Children and Families Bill (HL Bill 83)

(3) Where this subsection applies, the home authority must determine whether it
may be necessary for special educational provision to be made for the detained
person in accordance with an EHC plan on release from detention.

(4) Subsection (3) applies where—

(a) 5a request is made under subsection (2),

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

(c) the detained person has otherwise come to the home authority’s
10attention as someone who has or may have special educational needs.

(5) In making a determination under subsection (3), the home authority must
consult—

(a) the appropriate person, and

(b) the person in charge of the relevant youth accommodation where the
15detained person is detained.

(6) Where the home authority determines that it will not be necessary for special
educational provision to be made for the detained person in accordance with
an EHC plan on release from detention, it must notify the appropriate person
and the person in charge of the relevant youth accommodation where the
20detained person is detained—

(a) of the reasons for that determination, and

(b) that accordingly it has decided not to secure a detained person’s EHC
needs assessment for the detained person.

(7) Subsection (8) applies where—

(a) 25the detained person has not been assessed under this section or section
36 during the previous six months, and

(b) the home authority determines that it may be necessary for special
educational provision to be made for the detained person in accordance
with an EHC plan on release from detention.

(8) 30The home authority must notify the appropriate person and the person in
charge of the relevant youth accommodation where the detained person is
detained—

(a) that it is considering securing a detained person’s EHC needs
assessment for the detained person, and

(b) 35that the appropriate person and the person in charge of the relevant
youth accommodation where the detained person is detained each
have the right to—

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

(ii) submit evidence to the authority.

(9) 40The home authority must secure a detained person’s EHC needs assessment if,
after having regard to any views expressed and evidence submitted under
subsection (8), the authority is of the opinion that—

(a) the detained person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the
45detained person in accordance with an EHC plan on release from
detention.

(10) After a detained person’s EHC needs assessment has been carried out, the local
authority must notify the appropriate person and the person in charge of the
relevant youth accommodation where the detained person is detained of—

(a) the outcome of the assessment,

(b) 5whether it proposes to secure that an EHC plan is prepared for the
detained person, and

(c) the reasons for that decision.

(11) Regulations may make provision about detained persons’ EHC needs
assessments, in particular—

(a) 10about requests under subsection (2);

(b) imposing time limits in relation to consultation under subsection (5);

(c) about giving notice;

(d) about expressing views and submitting evidence under subsection (8);

(e) about how detained persons’ EHC needs assessments are to be
15conducted;

(f) about advice to be obtained in connection with a detained person’s
EHC needs assessment;

(g) about combining a detained person’s EHC needs assessment with
other assessments;

(h) 20about the use for the purposes of a detained person’s EHC needs
assessment of information obtained as a result of other assessments;

(i) about the use of information obtained as a result of a detained person’s
EHC needs assessment, including the use of that information for the
purposes of other assessments;

(j) 25about the provision of information, advice and support in connection
with a detained person’s EHC needs assessment.

68 Securing EHC plans for certain detained persons

(1) Where, in the light of a detained person’s EHC needs assessment it is necessary
for special education provision to be made for the detained person in
30accordance with an EHC plan on release from detention, the home authority
must secure that an EHC plan is prepared for him or her.

(2) Sections 37(2) to (5) and 38 to 40 apply in relation to an EHC plan secured under
subsection (1) as they apply to an EHC plan secured under section 37(1), with
the following modifications—

(a) 35references to “the child or young person” are to be read as references to
the detained person,

(b) references to the local authority are to be read as references to the home
authority, and

(c) references to the child’s parent or the young person are to be read as
40references to the appropriate person.

(3) Section 33(2) to (7) apply where a home authority is securing the preparation
of an EHC plan under this section as they apply where a local authority is
securing a plan under section 37, with the following modifications—

(a) references to “the child or young person” are to be read as references to
45the detained person,

(b) references to the local authority are to be read as references to the home
authority,

(c) references to the child’s parent or the young person are to be read as
references to the appropriate person, and

(d) the reference in subsection (2) to section 39(5) and 40(2) is to be read as
a reference to those provisions as applied by subsection (2) of this
5section.

69 EHC plans for certain detained persons: appeals and mediation

(1) An appropriate person in relation to a detained person may appeal to the First-
tier Tribunal against the matters set out in subsection (2), subject to section 52
(as applied by this section).

(2) 10The matters are—

(a) a decision of the home authority not to secure a detained person’s EHC
needs assessment for the detained person;

(b) a decision of the home authority, following a detained person’s EHC
needs assessment, that it is not necessary for special educational
15provision to be made for the detained person in accordance with an
EHC plan on release from detention;

(c) where an EHC plan is secured for the detained person—

(i) the school or other institution named in the plan, or the type of
school or other institution named in the plan;

(ii) 20if no school or other institution is named in the plan, that fact.

(3) The appropriate person may appeal to the First-tier Tribunal under subsection
(2)(c) only when an EHC plan is first finalised for the detained person in
accordance with section 68.

