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• 01 Nov 2024

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  Yes. For a CYP aged 3 or over the following questions needs to be asked:

  1. is it educational or does it train? s.3(1) ALNET; and
  2. is it additional to, or different from, that made generally for others of the same age in mainstream nurseries, schools or further education institutions in Wales? s.3(1) ALNET 

   

  If both answers are ‘yes’, then it is additional learning provision (ALP). 

  ALP for a child aged under three means educational provision of any kind: s.3(2) ALNET. 

  The ETW does not have to follow English case law, but Nodi believes that a lot of English case law on what is SEP is likely to be considered by the ETW as useful guidance on what is ALP. Guidance from English cases that are likely to be followed by the ETW includes:

  • there is no hard boundary between ‘educational’ and ‘non-educational’ – some things could be both: A v Hertfordshire CC [2006] EWHC 3428. However, just because some particular provision brings some educational benefit does mean there is a need to make this ALP. 
  • the question of whether any particular provision is educational or non-educational (or a mixture of both) is a question of fact and not a question of law: LB Bromley v SENT [1999] ELR 260
  • educational need has a broad meaning, for example a child’s education can require day-long and year-round attention to many physical needs: LB Bromley v SENT [1999] ELR 260
  • education is “about instruction, schooling or training, so one or more of these factors is likely to be discernible in provision which is asserted to be educational”: DC & DC v Hertfordshire CC [2016] UKUT 379 (AAC).

  Even though similar legal principles are likely to be applied, the results in practice may be different. This is because what is SEP in England depends on what is ordinarily available in mainstream settings in England and what is ALP depends on what is ordinarily available in mainstream settings in Wales. Wales has a completely different curriculum to England established under the Curriculum and Assessment (Wales) Act 2021 and what is ordinarily available in mainstream setting in Wales may also be different. This could mean that something that would be considered SEP in England may not be considered ALP in Wales and vice versa.

  

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

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