Supplementary memorandum from the Wales
Office
PROPOSED DRAFT ADDITIONAL LEARNING NEEDS
ORDER IN COUNCIL
DISCRIMINATION BY
ASSOCIATION
1. The Assembly Minister has stated that
those discriminated against by association (for example, a person
with a sensory-impaired parent) fall outside the scope of the
proposed Order. Is this also the Wales Office's assessment?
The Order is drafted to encompass all persons
with a disability. For the purpose of matter 5.17 a person has
a disability if that person has a physical or mental impairment.
Sensory impairment is a physical disability. Such persons would
therefore come within the scope of the Order provided that they
receive education or training.
"Associated" persons fall outside
the scope of the proposed Order. The Order is intended to give
the Assembly legislative competence to make measures in relation
to Matter 5.17 which concern direct participants in education
or training.
OUT OF
HOURS SCHOOL
PROVISION
2. Would the proposed Order enable policy-making
in respect of out-of-hours school provision?
The Welsh Assembly Government is fully committed
to out of school learning and believes that it should be an integral
part of child's education. The aim of the provision as endorsed
in by The Learning Country—Vision into Action is
to tackle poverty of educational opportunities and raise standards
in schools, enrich informal learning and help raise standards
in basic and key skills as well as in the curriculum areas of
personal, social and emotional development.
This Order would provide the Assembly with the
power to make Measures specifically aimed at supporting children
who fall within Matter 5.17 during out of school hours. The scope
of the Order does not extend to childcare provision outside those
hours.
"PHYSICAL AND
MENTAL IMPAIRMENT"
3. There has been considerable debate in
the Assembly Committee about the scope of "physical and mental
impairment" as a definition of disability. Would this definition
cover each of the following:
(a) Persons who have a sensory impairment,
including blindness?
I would first like to confirm that by leaving
the term "physical or mental impairment" unqualified,
the Welsh Assembly Government would refer to the World Health
Organisation's definition of disability. For the purposes of that
definition a disability is "any restriction or lack (resulting
from an impairment) of ability to perform an activity in the manner
or within the range considered normal for a human being".
If a person with impairment falls within the
scope of that definition and is also in receipt of education and
training then that person is within the scope of the proposed
Order. The same principle would also apply in determining whether
other possible disabilities would fall within the scope of the
Order.
Sensory impairment is a physical impairment
that falls within the WHO definition.
(b) Persons who have a broader communication
impairment?
Communication impairment is a physical impairment
that falls within the WHO definition.
(c) Past disabilities?
The scope of the Order does not encompass persons
who used to be disabled. The Order does however cover persons
who whilst no longer disabled, have greater difficulty in learning
than the majority of persons of his age as a direct consequence
of their former disability. For example a child who has cochlear
implants may no longer have a hearing disability but as a consequence
of that disability continues to have impaired speech which causes
that child difficulty in learning.
(d) Cancer and HIV?
Progressive conditions will fall within the
scope of the Order.
(e) Other long-term and degenerative
conditions?
This really depends on the actual nature of
the condition. If the condition does not fall within the WHO definition
of disability the condition may still satisfy the second criteria
of the Order. For example, the condition may mean that the person
has greater difficulty in learning than the majority of persons
of his age in which case the person would come within the scope
of the Order.
(f) Hyperactivity, emotional or social
difficulties and general poor health?
Hyperactivity
Whether hyperactivity falls within the WHO definition
of disability depends on the underlying cause of the condition.
For example, a child unable to concentrate on a specific matter
for a period of time, may have an underlying physical impairment
such as a hearing or vision difficulty so reacts with adverse
impulsive behaviour. Alternatively, the child may have a mental
impairment.
As confirmed previously, if the condition does
not fall within the WHO definition the person may still come within
the scope of the Order if that person has greater difficulty in
learning than the majority of persons of his age.
Emotional Difficulties
Committee members will be aware that the Scottish
model of additional support for learning includes emotional difficulties,
however evidence provided to the Assembly Committee by Estyn,
stresses that the context in Scotland is fundamentally different
in relation to structure and funding and this is an important
consideration. The Government of Wales Act has provided the opportunity
to tailor Welsh legislation to Welsh needs and that is the prime
focus.