(4) Regulations may make provision about appeals to the First-tier Tribunal in
25respect of EHC plans secured under section 68, in particular about—

(a) making and determining appeals;

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

(c) unopposed appeals.

(5) A person commits an offence if without reasonable excuse that person fails to
30comply 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.

(6) 35A person guilty of an offence under subsection (5) is liable on summary
conviction to a fine not exceeding level 3 on the standard scale.

(7) Section 52(2) to (9) apply where an appropriate person intends to appeal to the
First-tier Tribunal under this section as they apply where a child’s parent or
young person intends to appeal under section 51, with the following
40modifications—

(a) references to the child’s parent or young person are to be read as
references to the appropriate person, and

(b) references to the local authority are to be read as references to the home
authority.

(8) Regulations under subsection (7) of section 52 may make provision for the
purposes of subsection (7) of this section, and accordingly in subsection (7)(f)
of section 52—

(a) the reference to a child’s parent is to be read as a reference to the parent
5of a detained person who is a child, and

(b) the reference to the child is to be read as a reference to a detained person
who is a child.

70 Duty to keep EHC plans for detained persons

(1) This section applies in relation to a detained person—

(a) 10for whom a local authority in England was maintaining an EHC plan
immediately before the beginning of his or her detention, or

(b) for whom the home authority has secured the preparation of an EHC
plan under section 68.

(2) The home authority must keep the EHC plan while the person is detained in
15relevant youth accommodation.

(3) Regulations may make provision about the keeping of EHC plans under
subsection (2), and the disclosure of such plans.

(4) The home authority must use its best endeavours to arrange appropriate
special educational provision for the detained person while he or she is
20detained in relevant youth accommodation.

(5) If the EHC plan specifies health care provision, the detained person’s health
services commissioner must use its best endeavours to arrange appropriate
health care provision for the detained person while he or she is detained in
relevant youth accommodation.

(6) 25For the purposes of subsection (4), appropriate special educational provision
is—

(a) the special educational provision specified in the EHC plan,

(b) educational provision corresponding as closely as possible to the
special educational provision specified in the plan, or

(c) 30if it appears to the home authority that the special educational
provision specified in the plan is no longer appropriate for the person,
such special educational provision as reasonably appears to the home
authority to be appropriate.

(7) For the purposes of subsection (5), appropriate health care provision is—

(a) 35the health care provision specified in the EHC plan,

(b) health care provision corresponding as closely as possible to the health
care provision specified in the plan, or

(c) if it appears to the detained person’s health services commissioner that
the health care provision specified in the plan is no longer appropriate
40for the person, such health care provision as reasonably appears to the
detained person’s health services commissioner to be appropriate.

(8) In this section, “detained person’s health services commissioner”, in relation to
a detained person, means the body that is under a duty under the National
Health Service Act 2006 to arrange for the provision of services or facilities in
45respect of the detained person during his or her detention.

71 Supply of goods and services: detained persons

(1) A local authority in England may supply goods and services to any authority
or other person making special educational provision for a detained person,
but only for the purpose set out in subsection (2).

(2) 5The purpose is that of assisting the local authority in the performance of a duty
under section 70.

(3) The goods and services may be supplied on the terms and conditions that the
authority thinks fit, including terms as to payment.

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

72 10Provision 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
State or others in improving the well-being of—

(a) 15children 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
of EA 1996 (so far as relating to England)—

(a) 20section 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) 25section 537B (information about children receiving funded education
outside school);

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

(3) In each calendar year, the Secretary of State must publish, or arrange to be
30published, 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) children in England with special educational needs, and

(b) young people aged under 19 in England with special educational
35needs.

(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
children and young people to whom the information relates must not be
included.

(5) 40The 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) “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) 5References 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) 10participation 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

73 15Code 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) 20the 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:
25approval);

(g) providers of relevant early years education;

(h) the National Health Service Commissioning Board;

(i) clinical commissioning groups;

(j) NHS trusts;

(k) 30NHS foundation trusts;

(l) Local Health Boards.

(2) The 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
35their functions under this Part.

(5) Those who exercise functions for the purpose of the exercise by those persons
of 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.

74 40Making and approval of code

(1) Where the Secretary of State proposes to issue or revise a code under section
73, 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
5each House of Parliament.

(4) The Secretary of State may not take any further steps in relation to—

(a) a proposed code unless the draft is approved by a resolution of each
House, or

(b) a proposed revised code if, within the 40-day period, either House
10resolves not to approve the draft.

(5) Subsection (6) applies if—

(a) both Houses resolve to approve the draft, as mentioned in subsection
(4)(a), or

(b) neither House resolves not to approve the draft, as mentioned in
15subsection (4)(b).

(6) The Secretary of State must 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.

(7) Subsection (4) does not prevent a new draft of a proposed code (or proposed
20revised code) from being laid before Parliament.

