|
| |
|
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 |
| |
under 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— |
| 5 |
(a) | the governing body, proprietor or principal of the school or other |
| |
| |
(b) | the 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 |
| 10 |
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, |
| 15 |
ability, aptitude or special educational needs of the child or young |
| |
| |
(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 |
| 20 |
(ii) | the 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 |
| 25 |
thinks 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) |
| |
| |
(a) | the governing body, proprietor or principal of any school or other |
| 30 |
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. |
| |
(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 |
| 35 |
| |
(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 |
40 | Finalising 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— |
| 45 |
|
| |
|
| |
|
(a) | names 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 |
| 5 |
subsection (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. |
| 10 |
(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) | the governing body, proprietor or principal of any school or other |
| 15 |
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 |
| |
| 20 |
(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 |
| |
educational institutions in England (kept under section 95 of |
| 25 |
| |
(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 |
| |
further education sector or a 16 to 19 Academy. |
| 30 |
(3) | The Secretary of State may approve an institution under subsection (1) only if |
| |
| |
(4) | The Secretary of State may withdraw approval given under subsection (1). |
| |
(5) | Regulations may make provision about giving and withdrawing approval |
| |
under this section, in particular— |
| 35 |
(a) | about the types of special post-16 institutions which may be approved |
| |
| |
(b) | specifying criteria which an institution must meet before it can be |
| |
approved under subsection (1); |
| |
(c) | about the matters which may or must be taken into account in deciding |
| 40 |
to give or withdraw approval; |
| |
(d) | about the publication of a list of all institutions who are approved |
| |
| |
|
| |
|
| |
|
42 | Duty to secure special educational provision and health care provision in |
| |
| |
(1) | This section applies where a local authority maintains an EHC plan for a child |
| |
| |
(2) | The local authority must secure the specified special educational provision for |
| 5 |
the child or young person. |
| |
(3) | If the plan specifies health care provision, the responsible commissioning body |
| |
must arrange the specified health care provision for the child or young person. |
| |
(4) | “The responsible commissioning body”, in relation to any specified health care |
| |
provision, means the body (or each body) that is under a duty to arrange health |
| 10 |
care provision of that kind in respect of the child or young person. |
| |
(5) | Subsections (2) and (3) do not apply to the extent that the child’s parent or the |
| |
young person has made suitable alternative arrangements. |
| |
(6) | “Specified”, in relation to an EHC plan, means specified in the plan. |
| |
43 | Schools and other institutions named in EHC plan: duty to admit |
| 15 |
(1) | Subsection (2) applies if one of the following is named in an EHC plan— |
| |
| |
(b) | a maintained nursery school; |
| |
| |
(d) | an institution within the further education sector in England; |
| 20 |
(e) | a non-maintained special school; |
| |
(f) | an institution approved by the Secretary of State under section 41. |
| |
(2) | The 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 |
| 25 |
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 |
| |
school or other institution. |
| |
44 | Reviews and re-assessments |
| |
(1) | A local authority must review an EHC plan that it maintains— |
| 30 |
(a) | in the period of 12 months starting with the date on which the plan was |
| |
| |
(b) | in 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 |
| 35 |
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) | the 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. |
| 40 |
(3) | A local authority may also secure a re-assessment of those needs at any other |
| |
time if it thinks it necessary. |
| |
|
| |
|
| |
|
(4) | Subsections (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. |
| 5 |
(6) | During 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 |
| |
| |
(a) | about other circumstances in which a local authority must or may |
| 10 |
review 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- |
| 15 |
| |
(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 |
| 20 |
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) | A local authority may cease to maintain an EHC plan for a child or young |
| |
| 25 |
(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 |
| |
| |
(2) | The 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 |
| 30 |
person no longer requires the special educational provision specified in the |
| |
| |
(3) | When determining whether a child or young person no longer requires the |
| |
special educational provision specified in his or her EHC plan, a local authority |
| |
must have regard to whether the educational outcomes specified in the plan |
| 35 |
| |
(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 |
| |
regard to his or her age. |
| |
(5) | A local authority may not cease to maintain an EHC plan for a child or young |
| 40 |
| |
(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 |
| |
appeal is brought before the end of that period; |
| |
(b) | after the appeal has been finally determined, where such an appeal is |
| 45 |
brought before the end of that period. |
| |
|
| |
|
| |
|
(6) | Regulations may make provision about ceasing to maintain an EHC plan, in |
| |
| |
(a) | other circumstances in which it is no longer necessary for an EHC plan |
| |
| |
(b) | circumstances in which a local authority may not determine that it is no |
| 5 |
longer necessary for an EHC plan to be maintained; |
| |
(c) | the procedure to be followed by a local authority when determining |
| |
whether 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 |
| 10 |
until the end of the academic year during which the young person attains the |
| |
| |
(2) | “Academic year” means the period of twelve months ending on the prescribed |
| |
| |
47 | Release of child or young person for whom EHC plan previously maintained |
| 15 |
(1) | This section applies where— |
| |
(a) | a child or young person who has been subject to a custodial sentence is |
| |
| |
(b) | on the release date, a local authority in England becomes responsible |
| |
| 20 |
(c) | an 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. |
| 25 |
(3) | Subsection (2)(b) is subject to any contrary provision in regulations under |
| |
| |
| |
(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 |
| 30 |
him 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. |
| 35 |
(3) | Regulations 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 |
| 40 |
budget 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) | for 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 |
| 5 |
may (and may not) be made; |
| |
(h) | about when direct payments may be required to be repaid and the |
| |
| |
(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; |
| 10 |
(j) | about arrangements for providing information, advice or support in |
| |
connection with personal budgets and direct payments. |
| |
(4) | If 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 |
| 15 |
before direct payments are made; |
| |
(b) | require the authority to stop making direct payments where the |
| |
required 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 |
| 20 |
under section 42(1), subject to any prescribed conditions or exceptions. |
| |
49 | Continuation of services under section 17 of the Children Act 1989 |
| |
After section 17 of the Children Act 1989 (provision of services for children etc) |
| |
| |
“17ZA | Section 17 services: continued provision where EHC plan maintained |
| 25 |
(1) | This section applies where, immediately before a child in need reaches |
| |
| |
(a) | a 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. |
| 30 |
(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 |
| |
not 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.” |
| 35 |
Appeals, mediation and dispute resolution |
| |
| |
(1) | A 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). |
| |
| 40 |
(a) | a decision of a local authority not to secure an EHC needs assessment |
| |
for the child or young person; |
| |
|
| |
|
| |
|
(b) | a 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 |
| 5 |
| |
(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; |
| 10 |
(d) | a 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 |
| |
| |
(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 |
| 15 |
following 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 |
| |
| 20 |
(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) | Regulations 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 |
| 25 |
| |
(b) | making and determining appeals; |
| |
(c) | the powers of the First-tier Tribunal on determining an appeal; |
| |
| |
(5) | A person commits an offence if without reasonable excuse that person fails to |
| 30 |
comply with any requirement— |
| |
(a) | in respect of the discovery or inspection of documents, or |
| |
(b) | to attend to give evidence and produce documents, |
| |
| where that requirement is imposed by Tribunal Procedure Rules in relation to |
| |
an appeal under this section or regulations under subsection (4)(a). |
| 35 |
(6) | A person guilty of an offence under subsection (5) is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale. |
| |
| |
(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 |
| 40 |
| |
(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; |
| 45 |
(b) | the type of school or other institution specified in an EHC plan; |
| |
|
| |
|