Children and Families Bill (HC Bill 5)

21 Special educational provision, health care provision and social care provision

(1) “Special educational provision”, for a child aged two or more or a young
person, means educational or training provision that is additional to, or
different from, that made generally for others of the same age in—

(a) 5mainstream schools in England,

(b) maintained nursery schools in England,

(c) mainstream post-16 institutions in England, or

(d) places in England at which relevant early years education is provided.

(2) “Special educational provision”, for a child aged under two, means educational
10provision of any kind.

(3) “Health care provision” means the provision of health care services as part of
the comprehensive health service in England continued under section 1(1) of
the National Health Service Act 2006.

(4) “Social care provision” means the provision made by a local authority in the
15exercise of its social services functions.

(5) Health care provision or social care provision which is made wholly or mainly
for the purposes of the education or training of a child or young person is to be
treated as special educational provision (instead of health care provision or
social care provision).

(6) 20This section applies for the purposes of this Part.

Children and young people for whom a local authority is responsible

22 Identifying children and young people with special educational needs

A local authority in England must exercise its functions with a view to securing
that it identifies all the children and young people in its area who have or may
25have special educational needs.

23 When a local authority is responsible for a child or young person

(1) A local authority in England is responsible for a child or young person if he or
she is in the authority’s area and has been—

(a) identified by the authority as someone who has or may have special
30educational needs, or

(b) brought to the authority’s attention by any person as someone who has
or may have special educational needs.

(2) This section applies for the purposes of this Part.

24 Duty of health bodies to bring certain children to local authority’s attention

(1) 35This section applies where, in the course of exercising functions in relation to a
child who is under compulsory school age, a clinical commissioning group,
NHS trust or NHS foundation trust form the opinion that the child has (or
probably has) special educational needs.

(2) The group or trust must—

(a) 40inform the child’s parent of their opinion and of their duty under
subsection (3), and

(b) give the child’s parent an opportunity to discuss their opinion with an
officer of the group or trust.

(3) The group or trust must then bring their opinion to the attention of the
appropriate local authority in England.

(4) 5If the group or trust think a particular voluntary organisation is likely to be able
to give the parent advice or assistance in connection with any special
educational needs the child may have, they must inform the parent of that.

Education, health and care provision: integration and joint commissioning

25 Promoting integration

(1) 10A local authority in England must exercise its functions under this Part with a
view to ensuring the integration of special educational provision with health
care provision and social care provision, where it thinks that this would—

(a) promote the well-being of children or young people in its area who
have special educational needs, or

(b) 15improve the quality of special educational provision—

(i) made in its area for children or young people who have special
educational needs, or

(ii) made outside its area for children or young people for whom it
is responsible who have special educational needs.

(2) 20The reference in subsection (1) to the well-being of children and young people
is to their well-being so far as relating to—

(a) physical and mental health and emotional well-being;

(b) protection from abuse and neglect;

(c) control by them over their day-to-day lives;

(d) 25participation in education, training or recreation;

(e) social and economic well-being;

(f) domestic, family and personal relationships;

(g) the contribution made by them to society.

26 Joint commissioning arrangements

(1) 30A local authority in England and its partner commissioning bodies must make
arrangements (“joint commissioning arrangements”) about the education,
health and care provision to be secured for children and young people for
whom the authority is responsible who have special educational needs.

(2) In this Part “education, health and care provision” means—

(a) 35special educational provision;

(b) health care provision;

(c) social care provision.

(3) Joint commissioning arrangements must include arrangements for considering
and agreeing—

(a) 40the education, health and care provision reasonably required by the
learning difficulties and disabilities which result in the children and
young people concerned having special educational needs;

(b) what education, health and care provision is to be secured;

(c) by whom education, health and care provision is to be secured;

(d) what advice and information is to be provided about education, health
and care provision;

(e) by whom, to whom and how such advice and information is to be
5provided;

(f) how complaints about education, health and care provision may be
made and are to be dealt with;

(g) procedures for ensuring that disputes between the parties to the joint
commissioning arrangements are resolved as quickly as possible.

