Q:
01.04 Why does the Nodi Guide refer to the Education Act 1996 and Children and Families Act 2014 and cases decided under those Acts, when Wales has moved from an SEN system to an ALN system?
Nodi No-nonsense Guide Wales
Authors: Civitas Law education team
01 Nov 2024
A: SenseCheck
- 0 Yes
- 0 No
- 1 Other
- 01 Nov 2024
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Complex
Can't answer yes or no.:
Historically, ALN (or SEN) issues in England and Wales were governed under the same legislation: the Education Act 1996. In England, the SEN system was significantly reformed with the introduction of the Children and Families Act 2014, while the Education Act 1996 continued to apply in Wales until ALNET started coming into force in 2021.
This Guide includes cases decided under those other acts where Nodi considers they are relevant to the new ALN system. Whilst ALNET has brought in significant reforms, there are still commonalities with the old system and the new English system. There is very little case law so far on the new Welsh system, and so cases based on the Education Act 1996 and the Children and Families Act 2014 can sometimes provide an indication on how a court or tribunal is likely to decide a similar issue under the ALNET.
The Upper Tribunal discussed the similarities between the new English system and the old system under the Education Act 1996 in Devon CC v OH [2016] UKUT 292 (AAC) deciding that the common features showed a legislative intention that was in general terms for a continuity of approach except where the 2014 Act provides a specific reason to conclude otherwise: para 33.
In Nodi’s view, the ETW will likely agree that some approaches under the old system and English system continue to be relevant, particularly where the wording is substantially similar. Also, the ETW may find judgments under the other Acts provide useful guidance on how it should make decisions on the appeals that come before it (in legal circles such cases are sometimes called ‘persuasive authority’). However, the ETW is not legally required to apply the law in these cases (in legal circles such cases are sometimes referred to as ‘not binding’). Against this, it is important to remember that differences of approach (such as funding) or wording under the ALNET will make comparisons with cases decided under the other Acts inappropriate.
Nodi glossary: Education Act 1996; Children and Families Act 2014; case law; persuasive authority
Nodi No-nonsense Guide Wales
Authors: Civitas Law education team
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