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• 01 Nov 2024

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  No. There is nothing in the law or guidance that says this is the case. Whether the LA should prepare and maintain the IDP needs to be determined by applying the legal principles under ALNET and the accompanying regulations and guidance. 

  Under the old system those attending a special school would usually have a statement of special educational needs. However, sections 11 & 12 ALNET do not preclude a maintained special school preparing and maintaining an IDP.

  While there are many similarities to when the LA will maintain an IDP and when a statement of special educational needs should be issued, the test and guidance under the old system is different. A statement of special educational needs will be issued where “in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27 , it is necessary for the [local authority]1 to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs”: s.324 Education Act 1996. 

  The test set out in the Special Educational Needs: Code of Practice 2004 states that: “In deciding whether to make a statutory assessment, the critical question is whether there is convincing evidence that, despite the school, with the help of external specialists, taking relevant and purposeful action to meet the child's learning difficulties, those difficulties remain or have not been remedied sufficiently and may require the LEA to determine the child's special educational provision.”

  More: For the legal tests under ALNET see Chapter 03, in particular:

  >03.13 Who is responsible for issuing an IDP for a child with ALN? 

  >03.14 When would it not be appropriate for an LA to direct that a maintained school prepare and/or maintain an IDP? 

  >03.15 What if the maintained school,  parent (of a Child) or CYP disagrees with the LA’s decision that the IDP should be prepared / maintained by a maintained school?  

  In addition to the different legal tests.

  The warnings from the Upper Tribunal in England in relation to the use of the phrase “waking day curriculum” in LB Southwark v WE [2021] UKUT 241 (AAC)be born in mind. Whether a CYP had a statement of special educational needs is a good indication that the LA may be required to prepare and maintain an IDP, but this should not be used as a rule to distract from proper consideration of the legal requirements.

  

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

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