Update on the Additional Learning Needs Bill

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This article provides an update on the current position regarding the Additional Learning Needs and Education Tribunal (Wales) Bill. We last blogged on this subject ahead of the Bill’s Stage 1 (general principles) debate in Plenary in June 2017.

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Debate on the General Principles of the ALN Bill

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On Tuesday (6 June 2017), Assembly Members will debate the general principles of the Additional Learning Needs and Education Tribunal (Wales) Bill and vote whether to allow it to proceed to the second stage of the Assembly’s legislative process.

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New Publication: Additional Learning Needs and Education Tribunal (Wales) Bill – Bill Summary

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The Additional Learning Needs and Education Tribunal (Wales) Bill was introduced on 12 December 2016 by the Minister for Lifelong Learning and Welsh Language, Alun Davies.

The Welsh Government is unequivocal about the need for change. It describes the Bill as a ‘complete overhaul’ of a system ‘no longer fit for purpose’.

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The “Article 50” Bill: Latest developments

06 February 2017

Article by Dr Alys Thomas National Assembly for Wales Research Service

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1024px-uk_supreme_court_court_1

Image from Wikimedia by Rwendland. Licensed under Creative Commons.

Since the Supreme Court Ruling developments around Brexit have been rapid.

The UK Government argued that it could invoke Article 50 of the TEU without Parliament passing legislation. It said that the prerogative powers of the Crown to enter into and to withdraw from treaties meant Ministers were entitled to exercise this power in relation to the EU Treaties, and therefore to give Notice of the UK’s intention to leave without the need for any prior legislation.

The claimants, however, argued that withdrawal from the EU Treaties would change domestic law. Owing to the rule that prerogative powers cannot be used to change UK domestic law, they said this meant that the UK Government could not serve a Notice unless first authorised to do so by an Act of Parliament.

The Supreme Court dismissed the Secretary of State’s appeal by a majority of 8 to 3. The Supreme Court considered that the terms of the European Communities Act 1972, which gave effect to the UK’s membership of the EU, were inconsistent with the exercise by UK Ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament.

The UK Government reacted by publishing the European Union (Notification of Withdrawal) Bill 2016-17. The Bill has just two clauses which state:

1 Power to notify withdrawal from the EU

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

2 Short title

This Act may be cited as the European Union (Notification of Withdrawal) Act 2017.

The Bill received its Second Reading on 31 January and 1 February. 498 MPs voted in favour and 114 voted against. It goes to a Committee of the Whole House for three days starting on 6 February. It is due to have its Third Reading and Report Stage on the 8 February. It will then go the House of Lords.

Amendments have been tabled to the Bill. A number of these add new clauses which establish powers through which the UK Parliament can scrutinise the UK Government throughout the negotiations. Other amendments seek to place the role of the Joint Ministerial Committee on a statutory footing during negotiations to leave the EU and/or to require the Prime Minister to secure the agreement of the First Ministers of Wales, Scotland and Northern Ireland before agreeing the terms of withdrawal. A group of amendments would also require Ministers to seek the approval of Parliament of the terms of any proposed withdrawal agreement with the EU.

The clauses that aim to formalise the role of the Joint Ministerial Committee are linked to the Supreme Court Article 50 ruling, which held that the convention according to which the UK Parliament will not legislate in matters that are devolved (known as the “Sewel Convention”) is not a matter for the courts. The Court stated:

In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.

The day after the Second Reading of the Bill the UK Government published a White Paper: The United Kingdom’s exit from and new partnership with the European Union. With regard to devolution, it stated:

The devolved administrations will continue to be engaged through the Joint Ministerial Committee (JMC), chaired in plenary by the Prime Minister and attended by the First Ministers of Scotland and Wales and the First and deputy First Ministers of Northern Ireland, and the JMC sub-committee on EU Negotiations (JMC(EN)), chaired by the Secretary of State for Exiting the European Union, with members from each of the UK devolved administrations.

ALN Bill: A ‘complete overhaul’ of a system ‘no longer fit for purpose’

15 December 2016

Article by Michael Dauncey, National Assembly for Wales Research Service

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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’.

This is a picture of some colouring pencils.

Image from Flickr by Alan Cleaver. Licensed under the Creative Commons.

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 bodymust 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.