Children and Families Bill (HC Bill 131)

(b) the outcomes sought for him or her;

(c) the special educational provision required by him or her;

(d) any health care and social care provision of a prescribed description
required by him or her.

(3) 5In making a decision for the purposes of this section in relation to a young
person aged over 18, a local authority must have regard to his or her age.

(4) Regulations may make provision about the preparation, content and
maintenance of EHC plans.

38 Preparation of EHC plans: draft plan

(1) 10Where a local authority is required to secure that an EHC plan is prepared for
a child or young person, it must consult the child’s parent or the young person
about the content of the plan during the preparation of a draft of the plan.

(2) The local authority must then—

(a) send the draft plan to the child’s parent or the young person, and

(b) 15give the parent or young person notice of his or her right to—

(i) make representations about the content of the draft plan, and

(ii) request the authority to secure that a particular school or other
institution within subsection (3) is named in the plan.

(3) A school or other institution is within this subsection if it is—

(a) 20a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) 25an institution approved by the Secretary of State under section 41
(independent special schools and special post-16 institutions:
approval).

(4) A notice under subsection (2)(b) must specify a period before the end of which
any representations or requests must be made.

(5) 30The draft EHC plan sent to the child’s parent or the young person must not—

(a) name a school or other institution, or

(b) specify a type of school or other institution.

39 Finalising EHC plans: request for particular school or other institution

(1) This section applies where, before the end of the period specified in a notice
35under section 38(2)(b), a request is made to a local authority to secure that a
particular school or other institution is named in an EHC plan.

(2) The local authority must consult—

(a) the governing body, proprietor or principal of the school or other
institution,

(b) 40the governing body, proprietor or principal of any other school or other
institution the authority is considering having named in the plan, and

(c) if a school or other institution is within paragraph (a) or (b) and is
maintained by another local authority, that authority.

(3) The local authority must secure that the EHC plan names the school or other
institution specified in the request, unless subsection (4) applies.

(4) This subsection applies where—

(a) the school or other institution requested is unsuitable for the age,
5ability, aptitude or special educational needs of the child or young
person concerned, or

(b) the attendance of the child or young person at the requested school or
other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) 10the efficient use of resources.

(5) Where subsection (4) applies, the local authority must secure that the plan—

(a) names a school or other institution which the local authority thinks
would be appropriate for the child or young person, or

(b) specifies the type of school or other institution which the local authority
15thinks would be appropriate for the child or young person.

(6) Before securing that the plan names a school or other institution under
subsection (5)(a), the local authority must (if it has not already done so)
consult—

(a) the governing body, proprietor or principal of any school or other
20institution the authority is considering having named in the plan, and

(b) if that school or other institution is maintained by another local
authority, that authority.

(7) The local authority must, at the end of the period specified in the notice under
section 38(2)(b), secure that any changes it thinks necessary are made to the
25draft EHC plan.

(8) The local authority must send a copy of the finalised EHC plan to—

(a) the child’s parent or the young person, and

(b) the governing body, proprietor or principal of any school or other
institution named in the plan.

40 30Finalising EHC plans: no request for particular school or other institution

(1) This section applies where no request is made to a local authority before the
end of the period specified in a notice under section 38(2)(b) to secure that a
particular school or other institution is named in an EHC plan.

(2) The local authority must secure that the plan—

(a) 35names a school or other institution which the local authority thinks
would be appropriate for the child or young person concerned, or

(b) specifies the type of school or other institution which the local authority
thinks would be appropriate for the child or young person.

(3) Before securing that the plan names a school or other institution under
40subsection (2)(a), the local authority must consult—

(a) the governing body, proprietor or principal of any school or other
institution the authority is considering having named in the plan, and

(b) if that school or other institution is maintained by another local
authority, that authority.

(4) The local authority must also secure that any changes it thinks necessary are
made to the draft EHC plan.

(5) The local authority must send a copy of the finalised EHC plan to—

(a) the child’s parent or the young person, and

(b) 5the governing body, proprietor or principal of any school or other
institution named in the plan.