(8) In this section “40-day period”, in relation to the draft of a proposed 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
25of the two days, and

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

(9) For the purposes of subsection (8), no account is to be taken of any period
during which Parliament is dissolved or prorogued or during which both
30Houses are adjourned for more than four days.

Supplementary

75 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
35young 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
40references 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
45be 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
5parent 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
10the 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) 15an 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.

76 20Part 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.

77 25Disapplication 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.

78 Consequential amendments

30Schedule 3 (amendments consequential on this Part) has effect.

79 Interpretation of Part

3

(1) In this Part—

• “EA 1996” means the Education Act 1996;

• 35“ESA 2008” means the Education and Skills Act 2008;

• “SSFA 1998” means the School Standards and Framework Act 1998.

(2) In this Part—

• “appropriate person” has the meaning given by section 66(5);

• “beginning of the detention” has the meaning given by section 66(6);

• 40“detained person” has the meaning given by section 66(5);

• “detained person’s EHC needs assessment” has the meaning given by
  section 66(5);

Children and Families BillPage 58

• “education, health and care provision” has the meaning given by section
  26(2);

• “EHC needs assessment” has the meaning given by section 36(2);

• “EHC plan” means a plan within section 37(2);

• 5“health care provision” has the meaning given by section 21(3);

• “the home authority” has the meaning given by section 66(6) (subject to
  subsection (7) of that section);

• “mainstream post-16 institution” means a post-16 institution that is not a
  special post-16 institution;

• 10“mainstream school” means—

  (a)

  a maintained school that is not a special school, or

  (b)

  an Academy school that is not a special school;

• “maintained school” means—

  (a)

  a community, foundation or voluntary school, or

  (b)

  15a community or foundation special school not established in a
  hospital;

• “post-16 institution” means an institution which—

  (a)

  provides education or training for those over compulsory
  school age, but

  (b)

  20is not a school or other institution which is within the higher
  education sector or which provides only higher education;

• “proprietor”, in relation to an institution that is not a school, means the
  person or body of persons responsible for the management of the
  institution;

• 25“relevant early years education” has the meaning given by section 123 of
  SSFA 1998;

• “relevant youth accommodation” has the meaning given by section 66(5);

• “social care provision” has the meaning given by section 21(4);

• “social services functions” in relation to a local authority has the same
  30meaning as in the Local Authority Social Services Act 1970;

• “special educational needs” has the meaning given by section 20(1);

• “special educational provision” has the meaning given by section 21(1)
  and (2);

• “special post-16 institution” means a post-16 institution that is specially
  35organised to make special educational provision for students with
  special educational needs;

• “training” has the same meaning as in section 15ZA of EA 1996;

• “young person” means a person over compulsory school age but under
  25.

(3) 40A child or young person has a disability for the purposes of this Part if he or
she has a disability for the purposes of the Equality Act 2010.

(4) A reference in this Part to “education”—

(a) includes a reference to full-time and part-time education, but

(b) does not include a reference to higher education,

45and “educational” and “educate” (and other related terms) are to be read
accordingly.

(5) A reference in this Part to—

(a) a community, foundation or voluntary school, or

(b) a community or foundation special school,

is to such a school within the meaning of SSFA 1998.

(6) A reference in this Part to a child or young person who is “in the area” of a local
authority in England does not include a child or young person who is wholly
5or mainly resident in the area of a local authority in Wales.

(7) EA 1996 and the preceding provisions of this Part (except so far as they amend
other Acts) are to be read as if those provisions were contained in EA 1996.

Part 4 Childcare etc

80 10Childminder agencies

Schedule 4 (amendments to the Childcare Act 2006 to provide for the
registration of childminder agencies on the childcare registers and the
registration of certain childcare providers with those agencies, and other
related amendments) has effect.

81 15Inspections at request of providers of childcare to young children

In section 49 of the Childcare Act 2006 (inspections of early years provision),
after subsection (5) insert—

“(5A) The Chief Inspector may charge a prescribed fee for conducting an
inspection of early years provision where—

(a) 20the inspection is conducted at the request of a registered person
who provides that early years provision, and

(b) the Chief Inspector is required by the Secretary of State under
subsection (2)(b) to conduct that inspection.”

82 Repeal of local authority’s duty to assess sufficiency of childcare provision

25Section 11 of the Childcare Act 2006 (duty of local authority in England to
assess sufficiency of childcare provision) is repealed.

83 Discharge of authority’s duty to secure free early years provision

(1) Part 1 of the Childcare Act 2006 (general functions of local authorities in
England in relation to childcare) is amended as follows.

(2) 30After section 7 (duty to secure early years provision free of charge in
accordance with regulations) insert—

“7A Discharge of duty under section 7

(1) Regulations may require an English local authority to discharge its
duty to a young child under section 7 by making arrangements which
35secure that an early years provider chosen by a parent of the child
provides the early years provision to which the child is entitled in cases
where—

(a) the early years provider is willing to provide it, and

(b) the early years provider is also willing to accept—