‘As many of you will know, half of the battle of getting support for your child’s Additional Needs is getting people to listen to you and by getting good reliable advice.   By people, I mean schools, professionals and your local authority.’  So says solicitor Hayley Mason Senior Solicitor at SEN Legal

What happens is the people who are there to help end up giving parents confused and sometimes incorrect information.  “They’re often working from incorrect information themselves, or working from policies driven by budget cuts rather than applying the law.”

The law in the form of the current legislation and the new ALNET Act 2018 is very clear in this area, but the interpretation of this is not as clear or as widespread as it should be.   The new ALN Draft Code and what children and young people and their parents can expect is far from clear in its current form.  

With a huge change in the law about to be implemented in Wales in September 2020 –getting the ALN Code right is essential.   As the name suggests, this code is about– about delivering for the children and young people with additional learning needs in the real world.  

The Code will when finalised provide a legal framework to ensure that learners’ additional learning needs are identified early and includes  guidance for relevant people such as schools and local authority , further education , NHS Trust etc…..; The Code imposes requirements on a local authority to provide:

· advice and information;

· disagreements resolution;

 · decisions on whether a child or young person has additional learning needs;

·  the preparation, content, form, review and revision of individual development plans (IDPs); and

· ceasing to maintain IDPs.

Where requirements are imposed by the Code, the Act or regulations, the relevant body must comply with the requirement.  Where it says that certain things are not allowed, the school, or local authority or college must not do it.

Schools, Local authorities, FE’s and others must comply with the law and requirements included in the Code and not doing so could result in a decision being overturned by the Tribunal, a successful complaint to the Welsh Ministers, local authority or Welsh Ministers’ intervening, a complaint to the Public Services Ombudsman or to a successful judicial review claim.

So why worry?  

  • Well the Code, is, we are told not for parents.   (Guidance for parents will be issued later….) – But at least the draft should be clear and accessible for all those SENCO’s, teachers and local authority officers out there who have to implement it.
  • The draft code is 316 pages long and from all the feedback we’ve had from schools, LAs and professionals, it’s open to huge interpretation and a really difficult read.
  • The structure and language isn’t always clear and rather than just dipping in to ‘relevant sections’, you really do have to cross reference back and forth to try and find the full picture.
  • The new draft code seems to be far more complicated and less easy to read than the old 2002 version which it replaces.
  • There is less than a month to respond and people all over Wales haven’t read the whole draft yet

In the midst of severe austerity where our schools and local authorities are having budget cuts, (which does shape institutional behaviour) having a code which is not clear can create conflict.

Let’s hope that out Tribunal rates will not soar as they did in England or that Schools and their local Authorities will not be in conflict regarding decisions and reconsiderations vice versa.

So is all lost? 

Certainly not, the ACT is a welcome and vital extension of opportunity for children and young people with ALN.  Those drafting the code are open to changes.   Everyone will have to adapt and learn, money will have to be spent, and a raft of new skills will have to develop.  But Rome never was built in a day

However there is a specific issue of concern which SNAP Cymru feels should be clarified and not left to interpretation:

   The provision of disagreement resolution services

SNAP Cymru feel that disagreement resolution should be provided by individuals and services, who are independent of the local authority.    We feel disagreement resolution support that is delivered by the Local Authority internally, in an attempt to comply with its duties would clearly not comply with section 68(3) of the Act .

If a Local Authority were to dedicate a ‘separate department’ to this service, we feel it would still fail in its duties to provide an independent service as set out in the new legislation.   It is not only vital that this service, is independent in appearance, but also independent in fact to promote the confidence and trust of families – both vital ingredients for any successful disagreement resolution process

The English Code of Practice which accompanies the 2014 legislation makes it quite clear:

  ‘no-one who is directly employed by a local authority can provide disagreement resolution services.

Those responsible for the Code in Wales believe it’s appropriate to deliver this service ‘in house.’   Many teachers and local authority officers have told us that they feel this would be a conflict of interest and have no intention of going down this route.   But some may.  

Parent Partnership Services have already been removed from this Code; the battle to ensure that information and advice was independent, was also lost during the writing of the legislation.

If information and dispute resolution for parents is to be clear, reliable and widespread and not determined and delivered solely by the local authority then people need to tell the WG that disagreement resolution provided by the local authority ‘in house’ is NOT acceptable

So please do respond to the following questions in the consultation:

Question 8 – Involving and supporting children, their parents and young people

Question 11 – Advice and information

 And 42 and 43 – Dispute resolution


What are the next steps in terms of development of the Code?

The ‘code’ is out for consultation now – please respond and tell the Welsh Government how you feel.   You don’t have to answer every question.   Respond to specific points, to small section that you find particularly important.    You can respond on the online form by doing sections at a time and saving the doc before submitting.   Get together with other parents and respond together! If you’re a professional and concerned do respond.

The Code will be will need approval by the National Assembly for Wales, before it can be issued. We anticipate this will be at the end of 2019