We consider that the specific inclusion of emotional
difficulties would in effect broaden the Order to such an extent
that there is the potential of losing the prime purpose for acquiring
these powers—and the possible danger of diluting future
provision. Emotional difficulties that result in a greater difficulty
in learning, for whatever reason, will be captured within the
proposed definition.
Social Difficulties
Whether a social difficulty falls within the
WHO definition of disability again depends on the underlying cause
of the condition. However, social difficulties that result in
a greater difficulty in learning, for whatever reason, will be
captured within the proposed definition.
Poor Health
A person may well have poor health due to a
physical or mental impairment. Whether their health condition
falls within the WHO definition of disability consequently depends
on the underlying cause of the condition. Although health conditions
that result in a greater difficulty in learning, for whatever
reason, will be captured within the proposed definition.
(g) Disabilities that do not give rise
to additional education and training needs, or to any problems
with day-to-day functioning?
The purpose of the Order is to enable changes
to be made by way of Assembly Measure in relation to any aspect
of the organisation and delivery of special educational needs
in Wales. The intention is to ensure that Measures can be made
across a wider range of areas connected with the provision of
education for children and adults whose educational needs diverge
from those upon which the mainstream education system is currently
focussed.
The Order will give the Assembly legislative
competence to make Measures in relation to Matter 5.17 which concern
direct participants of Education or Training who have special
educational needs or additional learning needs. For instance,
this definition encompasses able and talented provided that they
also fall within the SEN regime. Persons who do not have special
educational needs or additional learning needs as defined by the
Order will not be covered.
4. If an additional category of sensory and
communication impairment was added to the definition of disability,
might that imply that "physical and mental impairment"
is not an all-embracing term and suggest that other categories
should also be included?
Yes. If the definition were extended the Assembly
believe it would cast doubt on and imply a limitation to, the
generality of the description currently used in the Order. An
unintended consequence of this would be to cast doubt as to whether
Assembly Measures made under the Order could make provision for
other impairments or perhaps in relation to other descriptions
of physical or mental impairments that may arise in the future.
That would undermine the whole purpose of this Order.
"PERSONS WHO
HAVE A
GREATER DIFFICULTY
IN LEARNING"
5. Can you give a precise definition of what
is meant by "persons who have a greater difficulty in learning",
as used in the proposed Order?
In particular, would the definition cover:
(a) people who do not have a learning
difficulty—but only because they are receiving, or have
received, additional support or treatment—for instance,
a person who has cochlear implants?
The Assembly's aim is to permit Measures to
be made that will give special educational treatment to an extended
category of persons, namely those with additional learning needs
The concept of additional learning needs is to be identified by
reference to a need for additional learning support which is required
or is reasonably required in order for a person to be able to
fully benefit from education and is additional to, or otherwise
different from, that comprised in the educational provision made
available generally for persons of the same age. The term additional
learning needs therefore relates to persons who have a greater
difficulty in learning because their learning support needs differ
from those of the majority of learners, the comparator being those
in mainstream education provision.
(a) A person with cochlear implants will
fall within the definition if for any reason they have greater
difficulty in learning than the majority of persons of the same
age as that person. For example a child who has had cochlear implants
may still have impaired speech which causes that child difficulty
in learning.
(b) extremely bright children, whom
Jane Hutt AM has said will be excluded unless they fall under
the current definition of SEN?
Any Measure made under this Order could make
provision for able and talented children but only if those children
have a greater difficulty in learning than the majority of those
their age and/or they are disabled.
Therefore, such a Measure could make provision
for able and talented children who currently fall under the SEN
regime.
CIRCUMSTANCES
6. Jane Hutt AM has stated that the Order
would not only cover persons whose learning difficulty arises
from their ability to learn, but also persons whose need for support
arises from their circumstances. For instance, she suggested that
a child-carer could be treated as having a learning difficulty.
Do you agree?
It is acknowledged that many young carers who
struggle to look after someone at home whilst attending school
experience difficulty in learning and achieving at school. It
is consequently proposed that a child in this situation who is
identified as having greater difficulty in learning than the majority
of children of the same age would fall within the scope of the
definition.
