Children and Families Bill (HC Bill 5)

(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) 5the 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
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
10a 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,
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) 15Arrangements within this section must provide for the appointment of
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.

20For 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
making the arrangements under this section known to—

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

(b) 25young 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.

(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
30thinks appropriate.

(8) In this section—

• “relevant body” means—

  (a)

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

  (b)

  35the proprietor of an Academy;

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

  (a)

  a maintained school;

  (b)

  a maintained nursery school;

  (c)

  a post-16 institution;

  (d)

  40an Academy;

  (e)

  an independent school;

  (f)

  a non-maintained special school;

  (g)

  a pupil referral unit;

  (h)

  a place at which relevant early years education is provided.

(9) 45For 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-
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) in the case of a pupil referral unit, the management committee;

(e) 5in 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
England to—

(a) 10appeal 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.

(2) 15An 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) about the bringing of appeals or making of claims by a child and by his
20or 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) enabling a person to exercise a child’s rights under an order under
25subsection (1) on behalf of the child;

(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) 30requiring 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
parent).

(3) An order under subsection (1) may apply a statutory provision, with or
without modifications.

(4) 35In subsection (3), “statutory provision” means a provision made by or under
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) 40The Secretary of State may by order provide that children in England may—

(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
45because of the child’s disability.

(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) 5about 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;

(d) 10about 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;

(f) 15enabling 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);

(i) 20requiring documents to be served on a child (as well as on his or her
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) 25In subsection (4), “statutory provision” means a provision made by or under
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
30a school has contravened Chapter 1 of Part 6 of that Act because of a person’s
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.”

35Special educational provision: functions of local authorities

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
40responsible to be made otherwise than in a school or post-16 institution or a
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.

(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
5for a child or young person for whom it maintains an EHC plan to attend an
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) 10the child’s or young person’s travelling expenses;

(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
15there.

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) 20special educational provision in respect of the child or young person is
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
25training provided for the child or young person at that school, institution or
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) 30special educational provision in respect of the child or young person is
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
35educational provision to be made, and

(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
40educational provision made at the school, institution or place in question
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
45authority must also pay any fees in respect of the board and lodging, if satisfied

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) 5the governing body of a maintained school or maintained nursery
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
10whom the authority maintains an EHC plan,

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
15endeavours to secure special educational provision called for by special
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
20authority thinks fit, including terms as to payment.

(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
25educational provision for a child who is receiving relevant early years
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
30for a child or young person.

(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) 35Subsection (2) does not apply to the premises of a mainstream post-16
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
40schools and other institutions in England—

(a) mainstream schools;

(b) maintained nursery schools;

(c) 16 to 19 Academies;

(d) alternative provision Academies;

(e) institutions within the further education sector;

(f) pupil referral units.

(2) 5If a registered pupil or a student at a school or other institution has special
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) 10The “appropriate authority” for a school or other institution is—

(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 15SEN co-ordinators

(1) This section imposes duties on the appropriate authorities of the following
schools in England—

(a) mainstream schools;

(b) maintained nursery schools.

(2) 20The appropriate authority must designate a member of staff at the school (to be
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
25by subsection (2) to ensure that SEN co-ordinators have prescribed
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) 30in the case of a maintained school or maintained nursery school, the
governing body;

(b) in the case of an Academy, the proprietor.

63 Informing parents and young people

(1) This section applies if—

(a) 35special educational provision is made for a child or young person at a
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
40young person that special educational provision is being made for the child or
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;

(b) in the case of an Academy school or an alternative provision Academy,
the proprietor;

(c) in the case of a pupil referral unit, the management committee.

64 SEN information report

(1) 5This section imposes a duty on—

(a) the governing bodies of maintained schools and maintained nursery
schools in England, and

(b) the proprietors of Academy schools.

(2) A governing body or proprietor must prepare a report containing SEN
10information.

(3) “SEN information” is—

(a) such information as may be prescribed about the implementation of the
governing body’s or proprietor’s policy for pupils at the school with
special educational needs;

(b) 15information as to—

(i) the arrangements for the admission of disabled persons as
pupils at the school;

(ii) the steps taken to prevent disabled pupils from being treated
less favourably than other pupils;

(iii) 20the facilities provided to assist access to the school by disabled
pupils;

(iv) the plan prepared by the governing body or proprietor under
paragraph 3 of Schedule 10 to the Equality Act 2010
(accessibility plan).

(4) 25In this section—

• “disabled person” means a person who is a disabled person for the
  purposes of the Equality Act 2010;

• “disabled pupil” includes a disabled person who may be admitted to a
  school as a pupil.

30Information to improve well-being of children and young people with SEN

65 Provision and publication of special needs information

(1) The Secretary of State must exercise the powers listed in subsection (2) with a
view to securing, in particular, the provision of special needs information
which the Secretary of State thinks would be likely to assist the Secretary of
35State or others in improving the well-being of—

(a) children in England with special educational needs, and

(b) young people aged under 19 in England with special educational
needs.

(2) The powers are those of the Secretary of State under the following provisions
40of EA 1996 (so far as relating to England)—

(a) section 29 (information from local authorities for purposes of Secretary
of State’s functions);

(b) section 408 (information in relation to maintained schools);

(c) section 537 (information about schools);

(d) section 537A (information about individual pupils);

(e) section 537B (information about children receiving funded education
outside school);

(f) section 538 (information from governing bodies for purposes of
5Secretary of State’s education functions).

