The Additional Learning Needs Code and regulations: integrated impact assessment

Background

This impact assessment relates to the draft Additional Learning Needs (‘ALN’) Code (‘the ALN Code’) and the associated regulations as listed below:

• 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 ALN. This 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 the Welsh Ministers to issue a Code on ALN (the ALN Code) and provides a number of regulation-making powers to Welsh Ministers. The ALN Code and regulations are intended to underpin the implementation and operation of the new system.

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 Cymru on 2 March 2021, with a view to the provisions of the 2018 Act and regulations commencing from 1 September 2021, over a three year implementation period before they apply in full.

Development of policy

The draft ALN Code, including where it sets out the policy intention behind the proposed regulations, has been developed in the light of the five ways of working in the Well-being of Future Generations (Wales) Act 2015. It is intended to provide long term underpinning to a new statutory system for supporting children and young people with ALN. The mandatory requirements it proposes to impose, and the policy intention for future regulations that it describes, are designed to ensure that the system will apply consistently but will also have sufficient flexibility to accommodate innovation in educational practice and major developments, such as curriculum reform.

The requirements are focused on preventing children and young people from missing out on educational opportunities and the chance to fulfil their potential, by ensuring that they receive the provision called for by their ALN in a timely and efficient way, enabling them to participate in and benefit from learning.

The draft ALN Code’s approach directly supports and integrates with the key theme of ‘Ambitious and Learning’ within Prosperity for All and with the well-being objectives within that key theme and others. It, and the Act that it supports, have been developed in collaboration with our partners in the delivery of the requirements, including local authorities, health boards, schools and FEIs, early years providers, third sector representatives, unions, professional bodies and commissioners. A Transformation Programme has been developed to ensure that our partners have the capacity and understanding necessary to implement the requirements.

Given that they are the intended beneficiaries of the new system of support, we have also involved children, young people and their families in the development of the draft Code by undertaking targeted engagement events as part of the consultation we undertook in 2019.

Impact

The mandatory requirements in the draft ALN Code, the policy intention it sets out in relation to the draft regulations, relate to the following broad themes:

• timescales by which public bodies must complete certain duties
• delegation of functions to the management committees of pupil referral units
• the content of and template for statutory individual developments plans (‘IDPs’) which will replace the existing statutory plans and non-statutory plans
• factors and criteria for deciding whether is it necessary to prepare and maintain an IDP for a young person or to prepare and keep a plan for a detained person
• the provision to be made for a person detained in hospital under Part 3 of the Mental Health Act 1983
• a timelimit for requesting a local authority reconsideration of an IDP maintained by a school
• transfers of IDPs between public bodies
• arrangements for the avoidance and resolution of disagreements
• the creation of a statutory looked after children’s education (LACE) co-ordinator role
• the incorporation of IDPs into the personal education plans for looked after children.

The requirements are intended to ensure the smooth and effective operation of the new system. They have been developed in the light of the operation of the current SEN and LLD systems, in particular their evidenced deficiencies.

Financial implications

The financial implications of the new system introduced by the 2018 Act (including the incorporation of IDPs into personal education plans) were set out in the Regulatory Impact Assessment that accompanied the Act. The Regulatory Impact Assessments for the draft ALN Code and the regulations to be made under the 2018 Act will be produced at the point 4 in time for the laying of the draft ALN Code for approval by the Senedd.

Mechanism for delivery

The ALN Code will provide the necessary comprehensive guide to public bodies on their statutory functions in relation to ALN, including those set out in the Act and regulations made under it. As the ALN will also impose additional statutory requirements, it is itself a form of secondary legislation.

How have people most likely to be affected by the proposal been involved in developing it?

The draft ALN Code and regulations have been developed over a significant period of time. Contributions have been made to their development through regular meetings with external stakeholders, including a series of specially established groups of stakeholder representatives who will either have a role in operating the ALN system or will have an interest in the impact that it has. These have included representatives from local authorities, schools, FEIs, Estyn, the Children’s Commissioner, the Welsh Language Commissioner, the third sector and others. As part of the development and passage of the Act, two previous iterations of the draft ALN Code have been published and have been the subject of public scrutiny and comment. This has included the outcome of large scale public consultation events as well and a number of targeted engagement workshops with children, young people and their families.

What are the most significant impacts, positive and negative?