If yes:
(a) Are there limits to the circumstances
that could be recognised under the Order as giving rise to a learning
difficulty? For instance, would the Order apply to children who
have additional learning needs due to being "looked-after",
suffering from bullying, living with parents who have mental health
or substance abuse problems, or children who fall behind due to
truancy or bad behaviour?
No. The greater difficulty in learning can be
for any reason whatsoever.
(b) Should the Order be altered to
make it clear that a persons circumstances can give rise to a
recognised learning difficulty?
If the Committee should still hold to this view
and include it in its final report, then obviously it would become
a matter for us to consider.
DIFFERENT LANGUAGES
AT HOME
AND SCHOOL
7. Section 312 of the Education Act 1996
excludes from the category of "children with special needs"
those whose learning difficulty derives from having education
in a different language from that spoken at home. Does this exclusion
also apply in relation to the "persons" identified in
the Order? If not, can you confirm that Matters could be brought
in under this Measure to make provision in such cases?
Section 312(3) of the 1996 Act provides that
a child is not to be taken as having special education needs if
his learning difficulty is solely because the language (or form
of language) in which he is or will be taught is different from
the language (or form of language) which has been spoken in his
home.
The exclusion in section 312(3) of the Education
Act 1996 consequently applies to persons identified in the Order
who have "special educational needs".
The exclusion does not apply to persons identified
in the Order who do not have SEN but have additional learning
needs i.e. a greater difficulty in learning.
OMISSION OF
THE WORD
"SIGNIFICANTLY"
8. The 1996 Education Act defines someone
with learning difficulty as having "significantly greater
difficulty in learning than the majority of persons of his age".
Can you confirm that omitting the word "significantly"
from the Order ensures that persons with additional learning needs
would be captured by Measures made under the Order?
The proposed Order has been drafted to give
the Assembly flexibility to make Measures that benefit persons
who have additional learning needs that do not amount to special
educational needs for the purposes of the Education Act 1996 or
a "significant learning difficulty" for the purposes
of the Learning Skills Act 2000.
The definitions used in primary legislation
refer to children/persons who have a "significantly"
greater difficulty in learning than the majority of children/persons
of the same age of those children/persons in order to benefit
from learning difficulty provision. Two steps must be surmounted
before a person is captured by this definition: The person must
have a greater difficulty in learning than the majority, and in
addition that greater difficulty must be of a particular character
in that it must be "significantly" greater than the
difficulties of the majority. These definitions would not allow
the Assembly flexibility to make Measures that benefit persons
with additional learning needs—consequently the proposed
Order omits the word "significantly" to ensure that
any Measure made under this Order could capture those persons
with additional learning needs.
"SEN" / "GREATER
DIFFICULTY IN
LEARNING"
9. Would the 1996 Education Act's definition
of children with "special educational needs" be superseded
by the Order's reference to "persons who have a greater difficulty
in learning", for the purposes of Assembly Measures?
The Order itself does not alter or replace the
definitions in the Education Act 1996. But the Order will confer
powers on the Assembly to adjust the existing law as it sees fit.
It is too early to say at this stage how the
existing law will be adjusted. That will be for the Assembly to
consider by way of Measure.
DEFINITIONS
10. At the end of Field 5 it states: "Expressions
used in this field and in the Education Act 1996 have the same
meaning in this field as in that Act". How will this arrangement
allow for the fact that LCO's in the education field might want
to address the same expressions as are contained in the Act, but
may want to include a very different definition—for instance
the meaning of "learning difficulty"?
If a matter is inserted into Field 5 containing
an expression defined in the Education Act 1996, but which is
intended to have a different meaning to the 1996 Act expression,
then the interpretation section of Field 5 would need to be amended
accordingly. This would involve (a) inserting a definition of
the expression under the interpretation heading in Field 5, and
(b) inserting words which make it clear that where an expression
is given for the purposes of Field 5 a meaning different from
than given to it for the purposes of the Education Act 1996, the
meaning given for the purposes of Field 5 is to apply instead
of the one given for the purposes of the Education Act 1996.
The expression "learning difficulty"
is not used in the Order and so it does not engage the definition
of that expression in section 312(2) and (3) of the Education
Act 1996 for the purposes of the proposed matter 5.17. But if
the drafting of 5.17 had been approached in a different way using
the expression "learning difficulty", then a definition
of the term and further clarifying words as described above would
have been inserted into Field 5 because the Order is intended
to capture a wider group than that provided for in the definition
of learning difficulty in the 1996 Act.
