The Special Educational Needs System is Changing

The system for supporting children and young people with special educational needs and disability in Wales is changing.

The Welsh Government has introduced new legislation and guidance, called the  Additional Learning Needs and Education Tribunal (Wales) Act 2018, and Additional Learning Needs (ALN) Code for Wales 2021, which will replace the existing legislation and guidance about special educational needs.

The Law is changing for several reasons,  the main one is to make the process simpler and equal for all involved.

The new legislation for ALN will bring about several main changes including:

  • bringing together all existing systems into a new, single system for ALN
  • being more learner-centred
  • providing learners with the same rights and entitlements whatever their age or setting
  • improving transition between settings
  • provide Welsh language provision where needed
  • being a fair and transparent system for all

The Welsh Government believe these changes will mean that children, their parents and young people will:

  • get the support they need earlier
  • be more involved in making decisions about their lives and the support they need
  • be able to find information more easily than before
  • be fully supported if they disagree with decisions
  • be able to appeal decisions to the education tribunal

 

A single system 0-25 years

The new law says that a ‘child’ means an individual under 16 years (compulsory school age) while a ‘young person’ is someone aged between 16 and 25 (over compulsory school age.)

Children and young people who have special educational needs and disabilities will now get support for longer using one system.  Some young people may be able to get support until the age of 25. 

The government wants children, parents and young people to have more say about the support they need.

For young people 16 or over, they will be the main person making decisions.  They may still want to ask their parents to help them make decisions.  They can also ask for information advice and advocacy from someone independent. 

This new system will protect the rights of all children, regardless of the extent of their additional learning needs.

 

What happens now?

Children and young people with special educational needs  are entitled to extra support with learning at nursery, school or college, which is outlined in one of the following:

  • An Individual Education Plan
  • A Statement of SEN
  • A Learning and Skills Plan

The current system for supporting special educational needs in Wales follows a graduated response outlined in the Special Educational Needs Code of Practice for Wales 2002 (COP).

It has three levels; School Action, School Action Plus and Statement of Special Educational Needs.  The support will vary depending on what your child needs, but could include regular structured small group, one to one teaching or activities, or extra support to follow regular, daily routines.  It could also include access to ongoing therapeutic or sensory support or individual adaptations to curriculum and/or learning materials. The support will be ‘additional or different from’ what is provided as universal provision for all learners in mainstream schools.

A young person (not in compulsory school) will have a Learning and Skills Plan (LSP) identifying their post-16 education and training needs and the provision necessary to meet them.

 

What’s changing?

From September 2021, a new Additional Learning Needs (ALN) system will begin to replace the previous Special Educational Needs (SEN) system.

As well as the name change, responsibilities towards children and young people with ALN is changing too.

The current SEN law only applies to children and young people up to the age of 19 (in maintained schools), the new system will apply all children and young people with ALN from 0 to 25.

All children with Additional Leaning Needs will have an Individual Development Plan which will (over the next 3 years) replace the current SEN Statement, Individual Education Plan or Learning and Skills Plan

The current categories of ‘School Action’ and ‘School Action Plus’ will be abolished gradually when the new system comes into place from September 2021 although children and young peoples needs will still be met through a graduated approach.

Learners with Additional Learning Needs will all have an IDP outlining their support needs. 

IDP’s are not just for children and young people with complex needs.  

This new system will protect the rights of all children, regardless of the extent of their additional learning needs.

 

 

Moving over to the new system – When will the changes take place?

The Welsh Government is planning a phased introduction of the new system from September 1st 2021.  This means there will be ‘two systems’ operating alongside each other from September 2021-2024, the new ALN system and the original SEN system. 

  • Children newly identified as having additional learning needs (ALN) will move to the new ALN system from 1st September 2021. 
  • For children who attend a maintained school (including a PRU) and who have already identified SEN via ‘school action’ or ‘school action plus’, the new system will apply from 1 January 2022 ( This will also be gradual some year groups will move before others)
  • Children and Young People with Statements or Learning and Skills Plans will gradually move to the new system over the 3 years
  • Until a child or young person moves to the new system, the existing SEN system and law remains in place for them

For three years,  each Local Authority, EY’s setting, School and FEI will work hard with families and other professionals to ensure everyone understands these changes. 

