The Welsh Government in all their wisdom have decided to adopt the Additional Learning Needs and Educational Tribunal (Wales) Act 2018 with effect from September 2021.
But what does this mean? In essence, it means that the current Special Educational Needs legislation will be abandoned for a whole load of new legislation similar to what is currently in place in England. The question that is currently under debate is will this change be a catastrophe for children and young people in Wales with SEN?
DISCLAIMER: I am not a legal expert, this is how I have interpreted the law. (Even the legal experts I have spoken to have been struggling to work out what all the new legislation actually means!)
Why have they decided to make this change?
In the Explanatory Memorandum to the new Act (fancy title for something that explains why a bill is in place), the reasons for why the legislation needs to be updated are listed. In simple terms they are:
- The current system is no longer fit for purpose.
- The current system is just too complicated and not user friendly.
- “Families feels they have to battle at each stage of the process to get the right support and they do not know where to turn to for advice and information”.
On the surface it seems as though the new legislation is well intended, but how will it work in actuality?
The Key Changes
Complete change in terminology. Special Education Needs, which comes under the special education act 1996, now will become Additional Learning Needs. Some parts of Wales have SENCOs (Special Educational Needs Coordinators) and already use and know ALN, but the new Act puts it onto a statutory footing.
Provision is national rather than specific to the local authority. Currently in Wales, you can only use the services in the local authority. Quite simply the new act allows you to use services (for example a specialised school) nation-wide.
Introduction of the new IDPs. Currently in Wales we use ‘statements of SEN’ which essential set out the difficulties and needs of children or young people with SEN. The new Act will change this, so we use Individual Development Plans instead.
A New Code of Practise. Wales has a separate Code of Practise to England. There is going to be a new one that replaces the current one. An ALN draft Code of Practise is currently in circulation. Local Authorities must have regard to it when exercising functions under the new Act.
Tribunal name change: The Education Tribunal for Wales. Not Special Educational Needs Tribunal Wales anymore.
One of the most positive outcomes of the new legislation is that the new IDPs cover anyone with additional learning needs up until the age of 25 years of age. They are in affect what statements of SEN are going to become. There was be a few differences but in theory everyone in Wales with SEN will end up with an IDP.
Another positive outcome is that provision will be national rather than specific to the local authority. In essence, this means that you could arguably use any of the services in Wales. This could be ideal as there are differences in financial provision in different areas. In theory, you could look in wealthier areas for services such as a specialist school.
One of the main problems with the new legislation is the compatibility between current and new IDPs. Some people in Wales may already have an IDP. However, the new IDPs are different from these. So, if you have an old IDP it seems that you cannot transfer over to a new one, instead you have to start the whole process over again… If you have a statement of SEN however, this can in theory be easily transferred into the new IDP format.
Another issue with compatibility is that if you move from Wales to England, you will also have to start the process over again. Although in England they also use IDPs, they are not compatible with the new Welsh ones…
One aspect of the new law that has been scrutinised by professionals is the changes to mental capacity law. The new legislation suggests that children can now appeal directly to the tribunal themselves, which could be completely inappropriate depending on the circumstances.
It is not yet known how this will work in practise and whether or not it will add another step into the already extremely long appeal process. The changes to the process can only be theorised until secondary legislation is released.
Will it be a CATASTROPHE?!
It is difficult to say whether or not this change will be for the better or if we dare say it… for the worse… We are still awaiting secondary legislation which hopefully will clear up some of the concerns but until then all we can do is hope for clarity and positive change.
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