TRAVEL ARRANGEMENTS
11. Travel arrangements are specifically
excluded from this Order because, the supplementary memorandum
from the Assembly confirms, they are dealt with under another
Matter, 5.10. Is it the Wales Office's view that Matter 5.10 provides
the Assembly with the legislative competence relating to transport
that is necessary to make full use of the competence conferred
under the Order? In particular:
(a) Matter 5.10 is restricted to travel
arrangements for persons receiving primary, secondary or further
education as defined in the Education Act 1996. This definition
specifically excludes higher education and those aged under two.
Can you envisage circumstances where the definition of a person
who is "receiving" "primary, secondary or further
education" in 5.10 will not cover transport for persons or
activities that are covered by the Order—with particular
reference to adult learners, the very young, and those in higher
education?
The scope of matter 5.10 would allow the Assembly
to make provision for the travel of persons with Special Educational
Needs, or Additional Learning Needs (including travel to extra
curricular activities) or disability provided that those persons
are in receipt of education or training.
(b) The Education and Learning Committee
of the Assembly recently conducted pre-legislative scrutiny of
the draft Learner Travel Measure that is due to be introduced
under 5.10. That Committee's Report made particular reference
to safety matters, which are excluded from 5.10, including seatbelts
and escorts on school buses. If there is a need for additional
competence on transport for education and training services, would
it be desirable to add the necessary competence to the LCO at
this stage?
The Assembly Government is currently considering
responses to the consultation on its proposed Learner Travel (Wales)
Measure, as well as evidence submitted to and considered by the
Assembly's Enterprise and Learning Committee which has been undertaking
a scrutiny of the proposed Measure. Many issues have been raised,
including some related to safety which are not within the competence
of the Assembly. The Deputy First Minister and Minister for the
Economy and Transport has said that he will consider, in the context
of the proposed Learner Travel Measure, those issues very carefully
before coming to a view on whether additional powers for the Assembly
should be sought. It is too early to offer a view on this in the
context of the Additional Learning Needs Order."
LISTING MATTERS
CLEARLY
12. As the number of Matters grows in particular
Fields, problems may occur from their listing in the chronological
order of their making. Matters that have some substantive content
in common will not necessarily be set out together or close by,
making it difficult to ascertain where Matters touch upon related
topics. How could this be made more clear?
Where there are two or more matters within a
Field on closely related topics it would be preferable for them
to be close together within that Field. Where new matters are
inserted this might be achieved by inserting the new Matter between
existing Matters. The standard drafting method for doing so would
be applied, so if, for example, we wished to insert a new Matter
after Matter 5.2 about the governance of maintained schools it
would be inserted as matter 5.2A between Matter 5.2 and Matter
5.3; governance of maintained schools being closely related to
the surrounding Matters.
13. In the interests of clarity, should links
between different Matters touching on the same or related issues
be made explicit?
The overall shape of the Field will need to
be kept under review. At some point it may be sensible for the
whole Field to be recast in a future Order if there are multiple
cross-overs of competence between existing Matters and Matters
intended to be inserted. But we have not yet reached that point
with Field 5.
We are not quite sure what is being suggested
here, but further words indicating overlap of competence and relevance
between Matters would be entirely explanatory and would not serve
any legal purpose. The general drafting practice in the UK is
to include only words which are intended to have legal effects.
It would also be very difficult to frame accurate explanatory
words in this case because it would involve hypothesising possible
laws that might be made by the Assembly and linking these imagined
multiple possibilities to the Matters. This kind of explanatory
drafting, accompanied by the speculative exercise necessary to
do it accurately, is liable to go wrong. The reason for this is
that the courts might give effect to the explanatory words that
were not intended, especially if the provisions do not include
fully accurate explanatory links.
ADDITIONAL QUESTIONS
14. The Parliamentary Under Secretary of
State said in evidence to the Committee that "By leaving
the term physical or mental impairment unqualified there is a
belief that the courts will look to the World Health Organisation's
definition of disability for assistance in interpreting the term"
(Q 24). On what evidence is this assurance based? The Minister
noted that "this definition has been a feature of case law
under the DDA 1995" (Q 24)—is this sufficient assurance?
