Sort

• 01 Nov 2024

• Other

  Complex

  Can't answer yes or no.:

  Only where the Code uses “must” or “must not”. The ALN Code 2021 uses the terms ‘must’, ‘may’ and ‘should’. ‘Must/must not’ are mandatory requirements which are binding on schools and local authorities: para 1.10 - 1.11 ALN Code 2021. These requirements in the Code either reflect legal requirements imposed by legislation, or they are requirements imposed by the Code itself (as to which see ALNET, s 4(5)–(9A), s 7(4) and s 8(4)). 

  Where the ALN Code 2021 uses ‘should/should not’, this reflects statutory guidance which is not binding on schools and local authorities. Rather, the provision should be considered and followed, unless it can be demonstrated that there is a good reason for not doing so: para 1.13 ALN Code 2021.

  School governing bodies and local authorities are required to “have regard to the guidance contained in the Code”: section 4(3), ALNET. Section 4(3) contains a list of those required to have regard to the Code which includes NHS bodies such as Local Health Boards, further education colleges and youth offending teams.

  The Education Tribunal for Wales (ETW) is also required to have regard to any provision of the Code which appears relevant to a question arising on an appeal (section 4(10) ALNET).

  “Having regard” to the ALN Code means that they must consider the guidance in the ALN Code and follow it unless they can show that there is a good reason not to do so: para 1.13, ALN Code 2021; Munjaz v Mersey NHS Trust [2005] UKHL 58 para 46. An explanation needs to be given for departure from the provisions of the ALN Code 2021: para 1.13 ALN Code 2021. Good practice would be to make sure that those reasons are recorded with reference to supporting evidence to justify departure from the Code.

  However, a school or local authority (or the ETW) must always be prepared to depart from the guidance contained in the Code (ie the provisions which say “should/should not”) where that is appropriate in the particular case rather than treating it as “strict rules” to be “slavishly followed”: S v Brent [2002] EWCA Civ 693, para 15. 

  

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

0 This is helpful

|

Comment

Post