(4) 10Joint commissioning arrangements about securing education, health and care
provision must in particular include arrangements for—

(a) securing EHC needs assessments;

(b) securing the education, health and care provision specified in EHC
plans;

(c) 15agreeing personal budgets under section 48.

(5) Joint commissioning arrangements may also include other provision.

(6) The parties to joint commissioning arrangements must—

(a) have regard to them in the exercise of their functions, and

(b) keep them under review.

(7) 20Section 116B of the Local Government and Public Involvement in Health Act
2007 (duty to have regard to assessment of relevant needs and joint health and
wellbeing strategy) applies in relation to functions exercisable under this
section.

(8) A local authority’s “partner commissioning bodies” are—

(a) 25the National Health Service Commissioning Board, to the extent that it
is under a duty under section 3B of the National Health Service Act
2006 to arrange for the provision of services or facilities for any children
and young people for whom the authority is responsible who have
special educational needs, and

(b) 30each clinical commissioning group that is under a duty under section 3
of that Act to arrange for the provision of services or facilities for any
such children and young people.

(9) Regulations may prescribe circumstances in which a clinical commissioning
group that would otherwise be a partner commissioning body of a local
35authority by virtue of subsection (8)(b) is to be treated as not being a partner
commissioning body of the authority.

Review of education and care provision

27 Duty to keep education and care provision under review

(1) A local authority in England must keep under review—

(a) 40the special educational provision and social care provision made in its
area for children and young people who have special educational
needs, and

(b) the special educational provision and social care provision made
outside its area for children and young people for whom it is
45responsible who have special educational needs.

(2) The authority must consider the extent to which the provision referred to in
subsection (1)(a) and (b) is sufficient to meet the special educational needs and
social care needs of the children and young people concerned.

(3) In exercising its functions under this section, the authority must consult—

(a) 5children and young people with special educational needs, and the
parents of children with special educational needs, in its area;

(b) the governing bodies of maintained schools and maintained nursery
schools in its area;

(c) the proprietors of Academies in its area;

(d) 10the governing bodies, proprietors or principals of post-16 institutions
in its area;

(e) the governing bodies of non-maintained special schools in its area;

(f) the advisory boards of children’s centres in its area;

(g) the providers of relevant early years education in its area;

(h) 15the governing bodies, proprietors or principals of other schools and
post-16 institutions in England and Wales that the authority thinks are
or are likely to be attended by children or young people for whom it is
responsible;

(i) a youth offending team that the authority thinks has functions in
20relation to children or young people for whom it is responsible;

(j) such other persons as the authority thinks appropriate.

(4) Section 116B of the Local Government and Public Involvement in Health Act
2007 (duty to have regard to assessment of relevant needs and joint health and
wellbeing strategy) applies in relation to functions exercisable under this
25section.

(5) “Children’s centre” has the meaning given by section 5A(4) of the Childcare
Act 2006.

Co-operation and assistance

28 Co-operating generally: local authority functions

(1) 30A local authority in England must co-operate with each of its local partners,
and each local partner must co-operate with the authority, in the exercise of the
authority’s functions under this Part.

(2) Each of the following is a local partner of a local authority in England for this
purpose—

(a) 35where the authority is a county council for an area for which there is
also a district council, the district council;

(b) the governing body of a maintained school or maintained nursery
school that is maintained by the authority or provides education or
training for children or young people for whom the authority is
40responsible;

(c) the proprietor of an Academy that is in the authority’s area or provides
education or training for children or young people for whom the
authority is responsible;

(d) the proprietor of a non-maintained special school that is in the
45authority’s area or provides education or training for children or young
people for whom the authority is responsible;

(e) the governing body of an institution within the further education sector
that is in the authority’s area, or is attended, or likely to be attended, by
children or young people for whom the authority is responsible;