Not all Year Groups will begin transfer from l January 2022 as the transfer to the new system will be staggered across year groups.   children and young people will be transferred at natural review points.   However in  addition to the mandated transfer dates, children and their parents can ask their school to move them to the new system at any time from 1 January 2022 onwards.

Similarly, children (and their parents) with a SEN statement can ask their local authority to transfer them to the new system from the same date.  In both cases, the request must be complied with and the transfer is effective from the date the request is made.

Families will have access to impartial information, advice and support.  This is statutory, which means it must be provided by law.   SNAP Cymru provides this support across Wales.   Every local authority in Wales MUST have arrangement for providing children, young people and families impartial information, advice and support, disagreement resolution and advocacy.  What is provided is shaped by the new ALN Code 2021 and the ALN Act 2018

The Additional Learning Needs and Education Tribunal (Wales) Act 2018

The Additional learning needs Code 2021)

SNAP Cymru have a range of services to ensure that families have access to impartial advice and support and independent dispute resolution and advocacy.   Navigating the new system can be confusing the leaflets below provides information on the support we provide.  You may also want to  contact our telephone help line which provides  information and advice on any ALN issue. 

Our helpline is open 9.30-4.30 Monday to Friday 0808 801 0608

 

Will the way children are assessed also change?  

From September 2021, local authority Statutory Assessments to decide whether a child needs a Statement, will no longer be used for children and young people newly identified as having ALN;  instead, the school, or local authority will have ‘a duty to decide’ whether a child has ALN or not’. 

Assessments for young people who have statements of special educational needs (SEN) and who are leaving school to go into further education,  are currently assessed under section 140 of the Learning and Skills Act, the assessment is led by Careers Wales on behalf of the Welsh Government.  The WG also decides whether they should fund placements for young people with learning difficulties at a specialist FE establishments.   

The 140 Assessments for these young people will continue for the next two years until 2023/24.  Information on funding and responsibility for these assessments will be be published by the WG in the coming year.

 

What is the new ‘Decision Making Duty’ on Schools and Local Authorities?

From September 1st 2021, when a school  is ‘made aware’ that a child or young person may have additional learning needs [ALN] it  MUST decide whether that child or young person has  additional learning needs unless:

  • an individual development plan (IDP) is already in place for the child or young person
  • a decision has already been made that the child or young person does have ALN and the child or young person’s needs have not changed
  • or, if the young person(16+) does not consent (agree) to the decision being made

Decisions regarding ALN will in most cases be made by the school or FEI.    However in the following circumstances the local authority (LA) will decide:

  • If a child is under the compulsory school age (under 5 years and not in a maintained school) the local authority will decide whether the child has ALN.  Parents and other health and social care professionals that work with the child can bring the child to the attention of the LA and ask them to decide and if required, to prepare an IDP
  • If a child or young person is’ Looked After’ the LA will be responsible for ‘deciding and preparing’ an IDP if required (S.17)
  • If a child is attending a non-maintained school (not financially supported by the LA) and the parents have concerns that their child might have ALN, then the parents will need to contact the local authority for ‘a determination’
  • If a child is educated other than at school (EOTAS) or is dual registered
  • If a child ‘is detained’ (e.g. children or young people who are in a young offender institutions or secure children’s home) the local authority will be responsible
See additional FAQ's below

 

When the changes are made, what will happen to existing statements?

With the introduction  of the new ALN legislation, all Statements of Special Educational Needs (SEN) will gradually be replaced by Individual Development Plans (IDP’s). 

Most Statements will be transferred to become Individual Development Plans over the next 3 years.  The Welsh Government are hoping that all LAs will have completed this process for children with statements living in their area by Sept 2024.

Any existing statements will continue to be legal documents until replaced by an IDP or until the local authority tells you that it intends to end a statement.  

If your child has a Statement,  until the transition process starts for you, you will still be protected under the old law.   All Statements will continue until they are transferred to an IDP unless your child’s need change and they no longer require a statement.   The LA must continue to make the provision in the Statement, and it must still be reviewed at least once a year.  The various rights below will still apply.

