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• 01 Nov 2024

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  Can't answer yes or no.:

  Potentially, but the existence of a duty to consult will depend on the specific circumstances.

  LAs are under a duty to keep under review the arrangements made by the LA and maintained schools in the area for CYPs with ALN, and to consider the extent to which those arrangements are sufficient: s 63(1) and (2) ALNET. They are specifically required to consider the sufficiency of Welsh-language provision, and the size and capability of the workforce when considering the sufficiency of ALN arrangements: s 62(3). These provisions are structured similarly to s 27(1)-(2) CFA 2014, which has been held to be a “single duty” which “applies from time to time as the occasion requires”, rather than being expressly triggered by a particular event or decision: R (D) v Hackney LBC [2020] EWCA Civ 518 para 41, see also para 7.5 ALN Code 2021.

  When carrying out that duty, LAs must consult with “such persons, and at such times, as they consider appropriate”: s 63(5) ALNET. The ALN Code 2021 notes that this could include children, young people and their families, amongst others: para 7.13 ALN Code 2021. As the s 63 review involves the LA’s strategic planning, the duties to have regard to the UNCRC and UNCRPD will be engaged, and those Conventions ought to inform decisions about whether and how CYP and parents are consulted. 

  More: >01.11 What is meant by the duty to have “due regard” to the UNCRC and UNCRPD under ALNET? 

  If an LA makes budget cuts to ALN provision which are significant, it may be under a duty to consult at common law or under s 63 ALNET (see R (D) v Hackney LBC  para 48). It will also have to comply with the Public Sector Equality Duty (under EqA2010 s 149), which includes a duty to be properly informed before taking a decision (R (Bracking) v SSWP [2013] EWCA Civ 1345 paras 25–26); and may be required to comply with the socio-economic duty (under EqA2010 s 1) if the decision is a “strategic” one. 

  Where the LA makes a proposal about the organisation of schools (for example a proposal to discontinue or make a “regulated alteration” to a community special school), it must consult on its proposals in accordance with the School Organisation Code prior to publishing its proposals (School Standards and Organisation (Wales) Act 2013, s 48(2)).

  Where any of those decisions are “policy decisions” then there may be additional consultation duties upon an LA by virtue of standards 88 to 97 of the Welsh Language Standards: The Welsh Language Standards (No 1) Regulations 2015. The Welsh Language Tribunal has interpreted “policy decisions” as being very broad: The City and County of Swansea v Welsh Language Commissioner (WLT/21/01), paras 55-61. Therefore the standards may apply even where there is no new written policy being implemented. Nodi thinks that making substantial changes to ALN provision may be sufficient to amount to a “policy decision.”

  

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

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