales, which were attended by 158 people; and delivered a programme of informal, targeted sessions with key stakeholders from across the public services and third sector.

An easy read and a children and young people’s version consultation document on the draft ALN Code, the draft Education Tribunal for Wales and the draft Additional Learning Needs Co-ordinator regulations were developed by the Welsh Government for publication.  In addition, a series of bespoke participation workshops with children, young people and their families will take place during the consultation period.  Comments and feedback received from children and young people during the consultation period were considered and used to refine the draft ALN Code and regulations as appropriate. 

There were 15 workshops for children and young people, these were held in 11 different settings throughout Wales. There were a total of 167 of learner participants.

There were also 7 workshops for parents with a direct interest in the draft ALN Code, and throughout the 6 settings in all regions of Wales we had a total of 61 participants

These are just a few examples of the views of some of the Children and Young People that took part in the consultation, their comments included:

• It’s important that parents and teachers are involved
• Yes, the ALN reforms will help me learn
• We all need different help that works for us and people need to understand what our needs are
• It is really important that people listen to us
• It is good that they will recognise I need to have my needs met even if I don’t have a diagnosis.

Overall impact on children’s rights

As required by the Rights of Children and Young Persons (Wales) Measure 2011, the draft ALN Code has been developed by the Welsh Ministers with due regard to the requirements of the UNCRC and its Optional Protocols.

In addition, the development of the draft ALN Code has also taken into account the requirements of the United Nations Convention on the Rights of Disabled People (UNCRDP). Local authorities, health boards and NHS trusts have specific duties under the 2018 Act to have due regard to the UNCRC and UNCRDP and these are set out in Chapter 5 of the draft ALN Code.

The principles of the Conventions are given effect in the 2018 Act and Code, and therefore in exercising their functions under the 2018 Act and in compliance with the 2018 Act, local authorities, schools, FEIs and NHS bodies are likely to be giving effect to relevant articles under the Conventions.

For example, article 12 of the UNCRC provides:

• States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child
• for this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This is given effect in the 2018 Act, and explained in the relevant chapters of the draft ALN Code, by (amongst other things):

• the duty under section 6 of the 2018 Act about involving and supporting children, their parents and young people (see Chapter 4 of the draft ALN Code)
• duties under section 9 of the 2018 Act about providing children and young people (as well as others) with information and advice about ALN and the system provided for by Part 2 of the 2018 Act (see Chapter 6 of the draft ALN Code), to facilitate their participation in it
• children and young people’s rights to make an appeal to the Tribunal under sections 70 and 72 of the 2018 Act (see Chapter 33 of the draft ALN Code) including, in the case of a child lacking capacity, through a case friend under section 85 of the 2018 Act (Chapter 30 of the draft ALN Code).

Chapter 5 of the draft ALN Code sets out that, in order to embed the rights under those Conventions further, there are specific duties on local authorities and NHS bodies (under Sections 7 and 8 of the 2018 Act) which requires them to have due regard to:

• part 1 of the UNCRC when exercising functions under the 2018 Act in relation to a child or young person
• the UNCRPD and its optional protocol, when exercising functions under the 2018 Act in relation to a disabled child or young person. 

The draft ALN Code sets out guidance on the articles of the UNCRC which are most likely to be relevant to a local authority or NHS body’s consideration (although the relevance of the rights under the UNCRC will depend upon the precise context in which the Convention is being considered):

• article 1 – All rights of children under convention
• article 2 – Non – discrimination
• article 3 – Best interests of the child
• article 4 – Rights made available to children
• article 12 – Respect for the views of the child
• article 13 – Freedom of expression
• article 23 – Disabled children
• article 28 – Education
• article 29 – Goals of education.

Relevant UNCRC articles and way in which rights under these articles are supported

The mandatory requirements and statutory guidance set out in the draft ALN Code supports the following UNCRC articles:

Article 1 - Everyone under 18 years of age has all the rights in this Convention

The draft ALN Code and draft regulations support the implementation of the 2018 Act which introduces an equitable system whereby all children and young people up to the age of 25 with ALN, regardless of the complexity of their needs, will have a statutory plan (the IDP).