  • Maintaining a Statement
  • Annual review
  • Amendments to Statements
  • Re-assessment
  • Naming a school
  • Appeal rights

 

What is an Individual Development Plan (IDP)?

The IDP is a legal document which describes a child or young person’s additional learning needs, the support they need, and the outcomes they would like to achieve. 

It is a “plan” because it not only describes the ALN, but it also plans the action that must be taken for the child or young person.  It also provides a record against which a child or young person’s progress can be monitored and reviewed.

The IDP is intended to be a flexible document.  It will vary in length and complexity depending on the different needs of the child or young person.

The IDP will be reviewed every 12 months and will change according to the child or young person changing needs.

 

Who will be entitled to an IDP?

Any child or young person aged 0–16 who fits the description of ALN

In addition, any young person aged 16–25 who fits the definition of ALN and attends or wishes to attend college.

The Welsh Government anticipates that the same number of children or young persons will have ALN as SEN at present, but that the new term will reduce stigma and mark a clear break from the old system.

What are Additional Learning Needs?

Additional learning needs (ALN) can affect a child or young person’s ability to learn.  For example, someone’s ALN  might affect their:

  • reading and writing
  • ability to understand things
  • ability to socialise or communicate
  • concentration levels or behaviour 
  • physical ability

The new law says that:

A person has additional learning needs if he or she has a learning difficulty or disability (whether the learning difficulty or disability arises from a medical condition or otherwise) which calls for additional learning provision.

The ALN code says there are two questions to ask when deciding whether a child or young person has ALN and these should be considered together.

  1. Do they have a learning difficulty or disability?

A child or young person has a learning difficulty or disability if:

  • they have significantly greater difficulty in learning than the majority of others of the same age, or
  • they have a has a disability for the purposes of the Equality Act 2010 which prevents or hinders him or her from making use of facilities for education or training of a kind generally provided for others of the same age in mainstream maintained schools or mainstream institutions in the further education sector.
  • A child under compulsory school age has a learning difficulty or disability if he or she is, or would be if no additional learning provision were made. (S2 (2)(a)of the Act) (Chapter 2 ALN Code)   
  • For a child under three, ALP means educational provision of any kind.
  1. Does that learning difficulty or disability call for additional learning provision (ALP) to be made?  (S3(1)Act) (Chapter 2 ALN Code)

What is Additional learning Provision?

Additional Learning Provision (ALP)  for over three’s means educational or training provision that is additional to, or different from, that made generally for others of the same age . 

This is a wide definition, and could cover a wide range of things, for example:

  • needing regular one-to-one support
  • physical, communication or sensory support
  • communicating through sign language
  • needing regular small class sizes with specialist support
  • requiring support from a specialist teacher

ALP is described as provision which is ‘additional to, or different from’, that made generally for others of the same age in mainstream maintained schools.

Importantly , this is a national comparison of ALP extended to all Wales and not just the particular school or area.  This benchmark has been included so individual schools and LA’s cannot rely on local policy when deciding whether a child has ALN or not.   If a child has ALN they should have an IDP irrespective of which school , county or region of Wales they live.  An IDP should be transferable and offer a child or young person the protection and rights across all areas of Wales. 

If the answer to both of the above questions is yes, then the child or young person has ALN.   

All children and young people with ALN are entitled to extra support with learning at nursery, school or college and are entitled to an Individual Development Plan (IDP)

The school or College MUST designate a person to be responsible for coordinating the actions required to make that decision and, if an IDP is required, to be responsible for preparing it.  This could be the ALNCo.

The date which the child or young person’s possible ALN is brought to the attention of the school should be recorded along with a summary of the reasons.

The school or FEI must notify you and your child that it is deciding whether he or she has ALN.   they should include contact details for the school and information about how to access the local authority’s arrangements for providing people with information and advice about ALN and the ALN system.   They must also consider offering an initial meeting with parents to discuss the process (Chapter 22 of the ALN Code for more details about meetings).

What is an IDP?