(f) the management committee of a pupil referral unit that is in the
5authority’s area, or is in England and is or is likely to be attended by
children or young people for whom the authority is responsible;

(g) the proprietor of an institution approved by the Secretary of State
under section 41 (independent special schools and special post 16
institutions: approval) that is in the authority’s area, or is attended, or
10likely to be attended, by children or young people for whom the
authority is responsible;

(h) any other person (other than a school or post-16 institution) that makes
special educational provision for a child or young person for whom the
authority is responsible;

(i) 15a youth offending team that the authority thinks has functions in
relation to children or young people for whom it is responsible;

(j) the National Health Service Commissioning Board;

(k) a clinical commissioning group—

(i) whose area coincides with, or falls wholly or partly within, the
20authority’s area, or

(ii) which is under a duty under section 3 of the National Health
Service Act 2006 to arrange for the provision of services or
facilities for any children and young people for whom the
authority is responsible;

(l) 25an NHS trust or NHS foundation trust which provides services in the
authority’s area, or which exercises functions in relation to children or
young people for whom the authority is responsible;

(m) a Local Health Board which exercises functions in relation to children
or young people for whom the authority is responsible.

(3) 30A local authority in England must make arrangements for ensuring co-
operation between—

(a) the officers of the authority who exercise the authority’s functions
relating to education or training,

(b) the officers of the authority who exercise the authority’s social services
35functions for children or young people with special educational needs,
and

(c) the officers of the authority, so far as they are not officers within
paragraph (a) or (b), who exercise the authority’s functions relating to
provision which is within section 30(2)(e) (provision to assist in
40preparing children and young people for adulthood and independent
living).

(4) Regulations may prescribe circumstances in which a clinical commissioning
group that would otherwise be a local partner of a local authority by virtue of
subsection (2)(k)(ii) is to be treated as not being a local partner of the authority.

29 45Co-operating generally: governing body functions

(1) This section applies where an appropriate authority for a school or post-16
institution mentioned in subsection (2) has functions under this Part.

(2) The schools and post-16 institutions referred to in subsection (1) are—

(a) mainstream schools;

(b) maintained nursery schools;

(c) 16 to 19 Academies;

(d) institutions within the further education sector;

(e) pupil referral units;

(f) 5alternative provision Academies.

(3) The appropriate authority must co-operate with each responsible local
authority, and each responsible local authority must co-operate with the
appropriate authority, in the exercise of those functions.

(4) A responsible local authority, in relation to an appropriate authority for a
10school or post-16 institution mentioned in subsection (2), is a local authority in
England that is responsible for any child or young person who is a registered
pupil or a student at the school or post-16 institution.

(5) The “appropriate authority” for a school or post-16 institution is—

(a) in the case of a maintained school, maintained nursery school, or
15institution 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.

Information and advice

30 Local offer for children and young people with special educational needs

(1) 20A local authority in England must publish information about—

(a) the provision within subsection (2) it expects to be available in its area
at the time of publication for children and young people who have
special educational needs, and

(b) the provision within subsection (2) it expects to be available outside its
25area at that time for children and young people for whom it is
responsible.

(2) The provision for children and young people referred to in subsection (1) is—

(a) education, health and care provision;

(b) other educational provision;

(c) 30training provision;

(d) arrangements for travel to and from schools and post-16 institutions
and places at which relevant early years education is provided;

(e) provision to assist in preparing children and young people for
adulthood and independent living.

(3) 35For the purposes of subsection (2)(e), provision to assist in preparation for
adulthood and independent living includes provision relating to—

(a) finding employment;

(b) obtaining accommodation;

(c) participation in society.

(4) 40Information required to be published by an authority under this section is to be
known as its “local offer”.

(5) A local authority must keep its local offer under review and may from time to
time revise it.

(6) A local authority must from time to time publish—

(a) comments about its local offer it has received from or on behalf of
children and young people with special educational needs, and the
parents of children with special educational needs, and

(b) 5the authority’s response to those comments.