41 Independent special schools and special post-16 institutions: approval

(1) The Secretary of State may approve an institution within subsection (2) for the
purpose of enabling the institution to be the subject of a request for it to be
10named in an EHC plan.

(2) An institution is within this subsection if it is—

(a) an independent educational institution (within the meaning of Chapter
1 of Part 4 of ESA 2008)—

(i) which has been entered on the register of independent
15educational institutions in England (kept under section 95 of
that Act), and

(ii) which is specially organised to make special educational
provision for students with special educational needs, or

(b) a special post-16 institution which is not an institution within the
20further education sector or a 16 to 19 Academy.

(3) The Secretary of State may approve an institution under subsection (1) only if
its proprietor consents.

(4) The Secretary of State may withdraw approval given under subsection (1).

(5) Regulations may make provision about giving and withdrawing approval
25under this section, in particular—

(a) about the types of special post-16 institutions which may be approved
under subsection (1);

(b) specifying criteria which an institution must meet before it can be
approved under subsection (1);

(c) 30about the matters which may or must be taken into account in deciding
to give or withdraw approval;

(d) about the publication of a list of all institutions who are approved
under this section.

42 Duty to secure special educational provision in accordance with EHC Plan

(1) 35A local authority that maintains an EHC plan for a child or young person must
secure the special educational provision specified in the plan.

(2) Subsection (1) does not apply if the child’s parent or the young person has
made suitable arrangements.

43 Schools and other institutions named in EHC plan: duty to admit

(1) 40Subsection (2) applies if one of the following is named in an EHC plan—

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41.

(2) 5The governing body, proprietor or principal of the school or other institution
must admit the child or young person for whom the plan is maintained.

(3) Subsection (2) has effect regardless of any duty imposed on the governing
body of a school by section 1(6) of SSFA 1998.

(4) Subsection (2) does not affect any power to exclude a pupil or student from a
10school or other institution.

44 Reviews and re-assessments

(1) A local authority must review an EHC plan that it maintains—

(a) in the period of 12 months starting with the date on which the plan was
first made, and

(b) 15in each subsequent period of 12 months starting with the date on which
the plan was last reviewed under this section.

(2) A local authority must secure a re-assessment of the educational, health care
and social care needs of a child or young person for whom it maintains an EHC
plan if a request is made to it by—

(a) 20the child’s parent or the young person, or

(b) the governing body, proprietor or principal of the school, post-16
institution or other institution which the child or young person attends.

(3) A local authority may also secure a re-assessment of those needs at any other
time if it thinks it necessary.

(4) 25Subsections (1) and (2) are subject to any contrary provision in regulations
made under subsection (7)(b).

(5) In reviewing an EHC plan maintained for a young person aged over 18, or
deciding whether to secure a re-assessment of the needs of such a young
person, a local authority must have regard to his or her age.

(6) 30During a review or re-assessment, a local authority must consult the parent of
the child, or the young person, for whom it maintains the EHC plan.

(7) Regulations may make provision about reviews and re-assessments, in
particular—

(a) about other circumstances in which a local authority must or may
35review an EHC plan or secure a re-assessment (including before the
end of a specified phase of a child’s or young person’s education);

(b) about circumstances in which it is not necessary for a local authority to
review an EHC plan or secure a re-assessment;

(c) about amending or replacing an EHC plan following a review or re-
40assessment.

(8) Regulations under subsection (7) about re-assessments may in particular apply
provisions of or made under this Part that are applicable to EHC needs
assessments, with or without modifications.

(9) Regulations under subsection (7)(c) must include provision applying section
33 (mainstream education for children and young people with EHC plans) to a
case where an EHC plan is to be amended following a review.

45 Ceasing to maintain an EHC plan

(1) 5A local authority may cease to maintain an EHC plan for a child or young
person only if—

(a) the authority is no longer responsible for the child or young person, or

(b) the authority determines that it is no longer necessary for the plan to be
maintained.