The three overarching objectives of the 2018 Act are to create:

1. a unified legislative framework to support all children of compulsory school age or below with ALN, and young people with ALN in school or further education (FE)
2. an integrated, collaborative process of assessment, planning and monitoring which facilitates early, timely and effective interventions
3. a fair and transparent system for providing information and advice, and for resolving concerns and appeals.

By contrast, the existing legislative systems for supporting children and young people with SEN or LDD, provide planning and support on a different bases for children and young people, depending on their age, educational setting and the severity or complexity of their needs. This inconsistency in approach acts as a barrier to integration and collaboration, undermines the timeliness and effectiveness of interventions, and results in adversarial climate which can appear as unfair and lacking in transparency.

The new ALN system is centred on children and young people from 0 to 25 years of age and places the learner at the heart of any decisions about their ALN and the additional learning provision (ALP) required to meet their needs. The new system lends itself to improved early identification of ALN and is expected will lead to improvements in timely interventions and delivery of suitable ALP. This combined will result in improved outcomes for children and people with ALN.

This legislation supports collaborative working from those sectors working with children, young people and their families. This includes education and health and social services, who will all play a crucial role in ensuring the delivery of effective child centred support for learners with ALN.

The mandatory requirements to be imposed by the draft ALN Code, the policy intent that it describes in relation to the use of various regulation-making powers included in the 2018 Act, have been designed to promote and underpin the achievement of the 2018 Act’s objectives.

Specifically, the requirements described in the draft ALN Code, seek to:

• 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
• provide for consistency in the way that plans are recorded by prescribing the mandatory content of IDPs and setting out mandatory templates for those plans
• 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
• establish what provision is to made for a person detained in hospital under Part 3 of the Mental Health Act 1983
• 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
• set out processes by which IDPs can transfer between bodies
• 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 draft ALN Code provides important advice on three statutory roles set out by the 2018 Act which together will ensure improved co-ordination and delivery of ALP for children and young people:

• The Early Years Additional Learning Needs Lead Officer (Early Years ALNLO) in local authorities
• The Additional Learning Needs Co-ordinator (ALNCo) in schools and FEIs
• The Designated Education Clinical Lead Officer (DECLo) in LHBs.

In the case of the ALNCo, the ALN Code reflects the requirements set out in the draft Additional Learning Needs (Wales) Regulations at regulations 27 – 30 with regard to the qualifications an ALNCo must have the functions the ALNCo must carry out or arrange to carry out. These requirements will help ensure a consistent approach in timely and well planned co-ordination of ALP and in turn will lead to improved outcomes for children and young people with ALN.

In light of the impacts identified, how will the proposal:

• maximise contribution to our well-being objectives and the 7 well-being goals?
• avoid, reduce or mitigate any negative impacts?

As noted above, the draft ALN Code and the requirements in it, are designed to promote and underpin the achievement of the 2018 Act’s objectives, which themselves relate directly to the Welsh Government’s well-being objectives. Furthermore, as also noted above, the 2018 Act and the legislative system it introduces, supports a number of the well-being goals. By ensuring that the guidance and requirements included in the draft ALN Code and draft regulations appropriately underpin the successful implementation of the new ALN system, the proposals should maximise the impact of the new ALN system and the contribution it makes to the well-being objectives and goals.

Transition to, and implementation of, the ALN system, including the draft requirements included in the draft ALN Code and draft regulations, will require considerable preparation on the part of local authorities, schools and FEIs in particular. To enable this preparation to take place, and mitigate any harmful impacts it might otherwise have had, the Welsh Government has established a comprehensive Transformation Programme including a £20 million package of investment.

How will the impact of the proposal be monitored and evaluated as it progresses and when it concludes?

The Welsh Government has appointed five ALN Transformation Leads whose role includes monitoring and reviewing implementation arrangements during the transition period.

A post-implementation review will form part of the Welsh Government’s overarching monitoring and evaluation model, which itself will consider implementation in stages, specifically:

• readiness – to assess the extent to which delivery agents are prepared for the changes
• compliance – to monitor how effectively organisations are adhering to the new legislative requirements once they take effect
• impact – to evaluate the extent to which the legislative and wider policy changes are being embedded and making an impact on outcomes for learners.

This compliance, impact monitoring and evaluation approach will be further supported though ongoing inspection and review arrangements led by Estyn.

I am satisfied that the impact of the proposed action has been adequately assessed and recorded.

Name of Deputy Director: Chris Jones
Department: Education and Public Services
Date: 2 March 2021