(7) Comments published under subsection (6)(a) must be published in a form that
does not enable the person making them to be identified.

(8) Regulations may make provision about—

(a) the information to be included in an authority’s local offer;

(b) 10how an authority’s local offer is to be published;

(c) who is to be consulted by an authority in preparing and reviewing its
local offer;

(d) how an authority is to involve children and young people with special
educational needs, and the parents of children with special educational
15needs, in the preparation and review of its local offer;

(e) the publication of comments on the local offer, and the local authority’s
response, under subsection (6) (including circumstances in which
comments are not required to be published).

(9) The regulations may in particular require an authority’s local offer to include—

(a) 20information about how to obtain an EHC needs assessment;

(b) information about other sources of information, advice and support for
children and young people with special educational needs and those
who care for them;

(c) information about gaining access to provision additional to, or different
25from, the provision mentioned in subsection (2);

(d) information about how to make a complaint about provision
mentioned in subsection (2).

31 Co-operating in specific cases: local authority functions

(1) This section applies where a local authority in England requests the co-
30operation of any of the following bodies in the exercise of a function under this
Part—

(a) another local authority;

(b) a youth offending team;

(c) the National Health Service Commissioning Board;

(d) 35a clinical commissioning group;

(e) a Local Health Board;

(f) an NHS trust or NHS foundation trust.

(2) The body must comply with the request, unless it considers that doing so
would—

(a) 40be incompatible with its own duties, or

(b) otherwise have an adverse effect on the exercise of its functions.

(3) A body that decides not to comply with a request under subsection (1) must
give the authority that made the request written reasons for the decision.

(4) Regulations may provide that, where a body is under a duty to comply with a
45request to co-operate with a local authority in securing an EHC needs

assessment or the preparation of an EHC plan, the body must comply with the
request within a prescribed period, unless a prescribed exception applies.

32 Advice and information for parents and young people

(1) A local authority in England must arrange for the parents of children for whom
5it is responsible, and young people for whom it is responsible, to be provided
with advice and information about matters relating to the special educational
needs of the children or young people concerned.

(2) The authority must take such steps as it thinks appropriate for making the
services provided under subsection (1) known to—

(a) 10the parents of children in its area;

(b) young people in its area;

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

(3) The authority may also take such steps as it thinks appropriate for making the
15services provided under subsection (1) known to such other persons as it
thinks appropriate.

Mainstream education

33 Children and young people with EHC plans

(1) This section applies where a local authority is securing the preparation of an
20EHC plan for a child or young person who is to be educated in a school or post-
16 institution.

(2) In a case within section 39(5) or 40(2), the local authority must secure that the
plan provides for the child or young person to be educated in a maintained
nursery school, mainstream school or mainstream post-16 institution, unless
25that is incompatible with—

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

(b) the provision of efficient education for others.

(3) A local authority may rely on the exception in subsection (2)(b) in relation to
maintained nursery schools, mainstream schools or mainstream post-16
30institutions in its area taken as a whole only if it shows that there are no
reasonable steps that it could take to prevent the incompatibility.

(4) A local authority may rely on the exception in subsection (2)(b) in relation to a
particular maintained nursery school, mainstream school or mainstream post-
16 institution only if it shows that there are no reasonable steps that it or the
35governing body, proprietor or principal could take to prevent the
incompatibility.

(5) The governing body, proprietor or principal of a maintained nursery school,
mainstream school or mainstream post-16 institution may rely on the
exception in subsection (2)(b) only if they show that there are no reasonable
40steps that they or the local authority could take to prevent the incompatibility.

(6) Subsection (2) does not prevent the child or young person from being educated
in an independent school, a non-maintained special school or a special post-16
institution, if the cost is not to be met by a local authority or the Secretary of
State.

(7) This section does not affect the operation of section 58 (fees payable by local
authority for special educational provision at non-maintained schools and
post-16 institutions).

