Children and Families Bill

Session 2012 - 13
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Other Bills before Parliament

Children and Families Bill

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
38

(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)
the adviser has provided him or her with information and advice about
5
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
the adviser has provided him or her with information and advice about
10
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)
participated in such mediation.
15
(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
it and the parent or young person.
20
(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)
about exceptions to subsection (3);
25
(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
to take reasonable steps to ascertain the views of the child;
30
(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)
about the training, qualifications and experience of mediation advisers
35
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
provide information and advice about pursuing mediation with a local
40
authority.

For this purpose, a person who is employed by a local authority in England is
not independent.
52
Resolution of disagreements
(1)
A local authority in England must make arrangements with a view to avoiding
45
or resolving disagreements within subsection (2).

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
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(2)
The disagreements are those about the exercise by the local authority or
relevant 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.
5
(3)
A local authority in England must make arrangements with a view to avoiding
or 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
10
pupil or a student at the relevant school or post-16 institution concerned,
where 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
15
independent persons with the function of facilitating the avoidance or
resolution 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.
(6)
A local authority in England must take such steps as it thinks appropriate for
20
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
schools and post-16 institutions in its area.
25
(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—
“relevant body” means—
30
(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)
a maintained school;
35
(b)
a maintained nursery school;
(c)
a post-16 institution;
(d)
an Academy;
(e)
an independent school;
(f)
a non-maintained special school;
40
(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)
in the case of a maintained school, maintained nursery school or non-
45
maintained special school, the governing body;

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
40

(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)
in the case of a pupil referral unit, the management committee;
(e)
in the case of a place at which relevant early years education is
5
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
England to—
(a)
appeal to the First-tier Tribunal under section 50;
10
(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
because of the child’s disability.
(2)
An order under subsection (1) may, in particular, make provision—
15
(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)
about the bringing of appeals or making of claims by a child and by his
or her parent concurrently;
20
(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)
enabling a person to exercise a child’s rights under an order under
subsection (1) on behalf of the child;
25
(f)
enabling children to have access to advice and information which is
available to a parent or young person in respect of an appeal or claim
of a kind mentioned in subsection (1);
(g)
about the provision of advocacy and other support services to children;
(h)
requiring notices to be given to a child (as well as to his or her parent);
30
(i)
requiring documents to be served on a child (as well as on his or her
parent).
(3)
An order under subsection (1) may apply a statutory provision, with or
without modifications.
(4)
In subsection (3), “statutory provision” means a provision made by or under
35
this or any other Act, whenever passed or made.
(5)
This section is repealed at the end of five years beginning with the day on
which this Act is passed.
54
Appeals and claims by children: follow-up provision
(1)
The Secretary of State may by order provide that children in England may—
40
(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
because of the child’s disability.
45

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
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(2)
The Secretary of State may not make an order under subsection (1) until the
end of two years beginning with the day on which the first order is made under
section 53(1).
(3)
An order under subsection (1) may, in particular, make provision—
(a)
about the age from which children may appeal or make a claim;
5
(b)
in respect of appeals under section 50, about mediation and the
application of section 51;
(c)
about 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
10
making a claim, and the assistance and support a child may require to
be able to do so;
(e)
enabling a person to exercise a child’s rights under an order under
subsection (1) on behalf of the child;
(f)
enabling children to have access to advice and information which is
15
available to a parent or young person in respect of an appeal or claim
of a kind mentioned in subsection (1);
(g)
about the provision of advocacy and other support services to children;
(h)
requiring notices to be given to a child (as well as to his or her parent);
(i)
requiring documents to be served on a child (as well as on his or her
20
parent).
(4)
An order under subsection (1) may—
(a)
amend, repeal or revoke a statutory provision, or
(b)
apply a statutory provision, with or without modifications.
(5)
In subsection (4), “statutory provision” means a provision made by or under
25
this or any other Act, whenever passed or made.
55
Equality Act 2010: claims against schools by disabled young people
In Part 2 of Schedule 17 to the Equality Act 2010 (disabled pupils: enforcement
in tribunals in England and Wales), in paragraph 3 (who may make a claim that
a school has contravened Chapter 1 of Part 6 of that Act because of a person’s
30
disability) for “to the Tribunal by the person’s parent” substitute “—
(a)
to the English Tribunal by the person’s parent or, if the
person is over compulsory school age, the person;
(b)
to the Welsh Tribunal by the person’s parent.”
Special educational provision: functions of local authorities
35
56
Special educational provision otherwise than in schools, post-16 institutions
etc
(1)
A local authority in England may arrange for any special educational provision
that it has decided is necessary for a child or young person for whom it is
responsible to be made otherwise than in a school or post-16 institution or a
40
place at which relevant early years education is provided.
(2)
An authority may do so only if satisfied that it would be inappropriate for the
provision to be made in a school or post-16 institution or at such a place.