It is correct that the definition has been a
feature of case law and that the courts have looked to the WHO's
definition of disability to interpret the term. For example, in
Goodwin v Patent Office [1999] ICR 302 the Employment Appeal Tribunal
said (308G) that "if there is doubt whether the condition
of impairment is fulfilled in a mental illness case, it is advisable
to see whether the illness is mentioned in the WHO's international
classification of Disease and if it is, that will very likely
determine the issue".
Subsequent cases have referred to the WHO classification
for assistance:
Malcolm v Lewisham London Borough v Council
v Disability Rights Commission [2007] EWCA Civ 76 and Romano v
Manchester City Council [2005] 1 WLR 2775. In this latter case,
the Court of Appeal referred to the WHO classification and medical
professionals gave evidence confirming that the nature and degree
of the appellant's impairment was based on the WHO's classification
of mental illness.
15. The Minister mentioned that "you
would refer to existing definitions, including that of the WHO,
but, also, to evolving definitions from other organisations"
(Q 27). Would it not result in greater clarity if the WHO definition
were to be replicated in the Order, given that, as the Minister
acknowledged (Q 35) the Assembly could later seek to amend the
definition?
I consider it unwise to replicate the WHO definition
in the Order because any future Measure would be constrained to
that particular definition. Experience has shown us that the understanding
and definition of disability is continuously evolving. Therefore
flexibility is required here and it would be better to leave it
undefined so that, in the future, it could operate by reference
to WHO or other definitions and developments in the understanding
of disability. I am satisfied that this is the appropriate way
forward for Wales.
A number of representatives in evidence sessions
to the Assembly Committee have supported a broad definition—as
one AM stated there is the danger that "the more specific
conditions or problems we include in any definition, the more
risk we then end up excluding someone by virtue of not having
listed them".
All Wales People First have also voiced their
support for the proposed draft of the Order and said they are
"confident the terms of the proposed Order would allow Wales
to use Assembly Measures to develop a system of opportunity, personal
enhancement and equality in Wales".
If the Order were to adopt the definition, the
scope of the Assembly's legislative competence would be confined
to that definition. This would mean that the Assembly would be
unable to make Measures that suit the changing definitions of
disability that develop over time and consequently benefit those
persons who subsequently fall within the amended WHO definition.
Whilst it is acknowledged that the Assembly could extend its legislative
competence to adopt any new WHO definition, this is dependent
on a relevant Order in Council or suitable Bill being available
in a realistic timescale.
16. If the definition of terms used in the
proposed Order are "constantly evolving" (Q 24) and
allowed to "develop over time" (Q 33), on what basis
can the proposed Order's scope and appropriateness be considered?
Section 95 of the Government of Wales Act 2006
together with Schedule 5 set out the extent of the Assembly's
legislative competence by listing devolved Fields and Matters
within each Field. The scope of this Order is limited by the description
of Field 5 which is entitled "Education and Training"
and Matter 5.17 which relates to persons with special educational
needs or additional learning needs.
Any change to the definition of a term in the
Order will be made by Assembly Measure which will be the subject
of consultation, scrutiny by Committee and detailed consideration
by the National Assembly for Wales.
17. Advice given to the Assembly Committee
has been that "It is a principle of statutory interpretation
that if there are a number of similar specific situations and
only some of them are mentioned then the intention must be to
exclude the ones which are not". Is it your view, therefore,
that this would be the effect of adding specific further references
to the phrase "physical or mental impairment" (for example,
if "sensory" or "communication" impairment
were to be specified)?
As I have outlined in responses above, our aim
is to ensure we are able to adapt to changing defintitions of
disability and physical and mental impairment. I would, therefore,
contend that specifiying catagories of impairment would have the
effect of potentially excluding any groups not specifically mentioned.
Any subsequent Measures that arise from this
Order could, however, if thought fit, isolate certain categories
of impairment for the purposes of conferring educational benefits.
A Measure for example could establish a policy for pupils with
Autistic Spectrum Disorder (ASD) or those with long term medical
needs.
20 November 2007
| 
