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• 01 Nov 2024

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  There is a significant disagreement as to whether s 9 EA 1996 will operate as it has previously done. 

  Under the old Welsh system and in England at least a type of placement had to be named in the statutory plan and there were mechanisms written in to enable parents to express a preference as to the school to be attended: para 3 schedule 27 EA 1996. There were presumptions in favour of naming the maintained school of parental preference unless this was unsuitable for the child or their attendance would be incompatible with the efficient education of others or efficient use of resources: para 8 Schedule 27 EA 1996. Where the presumption did not apply, specific consideration then needed to be given to s.9 EA 1996. The rights of appeal to the tribunal included a right to appeal in respect of the SEN “in the statement (including the name of the school so specified)” or that fact no school was specified: s.326 (1A) EA 1996. 

  Under the new system the ALN Code 2021 provides that section 2D (in which a placement would be named) should only be used in specific circumstances: para 23.48 ALN Code 2021. The specific circumstances in the code are those under ss 48 and 14(6)/19(4) ALNET:

  • Section 48 gives the LA (and correspondingly the ETW) a discretion to name a maintained school for a child for the purpose of securing admission but can only do so where it is satisfied that the child's interest requires the additional learning provision identified in his or her plan to be made at the school; and it is appropriate for training to be provided at the school. 
  • Section 14 places a duty on the LA (and correspondingly the ETW) to name a place at a particular school or institution for a CYP where the reasonable needs of the CYP cannot be met unless the LA secures provision at a particular school or institution.

  Appeal rights in s.70 (2)(e)-(g) ALNET are specifically in respect of the school/institution named in an IDP and are limited to decisions under ss.48 (4) and 14(6) & (7) ALNET (or 19 (4) & (5) for looked after children).  

  For these reasons it is being argued that instead of requiring separate consideration, section 9 EA 1996 now falls to be considered in the context of the tests of ss.48 and 14(6)/19(4) ALNET. If this approach is correct Nodi considers that:

  • Once the threshold tests under ss.48 and 14(6)/19(4) ALNET are met, the general principle that the parents’ choice of school should be named (unless the exceptions in s.9 are made out) will apply. 
  • Section 9 may be relevant to whether the threshold test in s.48 ALNET is satisfied: parental preference may be a material factor to consider when deciding whether it is in the child’s interest to name a placement under s.48.
  • Section 9 will operate differently in respect of naming a placement that is not a maintained school in that it will first have to be shown that the reasonable needs of the CYP would not be met unless a similar type of school is named (further tests under ss.51 and 55 ALNET would also need to be satisfied). 

  The other view is that the guidance in the ALN Code 2021 (referring to only naming a placement in specific circumstances) is intended to reflect that all CYP’s with ALN are now entitled to a statutory document (IDP). A large number of individuals under the old system were unable to effectively enforce their choice of placement in practice  as their SEN needed to be at a particular level to qualify for a statutory document (SSEN) and thus attract rights of appeal. It is argued that the ALN Code simply maintains this distinction, even though all CYP with ALN are now entitled to an IDP. 

  However, the LA has a general discretion under s 10(b) ALNET to describe ALN in the IDP that the person’s learning difficulty or disability calls for. Section 70(2)(d) ALNET also provides a general right to appeal against the provision in the IDP. While placement at a school or other institution is no longer mentioned specifically in s.70(2)(d) ALNET (as it was in s.326 (1A) EA 1996) placement at a school or institution is referred to as provision in ALNET and the ALN Code 2021 (see for example s.14(6) ALNET). It is therefore argued that there is a general power to consider naming a place at a school or institution under this discretion which would enable s.9 EA 1996 to still be considered in its own right as a separate test as it was under the old system and still is in England. 

  It will be necessary to wait until this issue is resolved by the Upper Tribunal, before it is possible for Nodi to provide a conclusive answer to these issues.

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

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