Children and Families Bill (HL Bill 83)

(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
5maintained.

(10) This section does not affect the operation of section 59 (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) 10This 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) 15Subsection (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
20she 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
25for 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
30authority 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
35consult 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) 40that 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 or
section 67 during 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
5accordance with an EHC plan.

(7) The authority must notify the child’s parent or the young person—

(a) that it is considering securing an EHC needs assessment for the child or
young person, and

(b) that the parent or young person has the right to—

(i) 10express views to the authority (orally or in writing), and

(ii) submit evidence to the authority.

(8) The local authority must secure an EHC needs assessment for the child or
young person if, after having regard to any views expressed and evidence
submitted under subsection (7), the authority is of the opinion that—

(a) 15the child or young person has or may have special educational needs,
and

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

(9) After an EHC needs assessment has been carried out, the local authority must
20notify the child’s parent or the young person of—

(a) the outcome of the assessment,

(b) whether it proposes to secure that an EHC plan is prepared for the child
or young person, and

(c) the reasons for that decision.

(10) 25In making a determination or forming an opinion for the purposes of this
section in relation to a young person aged over 18, a local authority must
consider whether he or she requires additional time, in comparison to the
majority of others of the same age who do not have special educational needs,
to complete his or her education or training.

(11) 30Regulations may make provision about EHC needs assessments, in
particular—

(a) about requests under subsection (1);

(b) imposing time limits in relation to consultation under subsection (4);

(c) about giving notice;

(d) 35about expressing views and submitting evidence under subsection (7);

(e) about how assessments are to be conducted;

(f) about advice to be obtained in connection with an assessment;

(g) about combining an EHC needs assessment with other assessments;

(h) about the use for the purposes of an EHC needs assessment of
40information obtained as a result of other assessments;

(i) 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;

(j) about the provision of information, advice and support in connection
45with 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
5with 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) 10the 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
15special 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) Regulations may make provision about the preparation, content, maintenance,
amendment and disclosure of EHC plans.

(5) 20Regulations under subsection (4) about amendments of EHC plans must
include provision applying section 33 (mainstream education for children and
young people with EHC plans) to a case where an EHC plan is to be amended
under those regulations.

38 Preparation of EHC plans: draft plan

(1) 25Where 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
about 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) 30give the parent or young person notice of his or her right to—

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

(ii) request 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) 35a 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) 40an 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
any 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) 5specify a type of school or other institution.

39 Finalising EHC plans: request for particular school or other institution

(1) This section applies where, before the end of the period specified in a notice
under section 38(2)(b), a request is made to a local authority to secure that a
particular school or other institution is named in an EHC plan.

(2) 10The local authority must consult—

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

(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) 15if a school or other institution is within paragraph (a) or (b) and is
maintained by another local authority, that authority.

(3) The local authority must secure that the EHC plan names the school or other
institution specified in the request, unless subsection (4) applies.

(4) This subsection applies where—

(a) 20the school or other institution requested is unsuitable for the age,
ability, aptitude or special educational needs of the child or young
person concerned, or

(b) the attendance of the child or young person at the requested school or
other institution would be incompatible with—

(i) 25the provision of efficient education for others, or

(ii) the efficient use of resources.

(5) Where subsection (4) applies, the local authority must secure that the plan—

(a) names a school or other institution which the local authority thinks
would be appropriate for the child or young person, or

(b) 30specifies the type of school or other institution which the local authority
thinks would be appropriate for the child or young person.

(6) Before securing that the plan names a school or other institution under
subsection (5)(a), the local authority must (if it has not already done so)
consult—

(a) 35the 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.

(7) The local authority must, at the end of the period specified in the notice under
40section 38(2)(b), secure that any changes it thinks necessary are made to the
draft EHC plan.

(8) The local authority must send a copy of the finalised EHC plan to—

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

(b) the governing body, proprietor or principal of any school or other
45institution named in the plan.

40 Finalising EHC plans: no request for particular school or other institution

(1) This section applies where no request is made to a local authority before the
end of the period specified in a notice under section 38(2)(b) to secure that a
particular school or other institution is named in an EHC plan.

(2) 5The 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 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) 10Before securing that the plan names a school or other institution under
subsection (2)(a), the local authority must consult—

(a) the governing body, proprietor or principal of any school or other
institution the authority is considering having named in the plan, and

(b) if that school or other institution is maintained by another local
15authority, that authority.

(4) The local authority must also secure that any changes it thinks necessary are
made to the draft EHC plan.

(5) The local authority must send a copy of the finalised EHC plan to—

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

(b) 20the governing body, proprietor or principal of any school or other
institution named in the plan.

41 Independent special schools and special post-16 institutions: approval

(1) The Secretary of State may approve an institution within subsection (2) for the
purpose of enabling the institution to be the subject of a request for it to be
25named in an EHC plan.