The 2018 Act also affords the right to appeal to children and young people up to the age of 25 who attend, or wish to attend, FEIs or specialist post-16 institutions; providing such appeal rights to the latter group of learners for the first time. Chapter 33 of the draft ALN Code sets out the detail in relation to these rights of appeal.

Article 2 - The Convention applies to everyone whatever their race, religion, abilities, whatever they think or say and whatever type of family they come from

The draft ALN Code and Act apply in respect of children and young people ordinarily resident in Wales aged 0 to 25, who are of compulsory school age or below, or are over compulsory school age and are in school or pursuing FE. This includes specific provision for children looked after by a local authority, or who are detained (including those detained under the Mental Health Act 1983. Some provisions also apply in respect of children or young people resident in England who attend maintained schools or FEIs in Wales.

The implementation of the provisions of the draft ALN Code, Act and draft regulations will ensure that every child and young person with ALN, of compulsory school age or below, or over compulsory school age and in school or FE, is entitled to a statutory IDP to support their learning, regardless of the severity or complexity of their needs.

Article 3 - All organisations concerned with children should work towards what is best for each child

To encourage collaboration and ensure that organisations work towards what is best for each child, where a local authority requests help or information from another specified body – including, for example, another local authority, governing body of a maintained school or FEI, or certain health bodies – in the exercise of their ALN functions, that body must comply with the request (unless specified circumstances apply) with a timescale set out in the draft ALN Code. This is essential to ensuring that needs are identified early and the right support is put in place to enable children and young people to achieve the best possible outcomes.

In addition, NHS bodies in Wales will be under a new duty to consider when asked, and again within a timescale specified the draft ALN Code,  whether there is any relevant treatment or service that is likely to be of benefit in addressing a learner’s ALN. Any treatment or service so identified must be included in the learner’s IDP and the health body must secure the provision of the treatment or service.

The new ALNCo, DECLO, and Early Years ALN Lead Officer roles, the details of       which are set out in Chapters 8, 9, and 10 respectively, will help to foster improved

working relationships and practices between agencies who work with children to get the best outcome for the child or young person. The draft ALN Code provides further guidance to professionals to support effective multi-agency working.

Article 4 - Governments should make these rights available to children

The 2018 Act provides rights for children, their parents and young people to appeal to the Education Tribunal against a range of decisions of the local authority in relation to ALN matters, IDPs and discrimination. Chapter 33 of the draft ALN Code provides details about this.

The 2018 Act also places a duty on persons exercising functions under it about involving and supporting children and their parents, and young people in the decisions made under the 2018 Act, including in the development of the IDP. The ALN Code sets out various requirements in relation to the provision of information and documents and the notification of decision, to children and young people.

In addition, the 2018 Act provides for a ‘case friend’ to be appointed by order of the Tribunal where the child lacks capacity. Whilst it is recognised that for the most part, appeals will be brought on behalf of children by their parents, where this is not the case, a case friend will still allow the child to exercise appeal rights and other rights under the 2018 Act. Chapter 30 provides more details in relation to this.

Young people over compulsory school age with ALN are given the right to make their own decisions in relation to their ALN, including the right to withhold their consent to a decision about their ALN being taken by an educational institution or local authority.

This reflects the fact that these young people are no longer required to be in

education and could reasonably expect to determine their own educational future. The Act provides for regulations to be made in relation to young people who lack capacity to take decisions themselves.   A new Chapter (31) within the draft ALN Code has been developed which relates representatives for parents of children and young people who lack capacity in relation to the 2018 Act. The draft Equality Act 2010 (Capacity of persons over compulsory school age and parents)(Wales) Regulations 2021 have also been developed to supplement the procedural framework in Schedule 17 to the Equality Act 2010 (“the  2010 Act”). The regulations provide persons over compulsory school age and parents who lack capacity with the right to bring a claim in relation to disability discrimination etc. under that Schedule. The regulations do this by providing that a representative can bring a claim on behalf of the parent or person over compulsory school age who lacks capacity. For the purposes of the regulations, a person lacks capacity within the meaning of the Mental Capacity Act 2005, namely, when they lack mental, not legal capacity.

