15 December 2016
Article by Michael Dauncey, National Assembly for Wales Research Service
On 12 December 2016, the Welsh Government published the Additional Learning Needs and Education Tribunal (Wales) Bill, thereby introducing it into the Assembly’s legislative process. The Minister for Lifelong Learning and Welsh Language, Alun Davies AM issued a written statement alongside the publication of the Bill and then gave an oral statement to Assembly Members in the Senedd the following day (13 December 2016).
The Welsh Government describes the Bill as an ‘ambitious law to create a bold new approach’ and a ‘complete overhaul’ of the way children and young people’s Additional Learning Needs (ALN) in Wales are met. Stakeholders and families have long called for change to a system, which the Welsh Government itself recognises is ‘no longer fit for purpose’.
What does the Bill do?
The Bill proposes to replace the current Special Educational Needs (SEN) framework with a reformed system based on Additional Learning Needs (ALN).
The current definition for SEN will continue under the new system of ALN, which is that a child or young person is deemed to have ALN if they have a significantly greater difficulty in learning than the majority of their age group, or if they have a disability that prevents or hinders them from using the education or training generally on offer.
Over 105,000 (22.5%) pupils in Wales are identified as having SEN/ALN (2015/16 statistics).
However, the Welsh Government proposes to do much more than simply change terminology. It has three overarching objectives for the Bill:
- A single, unified legislative framework to support all children and young people in school or further education who have ALN (rather than two separate systems of SEN up to age 16 and Learning Disabilities and/or Disabilities (LDD) for post-16, both of which are currently covered by separate legislation);
- An integrated, collaborative process of assessment, planning and monitoring which facilitates early, timely, and effective interventions (including duties on health boards and local authorities to collaborate with each other through a statutory Individual Development Plan for each learner with ALN);
- A fair and transparent system for providing information and advice, and for resolving concerns and appeals (including requiring local authorities to make arrangements for avoiding and resolving disagreements, revising a system found by previous reviews to be ‘complex, bewildering and adversarial’; and renaming the Special Educational Needs Tribunal for Wales as the Education Tribunal for Wales).
The Bill’s provisions are based on ten core aims the Welsh Government has in order to meet the three objectives. These aims are detailed in paragraphs 3.5 to 3.16 of the Explanatory Memorandum to the Bill (PDF 2.81MB).
One of the Bill’s main reforms is an end to the current system of statementing. Currently, some learners with ALN (around 88%) have their needs met through school-led support at either of two levels (School Action or School Action Plus), whilst others with more severe and complex needs (12%) have a statement from their local authority, which provides a legal entitlement to a specified package of support. Instead, all learners with ALN will have their needs met under the same type of statutory plan – an Individual Development Plan.
However, there would still be a distinction between some (more severe and complex) cases where local authorities would be responsible for maintaining a learner’s IDP, whilst in the majority of the cases it would be the school or college.
A challenge will be to ensure that the universal approach can still provide the necessary graduated support, appropriately tailored to the level of severity of learners’ needs, and that there is no dilution of support provided to those who currently have statements. The Special Educational Needs Tribunal for Wales (SENTW) has warned of a potential watering down of provision for learners with severe and complex needs by trying to ensure the system is flexible and caters for learners with less severe needs.
What has happened so far?
Reform of the legal framework for SEN has been on the agenda for a long time in Wales through a number of previous reviews, consultations, proposals and pilots. Most recently, the Welsh Government consulted on a draft Bill in 2015 and published a draft Code. Our Research Briefing, Additional Learning Needs (ALN) in Wales (November 2016), contains background information.
The Welsh Government’s summary of the 263 consultation responses it received showed that, despite general support for the principles and direction of the draft Bill, stakeholders had concerns about the legislative proposals in their draft form. The consultation included five closed questions asking participants if they agreed or disagreed that an aspect of the draft Bill would be effective, or if they neither agreed nor disagreed. In all five of the questions, more respondents disagreed than agreed. More analysis of the consultation results can be found in chapter 7 of our Research Briefing (PDF 1.05MB).
The Welsh Government prefaced its summary of the responses to each of these questions by referring to the support for the general principles of the draft Bill. It also stated that the narrative provided by respondents in support of their answers to the closed questions did not convey as high a level of disagreement as the results suggest.
Many of the issues raised in the Welsh Government’s consultation echoed those highlighted during the former Children, Young People and Education Committee’s pre-legislative scrutiny of the draft Bill in late 2015. These included duties on local authorities and health boards to collaborate, provision at early years and post-16, and arrangements for disagreement avoidance and dispute resolution.
What changes have been made to the draft Bill?
The Explanatory Memorandum (PDF 2.81MB) (see paragraphs 4.15-4.19) includes a table listing the changes made to the draft version of the Bill and the Welsh Government’s rationale for each of these. Arguably the most significant is the attempt to strengthen the duty on health bodies to make provision to meet children and young people’s ALN, which was criticised as being too weak in the draft Bill.
The draft Bill (PDF 258KB) imposed a duty on local health boards and NHS Trusts to secure ALN provision for a learner if that provision is stipulated in their Individual Development Plan. However, the provision would only have been included in the Individual Development Plan if a health body ‘agreed’ to this.
This received considerable criticism and stakeholders, and subsequently the CYPE Committee, concluded that this did not sufficiently bind the health sector to offer provision that was necessary. The counter-argument was that health professionals’ clinical judgement should be the deciding factor on what provision is appropriate and necessary for a learner with ALN.
The Welsh Government has changed the wording of the relevant section in the Bill (now section 18) so that:
- Where asked to by a local authority, a health body ‘must consider whether there is a relevant treatment or service that is likely to be of benefit in addressing the child’s or young person’s ALN’.
- If the health body identifies such a relevant treatment or service, it ‘must secure’ it for the child or young person.
The other main changes from the draft Bill include more explicit duties and provisions on the availability of ALN services through the medium of Welsh, more detail on the face of the Bill (rather than subsequently in regulations) on provision for looked after children, and duties on non-maintained early years providers rather than only maintained nursery schools.
What happens next?
The Bill will now be scrutinised by the Children, Young People and Education Committee, which has issued a call for evidence to inform its work. The Bill will also receive oversight from the Constitutional and Legislative Affairs Committee and Finance Committee. The Welsh Government has committed to publishing a draft ALN Code which will contain more detail on how children and young people’s ALN should (in some cases ‘must’) be assessed, identified and provided for. The Code will provide statutory guidance and will inform the Assembly’s scrutiny of the Bill.
The Minister for Lifelong Learning and Welsh Language, Alun Davies AM, has stressed that the Bill is ‘part of a wider programme’ to ‘transform’ the ALN system. The Welsh Government intends to adopt a ‘phased approach’ to implement the new statutory framework alongside its broader ALN Transformation Programme which seeks to ‘support delivery partners to effectively move from the existing system to the new approach’. An ALN Strategic Implementation Group has been tasked with planning for transition.
The Welsh Government will consult in 2017 on options for phasing in the new system and then develop a ‘detailed implementation and transition plan to be published in due course’.
As for the legislation itself, the Children, Young People and Education Committee will complete its (‘Stage1’) scrutiny of the general principles of the Bill by reporting before 12 May 2017. There will then be an initial debate and vote in Plenary before further amending and voting stages.