(2) 10The circumstances in which it is no longer necessary for an EHC plan to be
maintained for a child or young person include where the child or young
person no longer requires the special educational provision specified in the
plan.

(3) When determining whether a child or young person no longer requires the
15special educational provision specified in his or her EHC plan, a local authority
must have regard to whether the educational outcomes specified in the plan
have been achieved.

(4) In determining whether it is no longer necessary for an EHC plan to be
maintained for a young person aged over 18, a local authority must have
20regard to his or her age.

(5) A local authority may not cease to maintain an EHC plan for a child or young
person until—

(a) after the end of the period allowed for bringing an appeal under section
50 against its decision to cease to maintain the plan, where no such
25appeal is brought before the end of that period;

(b) after the appeal has been finally determined, where such an appeal is
brought before the end of that period.

(6) Regulations may make provision about ceasing to maintain an EHC plan, in
particular about—

(a) 30other circumstances in which it is no longer necessary for an EHC plan
to be maintained;

(b) circumstances in which a local authority may not determine that it is no
longer necessary for an EHC plan to be maintained;

(c) the procedure to be followed by a local authority when determining
35whether to cease to maintain an EHC plan.

46 Maintaining an EHC plan after young person’s 25th birthday

(1) A local authority may continue to maintain an EHC plan for a young person
until the end of the academic year during which the young person attains the
age of 25.

(2) 40“Academic year” means the period of twelve months ending on the prescribed
date.

47 Release of child or young person for whom EHC plan previously maintained

(1) This section applies where—

(a) a child or young person who has been subject to a custodial sentence is
released,

(b) on the release date, a local authority in England becomes responsible
for him or her, and

(c) 5an EHC plan was maintained for him or her immediately before the
start of the custodial sentence.

(2) The local authority must—

(a) maintain the plan, and

(b) review the plan as soon as reasonably practicable after the release date.

(3) 10Subsection (2)(b) is subject to any contrary provision in regulations under
section 44(7)(b).

48 Personal budgets

(1) A local authority that maintains an EHC plan, or is securing the preparation of
an EHC plan, for a child or young person must prepare a personal budget for
15him or her if asked to do so by the child’s parent or the young person.

(2) The authority prepares a “personal budget” for the child or young person if it
identifies an amount as available to secure particular provision that is
specified, or proposed to be specified, in the EHC plan, with a view to the
child’s parent or the young person being involved in securing the provision.

(3) 20Regulations may make provision about personal budgets, in particular—

(a) about requests for personal budgets;

(b) about the amount of a personal budget;

(c) about the sources of the funds making up a personal budget;

(d) for payments (“direct payments”) representing all or part of a personal
25budget to be made to a child’s parent or a young person, or a person of
a prescribed description in prescribed circumstances, in order to secure
provision to which the budget relates;

(e) about the description of provision to which personal budgets and direct
payments may (and may not) relate;

(f) 30for a personal budget or direct payment to cover the agreed cost of the
provision to which the budget or payment relates;

(g) about when, how, to whom and on what conditions direct payments
may (and may not) be made;

(h) about when direct payments may be required to be repaid and the
35recovery of unpaid sums;

(i) about conditions with which a person or body making direct payments
must comply before, after or at the time of making a direct payment;

(j) about arrangements for providing information, advice or support in
connection with personal budgets and direct payments.

(4) 40If the regulations include provision authorising direct payments, they must—

(a) require the consent of a child’s parent or a young person, or a person of
a prescribed description in prescribed circumstances, to be obtained
before direct payments are made;

(b) require the authority to stop making direct payments where the
45required consent is withdrawn.

(5) Provision acquired by means of a direct payment made by a local authority is
to be treated as provision secured by the authority in pursuance of its duty
under section 42(1), subject to any prescribed conditions or exceptions.