Children and Young people 0-25 with additional learning needs (ALN) will have an Individual Development Plan (IDP) 

The IDP is a legal document which describes a child or young person’s additional learning needs, the support they need, and the outcomes they would like to achieve. 

It is a “plan” because it not only describes the ALN, but it also plans the action that must be taken for the child or young person.  It also provides a record against which a child or young person’s progress can be monitored and reviewed.

Over the next there years , individual development plans (IDPs) will replace all the existing plans including:

  • Statements of Special Educational Needs (SEN)
  • Individual Education Plans (IEPs) for learners currently supported through Early Years Action/School Action or Early Years Action Plus/School Action Plus.
  • Learning and Skills Plans (for learners over 16)

The IDP is intended to be a flexible document.  It will vary in length and complexity depending on the different needs of the child or young person.

The IDP will be reviewed every 12 months and will change according to the child or young person changing needs

What’s included in an IDP?

The individual development plan will be portable between LA’s and be easy to understand and transparent.   Schools, colleges and local authorities MUST use the standard form at Annex A of the ALN Code when preparing or maintaining an IDP for a child or young person. 

Whilst there are standard sections in the plan , IDP’s may look superficially different in different local authorities or schools. ( i.e. school or local authority branding) 

 The IDP will include:

  • biographical information and contact details
  • a clear and comprehensive description of the child or young person’s
  • a description of the ALP – specified and quantified. i.e. how much and how often and who’s responsible for providing – what the child or young person needs to be able to learn
  • what will be done so they are properly supported in school or college
  • whether a child or young person needs ALP in Welsh
  • any ALP to be provided by health
  • clear tangible outcomes
  • the name of the setting /school or college (placement)
  • transition and travel details
  • the child’s, child’s parents or young person’s views wishes and feelings
  • a record of discussions, advice and evidence
  • who is responsible for maintaining the IDP

There are 10 specific sections of the IDP which can be appealed to the Education Tribunal.  These will be marked in red in the ‘ Code’ in order to make it clear to the child, their parent or the young person, which sections have appeal ‘rights’ attached to them:

(a)       2 ;

(b)    2B.2;

(c)     2B.3

(d)     2B.5

(e)     2B.6

(f)      2C.2

(g)     2C.3

(h)     2C.5

(i)       2C.6

(j)       2D

 

Who can request an IDP?

A request for an IDP can be made by a parent, professional, or the learner themselves:

  • For children aged 0 – 3, the request is made to the local authority.
  • For school – aged children, the request is first made to the school. (This request can be passed on to the local authority for reconsideration)
  • For college students, the request is made to the college – unless a specialist college placement is sought, in which case a request will be made in the future to  the local authority- IDPs in colleges will not be legal documents until 2023 and 2024.  Young people should continue to have a S.140 Education and Skills assessment until 2023.
  • The local authority will also make decisions regarding the ALN of Children who are looked after (LAC) or dual registered or detained
  • IMPORTANTLY  – The only requests that can be made for an IDP from September 1st 2021 – January the 1st 2022 are for those children with newly identified additional learning needs.  

All other children remain under the old SEN system and should continue as usual.

If things are ok for your child – there is no need to do anything.  If you have concerns about your child’s progress work with your school to discuss your concerns. 

You can also contact our SNAP Cymru Helpline for advice 0808 801 0608.

Who will be responsible for the IDP?

For most children, the school will be responsible for co-ordinating an IDP.  However, for those with more complex or low incidence needs, the local authority should be responsible.   

Local authorities will also be responsible for co-ordinating IDPs for the following:

  • children under 5 not in maintained schools
  • children and young people attending a specialist school or college
  • those who are who are dual registered or EOTAS
  • ‘looked after children’ (LAC)
  • ‘Detained’ (e.g. Children who are in young offender institutions or secure children’s homes)

Mainstream colleges will be responsible for IDPs for their students.

 

Can School ALN decisions be reconsidered?

YES

The law provides several rights for children, their parents and young people’s to have certain decisions reconsidered. 