34 Children and young people with special educational needs but no EHC plan

(1) 5This section applies to a child or young person in England who has special
educational needs but for whom no EHC plan is maintained, if he or she is to
be educated in a school or post-16 institution.

(2) The child or young person must be educated in a maintained nursery school,
mainstream school or mainstream post-16 institution, subject to subsections (3)
10and (4).

(3) The child or young person may be educated in an independent school, a non-
maintained special school or a special post-16 institution, if the cost is not to be
met by a local authority or the Secretary of State.

(4) The child or young person may be educated in a special school or special post-
1516 institution during any period in which any of subsections (5) to (9) applies.

(5) This subsection applies while the child or young person is admitted to a special
school or special post-16 institution for the purposes of an EHC needs
assessment, if all the following have agreed to his or her admission to the
school or post-16 institution—

(a) 20the local authority which is responsible for him or her;

(b) the head teacher of the school or the principal of the Academy or post-
16 institution;

(c) the child’s parent or the young person;

(d) anyone else whose advice is required to be obtained in connection with
25the assessment by virtue of regulations under section 36(11).

(6) This subsection applies while the child or young person remains admitted to a
special school or special post-16 institution, in prescribed circumstances,
following an EHC needs assessment at the school or post-16 institution.

(7) This subsection applies while the child or young person is admitted to a special
30school or special post-16 institution, following a change in his or her
circumstances, if all the following have agreed to his or her admission to the
school or post-16 institution—

(a) the local authority which is responsible for him or her;

(b) the head teacher of the school or the principal of the Academy or post-
3516 institution;

(c) the child’s parent or the young person.

(8) This subsection applies while the child or young person is admitted to a special
school which is established in a hospital and is—

(a) a community or foundation special school, or

(b) 40an Academy school.

(9) This subsection applies while the child is admitted to a special school or special
post-16 institution that is an Academy, if the Academy arrangements made in
respect of the school or post-16 institution permit it to admit children and
young people with special educational needs for whom no EHC plan is
45maintained.

(10) This section does not affect the operation of section 58 (fees payable by local
authority for special educational provision at non-maintained schools and
post-16 institutions).

35 Children with SEN in maintained nurseries and mainstream schools

(1) 5This section applies where a child with special educational needs is being
educated in a maintained nursery school or a mainstream school.

(2) Those concerned with making special educational provision for the child must
secure that the child engages in the activities of the school together with
children who do not have special educational needs, subject to subsection (3).

(3) 10Subsection (2) applies only so far as is reasonably practicable and is compatible
with—

(a) the child receiving the special educational provision called for by his or
her special educational needs,

(b) the provision of efficient education for the children with whom he or
15she will be educated, and

(c) the efficient use of resources.

Assessment

36 Assessment of education, health and care needs

(1) A request for a local authority in England to secure an EHC needs assessment
20for a child or young person may be made to the authority by the child’s parent,
the young person or a person acting on behalf of a school or post-16 institution.

(2) An “EHC needs assessment” is an assessment of the educational, health care
and social care needs of a child or young person.

(3) When a request is made to a local authority under subsection (1), or a local
25authority otherwise becomes responsible for a child or young person, the
authority must determine whether it may be necessary for special educational
provision to be made for the child or young person in accordance with an EHC
plan.

(4) In making a determination under subsection (3), the local authority must
30consult the child’s parent or the young person.

(5) Where the local authority determines that it is not necessary for special
educational provision to be made for the child or young person in accordance
with an EHC plan it must notify the child’s parent or the young person—

(a) of the reasons for that determination, and

(b) 35that accordingly it has decided not to secure an EHC needs assessment
for the child or young person.

(6) Subsection (7) applies where—

(a) no EHC plan is maintained for the child or young person,

(b) the child or young person has not been assessed under this section
40during the previous six months, and

(c) the local authority determines that it may be necessary for special
educational provision to be made for the child or young person in
accordance with an EHC plan.