(3) In each calendar year, the Secretary of State must publish, or arrange to be
published, special needs information which has been obtained under EA 1996,
where the Secretary of State thinks the publication of the information would be
likely to assist the Secretary of State or others in improving the well-being of —

(a) 10children in England with special educational needs, and

(b) young people aged under 19 in England with special educational
needs.

(4) Information published under subsection (3) must be published in the form and
manner that the Secretary of State thinks fit, except that the names of the
15children and young people to whom the information relates must not be
included.

(5) The Secretary of State may make a charge, or arrange for a charge to be made,
for documents supplied by virtue of this section.

(6) A charge under subsection (5) must not exceed the cost of supply.

(7) 20“Special needs information” means—

(a) information about children, and young people, in England with special
educational needs, and

(b) information about special educational provision made for those
children and young people.

(8) 25References in this section to the well-being of children and young people with
special educational needs are 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) 30participation 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.

Code of practice

66 35Code of practice

(1) The Secretary of State must issue a code of practice giving guidance about the
exercise of their functions under this Part to—

(a) local authorities in England;

(b) the governing bodies of schools;

(c) 40the governing bodies of institutions within the further education sector;

(d) the proprietors of Academies;

(e) the management committees of pupil referral units;

(f) the proprietors of institutions approved by the Secretary of State under
section 41 (independent special schools and special post-16 institutions:
approval);

(g) providers of relevant early years education;

(h) 5the National Health Service Commissioning Board;

(i) clinical commissioning groups;

(j) NHS trusts;

(k) NHS foundation trusts;

(l) Local Health Boards.

(2) 10The Secretary of State may revise the code from time to time.

(3) The Secretary of State must publish the current version of the code.

(4) The persons listed in subsection (1) must have regard to the code in exercising
their functions under this Part.

(5) Those who exercise functions for the purpose of the exercise by those persons
15of functions under this Part must also have regard to the code.

(6) The First-tier Tribunal must have regard to any provision of the code that
appears to it to be relevant to a question arising on an appeal under this Part.

67 Making and approval of code

(1) Where the Secretary of State proposes to issue or revise a code under section
2066, the Secretary of State must prepare a draft of the code (or revised code).

(2) The Secretary of State must consult such persons as the Secretary of State
thinks fit about the draft and must consider any representations made by them.

(3) If the Secretary of State decides to proceed with the draft (in its original form
or with modifications), the Secretary of State must lay a copy of the draft before
25each House of Parliament.

(4) If, within the 40-day period, either House resolves not to approve the draft, the
Secretary of State may not take any further steps in relation to the proposed
code (or proposed revised code).

(5) If no such resolution is made within the 40-day period, the Secretary of State
30must issue the code (or revised code) in the form of the draft, and it comes into
force on such date as the Secretary of State may by order appoint.

(6) Subsection (4) does not prevent a new draft of a proposed code (or proposed
revised code) from being laid before Parliament.

(7) In this section “40-day period”, in relation to the draft of a proposed code (or
35proposed revised code), means—

(a) if the draft is laid before one House on a later day than the day on which
it is laid before the other, the period of 40 days beginning with the later
of the two days, and

(b) in any other case, the period of 40 days beginning with the day on
40which the draft is laid before each House.

(8) For the purposes of subsection (7), no account is to be taken of any period
during which Parliament is dissolved or prorogued or during which both
Houses are adjourned for more than four days.

Supplementary

68 Parents and young people lacking capacity

(1) Regulations may apply any statutory provision with modifications, for the
purpose of giving effect to this Part in a case where the parent of a child, or a
5young person, lacks capacity at the relevant time.

(2) Regulations under subsection (1) may in particular include provision for—

(a) references to a child’s parent to be read as references to, or as including
references to, a representative of the parent;

(b) references to a young person to be read as references to, or as including
10references to, a representative of the young person, the young person’s
parent, or a representative of the young person’s parent;

(c) modifications to have effect in spite of section 27(1)(g) of the Mental
Capacity Act 2005 (Act does not permit decisions on discharging
parental responsibilities in matters not relating to a child’s property to
15be made on a person’s behalf).

(3) “Statutory provision” means a provision made by or under this or any other
Act, whenever passed or made.

(4) “The relevant time” means the time at which, under the statutory provision in
question, something is required or permitted to be done by or in relation to the
20parent or young person.

(5) The reference in subsection (1) to lacking capacity is to lacking capacity within
the meaning of the Mental Capacity Act 2005.

(6) “Representative”, in relation to a parent or young person, means—

(a) a deputy appointed by the Court of Protection under section 16(2)(b) of
25the Mental Capacity Act 2005 to make decisions on the parent’s or
young person’s behalf in relation to matters within this Part;

(b) the donee of a lasting power of attorney (within the meaning of section
9 of that Act) appointed by the parent or young person to make
decisions on his or her behalf in relation to matters within this Part;

(c) 30an attorney in whom an enduring power of attorney (within the
meaning of Schedule 4 to that Act) created by the parent or young
person is vested, where the power of attorney is registered in
accordance with paragraphs 4 and 13 of that Schedule or an application
for registration of the power of attorney has been made.

69 35Part does not apply to detained children and young people

Nothing in or made under this Part applies to a child or young person who is
detained in pursuance of—

(a) an order made by a court, or

(b) an order of recall made by the Secretary of State.

70 40Disapplication of Chapter 1 of Part 4 of EA 1996 in relation to children in
England

Chapter 1 of Part 4 of EA 1996 (children with special educational needs) ceases
to apply in relation to children in the area of a local authority in England.