In the following circumstances children, their parents and young people can request that the local authority where they live reconsider the following decisions and plans:

  • a school decision whether a child has ALN or Not
  • to reconsider a school IDP with a view to revising it.
  • to reconsiders a school’s decision to cease to maintain an IDP

A parent can also request that the local authority:

  • should take over responsibility for maintaining an IDP

These mechanisms in the law provide children and their parents, and young people, with an effective means of challenging the decision of the governing body of any  maintained schools in Wales.

This system also avoids the schools having to manage Tribunal proceedings themselves and allows for disputes that can’t be managed early to be resolved at a more appropriate level.  

What are the time scales in the new ALN system?

The new ALN law sets out various timescales requirements.  It says that things must be done ‘promptly’ or ‘within’ or ‘before the end of a particular time period’

Many of the timescales are legal duties and imposed by the ALN Code 2021 and some can be found in the Additional Learning Needs (Wales) Regulations 2021. 

School and College timeline for decisions

The school MUST make the decision on ALN, prepare the IDP and give a copy to child, the parent or young person

  • ‘promptly’ or within 35 school days

 The Local Authority decision timeline

When a child or young person is ‘brought to the attention’ of the local authority, they MUST make a decision or prepare an IDP and give a copy of it to the child parent or young person before the end of

  • a 12 week period

If the local authority decides that the child does not have ALN, it must notify the parent of the decision and the reasons for that decision.

When a local authority is reconsidering a school’s decision (section 26 of the Act) they must complete this

  • within 7 weeks

I’ve been notified my child has ‘Has ALN’ and will have an IDP, what can I expect?

If the governing body decides that the child or young person does have additional learning needs; or where it has been directed to by the LA or the Education Tribunal,  it must prepare and maintain an individual development plan (IDP).  In addition, it must secure and provide the Additional Learning Provision (ALP) described in the IDP.

The School or FEI has 35 days to decide and prepare the plan.

Once the school  has notified you that your child has ALN you should be invited to a meeting to prepare the plan.  IDP’s should always be developed in collaboration and  meetings should involve you and your child or young person.  This will enable those attending the meeting to contribute their views towards the content of the IDP 

Before the IDP is completed, the school should give you and your child an opportunity to comment on a draft and should encourage you to raise any concerns as soon as possible. The school should consider any concerns you may have and act upon them appropriately, which may be to update the draft IDP, or explain decisions or other matters further.

Once prepared, the school  MUST give a copy of the IDP to you and your child.  When you receive your child’s IDP , the school MUST also give you and your child or the young person the following information:

  1. Contact details for the school
  2. Information about how to access impartial information and advice about ALN and the ALN system
  3. Details of the LA’s  arrangements for independent dispute resolution and advocacy services
  4. Information about your right to request that the local authority reconsiders the plan and takes over responsibility for maintaining it  (Section 12.23. of the ALM Code)

Where a particular kind of ALP is to be made in Welsh, the governing body MUST take ‘all reasonable steps’ to secure this.

The plan must be prepared and maintained unless a young person does not consent.

If the governing body considers that the child or young person has ALN that may call for ALP that it: 

‘wouldn’t be reasonable for the Governing body to secure, or the extent of and nature of the ALN and ALP can’t  be adequately determined by the Governing body, it may refer the case to the local authority rather than prepare an IDP’

For example,

A child may have a rare condition which requires specialism that the school can’t provide or to meet the child or young person’s needs they require regular advice and support from external agencies which is over and above that which can reasonably be arranged and accessed by the school. 

The child requires equipment which can only be used by one pupil or can’t be reused or is beyond the resources of the school.

The child requires very intensive daily support which can’t be funded or secured by the school budget.

In this case the governing body ask the Local Authority to decide.  The governing body can refer this to the LA under section 12 (1)(2)(a)of the Act).

The LA will have 12 weeks to consider and respond

What happens if a school decides that my child doesn’t have ALN?

If a school decides that your child or a young person ‘does not’ have ALN,  they MUST notify you and your child or the young person of that decision and the reasons for it.