49 Continuation of services under section 17 of the Children Act 1989

5After section 17 of the Children Act 1989 (provision of services for children etc)
insert—

“17ZA Section 17 services: continued provision where EHC plan maintained

(1) This section applies where, immediately before a child in need reaches
the age of 18—

(a) 10a local authority is providing services for the child in the
exercise of functions conferred by section 17, and

(b) an EHC plan is maintained for the child.

(2) The local authority may continue to provide services for the child in the
exercise of those functions after the child reaches the age of 18, but may
15not continue to do so after the EHC plan has ceased to be maintained.

(3) In this section “EHC plan” means a plan within section 37(2) of the
Children and Families Act 2013.”

Appeals, mediation and dispute resolution

50 Appeals

(1) 20A child’s parent or a young person may appeal to the First-tier Tribunal against
the matters set out in subsection (2), subject to section 51 (mediation).

(2) The matters are—

(a) a decision of a local authority not to secure an EHC needs assessment
for the child or young person;

(b) 25a decision of a local authority, following an EHC needs assessment, that
it is not necessary for special educational provision to be made for the
child or young person in accordance with an EHC plan;

(c) where an EHC plan is maintained for the child or young person—

(i) the child’s or young person’s special educational needs as
30specified in the plan;

(ii) the special educational provision specified in the plan;

(iii) the school or other institution named in the plan, or the type of
school or other institution specified in the plan;

(iv) if no school or other institution is named in the plan, that fact;

(d) 35a decision of a local authority not to secure a re-assessment of the needs
of the child or young person under section 44 following a request to do
so;

(e) a decision of a local authority not to secure the amendment or
replacement of an EHC plan it maintains for the child or young person
40following a review or re-assessment under section 44;

(f) a decision of a local authority under section 45 to cease to maintain an
EHC plan for the child or young person.

(3) A child’s parent or a young person may appeal to the First-tier Tribunal under
subsection (2)(c)—

(a) when an EHC plan is first finalised for the child or young person, and

(b) following an amendment or replacement of the plan.

(4) 5Regulations may make provision about appeals to the First-tier Tribunal in
respect of EHC plans, in particular about—

(a) other matters relating to EHC plans against which appeals may be
brought;

(b) making and determining appeals;

(c) 10the powers of the First-tier Tribunal on determining an appeal;

(d) unopposed appeals.

51 Mediation

(1) This section applies where a child’s parent or young person intends to appeal
to the First-tier Tribunal under section 50 or regulations made under that
15section in respect of—

(a) a decision of a local authority, or

(b) the content of an EHC plan maintained by a local authority.

(2) But this section does not apply in respect of an appeal concerning only—

(a) the school or other institution named in an EHC plan;

(b) 20the type of school or other institution specified in an EHC plan;

(c) the fact that an EHC plan does not name a school or other institution.

(3) The parent or young person may make the appeal only if a mediation adviser
has issued a certificate to him or her under subsection (4) or (5).

(4) A mediation adviser must issue a certificate to the parent or young person if—

(a) 25the adviser has provided him or her with information and advice about
pursuing mediation with the local authority, and

(b) the parent or young person has informed the adviser that he or she does
not wish to pursue mediation.

(5) A mediation adviser must issue a certificate to the parent or young person if
30the adviser has provided him or her with information and advice about
pursuing mediation with the local authority, and the parent or young person
has—

(a) informed the adviser that he or she wishes to pursue mediation with
the local authority, and

(b) 35participated in such mediation.

(6) Where the parent or young person has informed the mediation adviser that he
or she wishes to pursue mediation with the local authority—

(a) the adviser must notify the authority, and

(b) the authority must arrange for, and participate in, mediation between
40it and the parent or young person.

(7) Regulations may make provision for the purposes of the preceding provisions
of this section, in particular—

(a) about giving notice;

(b) imposing time limits;

(c) 45about exceptions to subsection (3);

(d) enabling a local authority to take prescribed steps following the
conclusion of mediation;

(e) about who may attend mediation;

(f) where a child’s parent is a party to mediation, requiring the mediator
5to take reasonable steps to ascertain the views of the child;

(g) about the provision of advocacy and other support services for the
parent or young person;

(h) requiring a local authority to pay reasonable travel expenses and other
expenses of a prescribed description, up to any prescribed limit;

(i) 10about the training, qualifications and experience of mediation advisers
and mediators;

(j) conferring powers or imposing requirements on local authorities,
mediation advisers and mediators.