Article 12 - Children have the right to say what they think should happen, when adults are making decisions that affect them, and to have their opinions taken into account

The draft ALN Code will ensure that the child’s and young person’s voice is at the heart of decisions made about them and the planning that will ensure their ALN is met. It builds on the requirement imposed by 2018 Act that the views, wishes and feelings of children and young people are taken into account, for example when preparing an IDP and when reviewing it.

In particular, Chapter 4 of the draft ALN Code explains the duties on persons exercising functions under Part 2 of the 2018 Act in relation to a child or young person to involve and support the child and their parent or the young person when exercising those functions. This includes guidance on the duties in Section 6 of the 2018 Act to have regard to:

• the views, wishes and feelings of the child and the child’s parent or the young person
• 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
• the importance of the child and the child’s parent or young person being provided with the information and support required to enable participation in those decisions.

Chapter 4 of the draft ALN Code also provides guidance to local authorities, schools, FEIs and NHS bodies to consider how they can encourage children and young people to participate in all aspects of the ALN system in a meaningful way.  Supporting children and young people to participate meaningfully will help them to:

• feel confident that their views, wishes and feelings are listened to and valued, even if they find it difficult to get these across
• have an awareness of their rights and the support and services available to them
• develop a sense of responsibility and control over their learning.

Chapter 23 of the draft ALN Code states that a local authority, school or FEI preparing or revising an IDP must use the standard form at Annex A of the draft ALN Code for the IDP – except where the IDP is for a looked after child (in which case, a local authority must use the template at Annex B of the draft ALN Code).  The mandatory ‘Section 1C: One-page profile’ of the proposed IDP template is primarily aimed at setting out a summary of the child, child’s parent or young person’s views, wishes and feelings in relation to their ALN, ALP and education and training. This could include details about play, health, independence, communication, the people that the child or young person considers important to them (family, friends or paid staff), friendships, aspirations about, for example, education and career, independent living and community participation, or anything else the child, child’s parent or young person considers important.

The 2018 Act also gives local authorities a duty to refer children and young people to an independent advocacy service on request. Chapter 32 provides more details in relation to this duty

Article 13 - Children have the right to get and to share information as long as the information is not damaging to them or to others

The 2018 Act provides that local authorities will be required to make arrangements for providing children, young people and others with information and advice about ALN and the system set out in the 2018 Act. Local authorities will be required to take reasonable steps to make known these arrangements to various people. There are also duties on governing bodies to make these arrangements known to their learners and others. The draft ALN Code proposes various points at which details of these arrangements must be given to children and young people.

These arrangements will support children and young people to have a say about what they think should happen (see article 12). In broad terms, such information has to be given to children with capacity to understand the subject matter and there is provision for giving it to case friends in instances where the child lacks that capacity.  

Article 23 - Children who have any kind of disability should have special care and support so that they can lead full and independent lives

The 2018 Act provides that a person will have ALN if he or she has a learning difficulty or disability that calls for ALP. Where a child has ALN, a school or local authority will be required to prepare and maintain an IDP for them and secure the ALP it includes, as well as, if necessary, a place at a particular school or other institution, or board and lodging. The draft ALN Code provides guidance on the identification of ALN and ALP (in Chapter20) and prescribes or describes a large number of requirements on local authorities, schools and FEIs in relation to preparation and maintenance of IDPs and the provision of ALP for children with ALN.

Article 28 - Children have a right to an education. Discipline in schools should respect children’s human dignity. Primary education should be free. Wealthy countries should help poorer countries achieve this

The 2018 Act and draft ALN Code provides for a system of support that enables children, and young people in school or pursuing further education, in Wales up to the age of 25 who have ALN, to access and fully benefit from the educational opportunities that are available to them and their peers.

Article 29 - Education should develop each child’s personality and talents to the full. It should encourage children to respect their parents, and their own and other cultures.

The provisions in the 2018 Act are based on the principle that every child and young person should be supported to achieve their educational potential. The statutory IDP will help to ensure that every child and young person with ALN in compulsory and further education will receive the provision they require to do so.

Negative impact on children's rights arising from the proposal

We have identified no negative impacts of these proposals on children and young people.