Children and Families Bill (HL Bill 32)

(j) about the use of information obtained as a result of an EHC needs
assessment, including the use of that information for the purposes of
other assessments;

(k) about the provision of information, advice and support in connection
5with an EHC needs assessment.

Education, health and care plans

37 Education, health and care plans

(1) Where, in the light of an EHC needs assessment, it is necessary for special
educational provision to be made for a child or young person in accordance
10with an EHC plan—

(a) the local authority must secure that an EHC plan is prepared for the
child or young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.

(2) For the purposes of this Part, an EHC plan is a plan specifying—

(a) 15the child’s or young person’s special educational needs;

(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 reasonably required by the
learning difficulties and disabilities which result in him or her having
20special educational needs.

(3) An EHC plan may also specify other health care and social care provision
reasonably required by the child or young person.

(4) In 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.

(5) 25Regulations may make provision about the preparation, content and
maintenance of EHC plans.

38 Preparation of EHC plans: draft plan

(1) Where 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
30about 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) give the parent or young person notice of his or her right to—

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

(ii) 35request 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) a maintained school;

(b) a maintained nursery school;

(c) 40an 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
(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
5any representations or requests must be made.

(5) The 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) 10This 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—

(a) the governing body, proprietor or principal of the school or other
15institution,

(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
maintained by another local authority, that authority.

(3) 20The 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,
ability, aptitude or special educational needs of the child or young
25person 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) the efficient use of resources.

(5) 30Where 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
thinks would be appropriate for the child or young person.

(6) 35Before 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
institution the authority is considering having named in the plan, and

(b) 40if 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
draft EHC plan.

(8) 45The 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 Finalising EHC plans: no request for particular school or other institution

(1) 5This 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) names a school or other institution which the local authority thinks
10would 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
subsection (2)(a), the local authority must consult—

(a) 15the 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
20made 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
institution named in the plan.

41 25Independent 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
named in an EHC plan.

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

(a) 30an 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
that Act), and

(ii) 35which is specially organised to make special educational
provision for students with special educational needs,

(b) an independent school—

(i) which has been entered on the register of independent schools
in Wales (kept under section 158 of the Education Act 2002), and

(ii) 40which is specially organised to make special educational
provision for pupils with special educational needs, or

(c) a special post-16 institution which is not an institution within the
further 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
5under 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) 10about 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 and health care provision in
15accordance with EHC Plan

(1) This section applies where a local authority maintains an EHC plan for a child
or young person.

(2) The local authority must secure the specified special educational provision for
the child or young person.

(3) 20If 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
care provision of that kind in respect of the child or young person.

(5) 25Subsections (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

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

(a) 30a 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) 35an 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
body of a school by section 1(6) of SSFA 1998.

(4) 40Subsection (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—

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

(b) 5in 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) 10the 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) 15Subsections (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) 20During 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
25review 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-
30assessment.

(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
3533 (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
person only if—

(a) 40the 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) 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

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
special educational provision specified in his or her EHC plan, a local authority
5must 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
regard to his or her age.

(5) 10A 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
51 against its decision to cease to maintain the plan, where no such
appeal is brought before the end of that period;

(b) 15after 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) other circumstances in which it is no longer necessary for an EHC plan
20to 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
whether to cease to maintain an EHC plan.

46 25Maintaining 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) “Academic year” means the period of twelve months ending on the prescribed
30date.

47 Transfer of EHC plans

(1) Regulations may make provision for an EHC plan maintained for a child or
young person by one local authority to be transferred to another local authority
in England, where the other authority becomes responsible for the child or
35young person.

(2) The regulations may in particular—

(a) impose a duty on the other authority to maintain the plan;

(b) treat the plan as if originally prepared by the other authority;

(c) treat things done by the transferring authority in relation to the plan as
40done by the other authority.

48 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).

49 Personal budgets and direct payments

(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) Special educational provision acquired by means of a direct payment made by
a local authority is to be treated as having been secured by the authority in
pursuance of its duty under section 42(2), subject to any prescribed conditions
or exceptions.

(6) 5Subsection (7) applies if—

(a) an EHC plan is maintained for a child or young person, and

(b) health care provision specified in the plan is acquired for him or her by
means of a payment made by a commissioning body under section
12A(1) of the National Health Service Act 2006 (direct payments for
10health care).

(7) The health care provision is to be treated as having been arranged by the
commissioning body in pursuance of its duty under section 42(3) of this Act,
subject to any prescribed conditions or exceptions.

(8) “Commissioning body”, in relation to any specified health care provision,
15means a body that is under a duty to arrange health care provision of that kind
in respect of the child or young person.

50 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)
insert—

“17ZA 20 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) a local authority in England is providing services for the child
in the exercise of functions conferred by section 17, and

(b) 25an 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
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
30Children and Families Act 2013.”

Appeals, mediation and dispute resolution

51 Appeals

(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 52 (mediation).

(2) 35The matters are—

(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
40child 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
specified 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) 5a 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
10following 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) 15when 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
20brought;

(b) making and determining appeals;

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

(d) unopposed appeals.

(5) A person commits an offence if without reasonable excuse that person fails to
25comply 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).

(6) 30A person guilty of an offence under subsection (5) is liable on summary
conviction to a fine not exceeding level 3 on the standard scale.

52 Mediation

(1) This section applies where a child’s parent or young person intends to appeal
to the First-tier Tribunal under section 51 or regulations made under that
35section 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) 40the 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) the 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) 5A 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
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
10the local authority, and

(b) participated 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) 15the authority must arrange for, and participate in, mediation between
it 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) 20imposing time limits;

(c) about 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) 25where a child’s parent is a party to mediation, requiring the mediator
to 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
30expenses of a prescribed description, up to any prescribed limit;

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

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

(8) 35In this section “mediation adviser” means an independent person who can
provide 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.

40For this purpose, a person who is employed by a local authority in England is
not independent.

53 Resolution of disagreements

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

(2) 45The 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.