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

(a) an independent educational institution (within the meaning of Chapter
1 of Part 4 of ESA 2008)—

(i) which has been entered on the register of independent
30educational institutions in England (kept under section 95 of
that Act), and

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

(b) an independent school—

(i) 35which has been entered on the register of independent schools
in Wales (kept under section 158 of the Education Act 2002), and

(ii) which 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
40further 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
45under 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) 5about 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
10accordance 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) 15If 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) 20Subsections (2) and (3) do not apply if 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) 25a 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) 30an 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) 35Subsection (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
40first made, and

(b) in each subsequent period of 12 months starting with the date on which
the plan was last reviewed under this section.

(2) A local authority must secure a re-assessment of the educational, health care
and social care needs of a child or young person for whom it maintains an EHC
5plan if a request is made to it by—

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

(b) the governing body, proprietor or principal of the school, post-16
institution or other institution which the child or young person attends.

(3) A local authority may also secure a re-assessment of those needs at any other
10time if it thinks it necessary.

(4) Subsections (1) and (2) are subject to any contrary provision in regulations
made under subsection (7)(b).

(5) In reviewing an EHC plan maintained for a young person aged over 18, or
deciding whether to secure a re-assessment of the needs of such a young
15person, a local authority must have regard to whether the educational or
training outcomes specified in the plan have been achieved.

(6) During a review or re-assessment, a local authority must consult the parent of
the child, or the young person, for whom it maintains the EHC plan.

(7) Regulations may make provision about reviews and re-assessments, in
20particular—

(a) about other circumstances in which a local authority must or may
review an EHC plan or secure a re-assessment (including before the
end of a specified phase of a child’s or young person’s education);

(b) about circumstances in which it is not necessary for a local authority to
25review an EHC plan or secure a re-assessment;

(c) about amending or replacing an EHC plan following a review or re-
assessment.

(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
30assessments, with or without modifications.

(9) Regulations under subsection (7)(c) must include provision applying section
33 (mainstream education for children and young people with EHC plans) to a
case where an EHC plan is to be amended following a review.

45 Ceasing to maintain an EHC plan

(1) 35A local authority may cease to maintain an EHC plan for a child or young
person only if—

(a) the authority is no longer responsible for the child or young person, or

(b) the authority determines that it is no longer necessary for the plan to be
maintained.

(2) 40The 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 young person aged over 18 no longer requires
45the special educational provision specified in his or her EHC plan, a local

authority must have regard to whether the educational or training outcomes
specified in the plan have been achieved.

(4) A local authority may not cease to maintain an EHC plan for a child or young
person until—

(a) 5after 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) after the appeal has been finally determined, where such an appeal is
brought before the end of that period.

(5) 10Regulations 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
to be maintained;

(b) circumstances in which a local authority may not determine that it is no
15longer necessary for an EHC plan to be maintained;

(c) the procedure to be followed by a local authority when determining
whether to cease to maintain an EHC plan.

46 Maintaining an EHC plan after young person’s 25th birthday

(1) A local authority may continue to maintain an EHC plan for a young person
20until 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
date.

47 Transfer of EHC plans

(1) 25Regulations 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
young person.

(2) The regulations may in particular—

(a) 30impose 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
done by the other authority.

48 Release of child or young person for whom EHC plan previously maintained

(1) 35This section applies where—

(a) a child or young person who has been subject to a detention order
(within the meaning of section 562(1A)(a) of EA 1996) is released,

(b) on the release date, a local authority in England becomes responsible
for him or her, and

(c) 40an EHC plan was—

(i) maintained for him or her immediately before the start of the
detention, or

(ii) kept for him or her under section 70 during the detention.

(2) The local authority must—

(a) maintain the plan, and

(b) review the plan as soon as reasonably practicable after the release date.

(3) Subsection (2)(b) is subject to any contrary provision in regulations under
5section 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
him or her if asked to do so by the child’s parent or the young person.

(2) 10The 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) Regulations may make provision about personal budgets, in particular—

(a) 15about 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
budget to be made to a child’s parent or a young person, or a person of
20a prescribed description in prescribed circumstances, in order to secure
provision to which the budget relates;

(e) about the description of provision to which personal budgets and direct
payments may (and may not) relate;

(f) for a personal budget or direct payment to cover the agreed cost of the
25provision 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
recovery of unpaid sums;

(i) 30about 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) If the regulations include provision authorising direct payments, they must—

(a) 35require 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
required consent is withdrawn.

(5) 40Special 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) Subsection (7) applies if—

(a) 45an 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
health care).

(7) 5The 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,
means a body that is under a duty to arrange health care provision of that kind
10in 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—

“17ZD Section 17 services: continued provision where EHC plan maintained

(1) 15This 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) an EHC plan is maintained for the child.

(2) 20The local authority may continue to provide services for the child in the
exercise of those functions after the child reaches the age of 18, but may
not continue to do so after the EHC plan has ceased to be maintained.

(3) In this section “EHC plan” means a plan within section 37(2) of the
Children and Families Act 2014.”

25Appeals, 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) The matters are—

(a) 30a decision of a local authority not to secure an EHC needs assessment
for the child or young person;

(b) a decision of a local authority, following an EHC needs assessment, that
it is not necessary for special educational provision to be made for the
child or young person in accordance with an EHC plan;

(c) 35where 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
40school or other institution specified in the plan;

(iv) if no school or other institution is named in the plan, that fact;