(8) In this section “mediation adviser” means an independent person who can
15provide information and advice about pursuing mediation with a local
authority.

For this purpose, a person who is employed by a local authority in England is
not independent.

For this purpose, a person who is employed by a local authority in England is
20not independent.

52 Resolution of disagreements

(1) A local authority in England must make arrangements with a view to avoiding
or resolving disagreements within subsection (2).

(2) The disagreements are those about the exercise by the local authority or
25relevant bodies of their functions under this Part, where the disagreement is
between—

(a) the local authority or a relevant body, and

(b) the parents of children, and young people, in the authority’s area.

(3) A local authority in England must make arrangements with a view to avoiding
30or resolving, in each relevant school or post-16 institution, disagreements
within subsection (4).

(4) The disagreements are those about the special educational provision made for
a child or young person with special educational needs who is a registered
pupil or a student at the relevant school or post-16 institution concerned,
35where the disagreement is between—

(a) the child’s parent, or the young person, and

(b) the appropriate authority for the school or post-16 institution.

(5) Arrangements within this section must provide for the appointment of
independent persons with the function of facilitating the avoidance or
40resolution of the disagreements to which the arrangements apply.

For this purpose, a person who is employed by a local authority in England is
not independent.

For this purpose, a person who is employed by a local authority in England is
not independent.

(6) 45A local authority in England must take such steps as it thinks appropriate for
making the arrangements under this section known to—

(a) the parents of children in its area with special educational needs,

(b) young people in its area with special educational needs, and

(c) the head teachers, governing bodies, proprietors and principals of
50schools and post-16 institutions in its area.

(7) A local authority in England may take such steps as it thinks appropriate for
making the arrangements under this section known to such other persons as it
thinks appropriate.

(8) In this section—

• 5“relevant body” means—

  (a)

  the governing body of a maintained school, maintained nursery
  school or institution within the further education sector;

  (b)

  the proprietor of an Academy;

• “relevant school or post-16 institution” means—

  (a)

  10a maintained school;

  (b)

  a maintained nursery school;

  (c)

  a post-16 institution;

  (d)

  an Academy;

  (e)

  an independent school;

  (f)

  15a non-maintained special school;

  (g)

  a pupil referral unit;

  (h)

  a place at which relevant early years education is provided.

(9) For the purposes of this section, the “appropriate authority” for a relevant
school or post-16 institution is—

(a) 20in the case of a maintained school, maintained nursery school or non-
maintained special school, the governing body;

(b) in the case of a post-16 institution, the governing body, proprietor or
principal;

(c) in the case of an Academy or independent school, the proprietor;

(d) 25in the case of a pupil referral unit, the management committee;

(e) in the case of a place at which relevant early years education is
provided, the provider of the relevant early years education.

53 Appeals and claims by children: pilot schemes

(1) The Secretary of State may by order make pilot schemes enabling children in
30England to—

(a) appeal to the First-tier Tribunal under section 50;

(b) make a claim to the First-tier Tribunal under Schedule 17 to the
Equality Act 2010 (disabled pupils: enforcement) that a responsible
body in England has contravened Chapter 1 of Part 6 of that Act
35because of the child’s disability.

(2) An order under subsection (1) may, in particular, make provision—

(a) about the age from which children may appeal or make a claim;

(b) in respect of appeals under section 50, about mediation and the
application of section 51;

(c) 40about the bringing of appeals or making of claims by a child and by his
or her parent concurrently;

(d) about determining whether a child is capable of bringing an appeal or
making a claim, and the assistance and support a child may require to
be able to do so;

(e) 45enabling a person to exercise a child’s rights under an order under
subsection (1) on behalf of the child;