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
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(3)
Before doing so, the authority must consult the child’s parent or the young
person.
57
Special educational provision outside England and Wales
(1)
This section applies where a local authority in England makes arrangements
for a child or young person for whom it maintains an EHC plan to attend an
5
institution outside England and Wales which specialises in providing for
children or young people with special educational needs.
(2)
The arrangements may (in particular) include contributing to or paying—
(a)
fees charged by the institution;
(b)
the child’s or young person’s travelling expenses;
10
(c)
expenses reasonably incurred in maintaining the child or young person
while at the institution or travelling to or from it;
(d)
expenses reasonably incurred by someone accompanying the child or
young person while travelling to or from the institution or staying
there.
15
58
Fees for special educational provision at non-maintained schools and post-16
institutions
(1)
Subsection (2) applies where—
(a)
a local authority maintains an EHC plan for a child or young person,
(b)
special educational provision in respect of the child or young person is
20
made at a school, post-16 institution or place at which relevant early
years education is provided, and
(c)
that school, institution or place is named in the EHC plan.
(2)
The local authority must pay any fees payable in respect of education or
training provided for the child or young person at that school, institution or
25
place in accordance with the EHC plan.
(3)
Subsection (4) applies where—
(a)
a local authority is responsible for a child or young person for whom no
EHC plan is maintained,
(b)
special educational provision in respect of the child or young person is
30
made at a school, post-16 institution or place at which relevant early
years education is provided, and
(c)
the local authority is satisfied that—
(i)
the interests of the child or young person require special
educational provision to be made, and
35
(ii)
it is appropriate for education or training to be provided to the
child or young person at the school, institution or place in
question.
(4)
The local authority must pay any fees payable in respect of the special
educational provision made at the school, institution or place in question
40
which is required to meet the special educational needs of the child or young
person.
(5)
Where board and lodging are provided for the child or young person at the
school, post-16 institution or place mentioned in subsection (2) or (4), the
authority must also pay any fees in respect of the board and lodging, if satisfied
45

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
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that special educational provision cannot be provided at the school, post-16
institution or place unless the board and lodging are also provided.
59
Supply of goods and services
(1)
A local authority in England may supply goods and services to—
(a)
the governing body of a maintained school or maintained nursery
5
school in England;
(b)
the proprietor of an Academy;
(c)
the governing body of an institution within the further education sector
that the authority thinks is or is to be attended by a young person for
whom the authority maintains an EHC plan,
10

but only for the purpose set out in subsection (2).
(2)
The purpose is that of assisting the governing body or proprietor in the
performance of—
(a)
any duty imposed on the body under section 61(2) (duty to use best
endeavours to secure special educational provision called for by special
15
educational needs);
(b)
in the case of a governing body of a community or foundation special
school, any duty imposed on the body.
(3)
The goods and services may be supplied on the terms and conditions that the
authority thinks fit, including terms as to payment.
20
(4)
A local authority in England may supply goods and services to any authority
or other person (other than a governing body or proprietor within subsection
(1)), but only for the purpose set out in subsection (5).
(5)
The purpose is that of assisting the authority or other person in making special
educational provision for a child who is receiving relevant early years
25
education, in a case where the authority has decided that the special
educational provision is necessary for the child.
60
Access to schools, post-16 institutions and other institutions
(1)
This section applies where a local authority in England maintains an EHC plan
for a child or young person.
30
(2)
A person authorised by the authority is entitled to have access at any
reasonable time to the premises of a school, post-16 institution or other
institution at which education or training is provided in pursuance of the plan,
for the purpose of monitoring the education or training.
(3)
Subsection (2) does not apply to the premises of a mainstream post-16
35
institution in Wales.
Special educational provision: functions of governing bodies and others
61
Using best endeavours to secure special educational provision
(1)
This section imposes duties on the appropriate authorities for the following
schools and other institutions in England—
40
(a)
mainstream schools;
(b)
maintained nursery schools;

Children and Families Bill
Part 3 — Children and young people in England with special educational needs
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(c)
16 to 19 Academies;
(d)
alternative provision Academies;
(e)
institutions within the further education sector;
(f)
pupil referral units.
(2)
If a registered pupil or a student at a school or other institution has special
5
educational needs, the appropriate authority must, in exercising its functions
in relation to the school or other institution, use its best endeavours to secure
that the special educational provision called for by the pupil’s or student’s
special educational needs is made.
(3)
The “appropriate authority” for a school or other institution is—
10
(a)
in the case of a maintained school, maintained nursery school or
institution within the further education sector, the governing body;
(b)
in the case of an Academy, the proprietor;
(c)
in the case of a pupil referral unit, the management committee.
62
SEN co-ordinators
15
(1)
This section imposes duties on the appropriate authorities of the following
schools in England—
(a)
mainstream schools;
(b)
maintained nursery schools.
(2)
The appropriate authority must designate a member of staff at the school (to be
20
known as the “SEN co-ordinator”) as having responsibility for co-ordinating
the provision for pupils with special educational needs.
(3)
Regulations may—
(a)
require appropriate authorities which are subject to the duty imposed
by subsection (2) to ensure that SEN co-ordinators have prescribed
25
qualifications or prescribed experience (or both);
(b)
confer other functions relating to SEN co-ordinators on appropriate
authorities which are subject to the duty imposed by subsection (2).
(4)
The “appropriate authority” for a school is—
(a)
in the case of a maintained school or maintained nursery school, the
30
governing body;
(b)
in the case of an Academy, the proprietor.
63
Informing parents and young people
(1)
This section applies if—
(a)
special educational provision is made for a child or young person at a
35
maintained school, a maintained nursery school, an Academy school,
an alternative provision Academy or a pupil referral unit, and
(b)
no EHC plan is maintained for the child or young person.
(2)
The appropriate authority for the school must inform the child’s parent or the
young person that special educational provision is being made for the child or
40
young person.
(3)
The “appropriate authority” for a school is—
(a)
in the case of a maintained school or maintained nursery school, the
governing body;