The school or college MUST send a notification letter saying the child does not have ALN and does not require an IDP.  The notification letter (or email) MUST set out the decision and the reasons for it and include the following detail:

  • Contact details for the school
  • How to access impartial information advice and support
  • Details of the disagreement resolution service and independent advocacy available
  • Details on how to request that the LA reconsider the school /college decision
  • Contact details for the local authority

If you are unhappy with the school decision, you should request a meeting with the school to discuss your concerns as soon as possible.

You should  ask them to describe how they intend to meet your child’s learning difficulties needs that ‘are not ALN.’ 

(This is particularly important if your child has received special educational needs support in the past and you feel the child’s needs have not changed)  

The school should describe how they intend to support your child through ‘universal provision’ i.e. the provision offered to all children and young people. 

If you are still unhappy with the school decision  the new law gives you the opportunity to ask the local authority to reconsider it the schools decision. 

The ALNET Act (section 26) and the Code (Section 26.4)  provides children, their parents and young people with a means of challenging the school’s decision on ALN. (or a failure to make a decision.)

You should write or email the local authority directly emailing the most senior person in the Inclusion or ALN department.  The local authority will have 7 weeks to reconsider the schools decision. 

Asking the Local Authority is the only formal way to challenge a school decision and is the first step to an appeal to a tribunal if you remain dissatisfied.

If the local authority disagree with the school decision and decides your child has ALN it can direct the school to prepare an IDP for your child.  SNAP Cymru provides impartial information and advice and dispute resolution services in all areas of Wales.  Please contact us to discuss any concerns if you disagree with a school decision.

Most disagreements regarding ALN  can normally be resolved directly with the school or by using disagreement resolution services.

What if I’m not satisfied with the Local Authority’s decision?

Dispute Resolution

Where it has not been possible to prevent disagreements arising,  ALN disagreements should be resolved as quickly as possible.   All local authorities MUST make arrangements for resolving disagreements between a maintained school, FEI, local authority and a child, child’s parent or young person.   

SNAP Cymru provides dispute resolution services across Wales which can help 

  • support the needs of the child and young person
  •  help to achieve early and informal resolution of disagreements through discussion and agreement
  • discuss the full range of options
  • be accessed easily 

For more information on SNAP Cymru dispute resolution please see 

SNAP Cymru Dispute Resolution 

 

Appealing to the Education Tribunal Wales

If you still unhappy with a local authority decision, you have a right to appeal to the Education Tribunal for Wales.

The Tribunal is independent and will consider appeals when parents disagree with the local authorities decisions about their child. 

You have 8 weeks  from the date you received the letter informing you of the local authorities decision to make an appeal.  The whole SEN appeals process, from registration to hearing and the issuing of a decision, usually takes between 3 and 4 months. 

If a child, child’s parent or young person decides to use disagreement resolution arrangements (Chapter 32), the 8 week period is extended by a further 8 weeks.

An appeal can be made by a parent or young person on the following :

  • a decision whether a child/young person has an ALN;
  • a decision by a local authority, in the case of a young person, as to whether it is necessary to prepare and maintain an IDP;
  • the description of the person’s ALN;
  • the additional learning provision in an IDP
  • the school named in the plan or if no school is named;
  • a decision not to revise an IDP;
  • a decision not to take over responsibility for an IDP, following a request to do so;
  • a decision to cease to maintain an IDP;
  • a refusal to decide a matter.

Other means of challenge

In addition to appeals to the Education Tribunal for Wales, there are several other means by which learners and their families can challenge a public
body.   These may include:

  • Using a school, FEI, or local authority complaint procedure.
  • The Public Services Ombudsman for Wales can consider procedural
    complaints about a public service provider in Wales, including local
    authorities and NHS bodies.  You would usually need to use internal complaint procedures first.
  • The Children’s Commissioner for Wales has a free investigation and advice service that can provide assistance on complaints  
  • The Welsh Language Commissioner can consider complaints about
    organisations in Wales who fail to adhere to the appropriate Welsh language standards
  • In some circumstances, parents and young people can apply for a Judicial Review of  a decision or action by a public body including the processes they used to reach a decision.  The Court can, for example, consider the way in which decisions of local authorities have been made, however there are strict time limits for bringing judicial reviews.  

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