[2025] UKUT 191 (AAC)

References in this Decision to statutory provisions are to the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (“the 2018 Act”), unless otherwise appears.

Although some provisions of the Education Act 1996 (“the 1996 Act”) remain in place, since 23 August 2022, the regime governing the identification of, and provision for, children with ALN in Wales is primarily set out in the 2018 Act, and the Additional Learning Needs Code for Wales 2021 (“the ALN Code”) made by the Welsh Ministers under section 4(1). When exercising functions under the 2018 Act, local authorities must have regard to the ALN Code (section 4(3)(a)).

Under the 2018 Act, a person has ALN “if he or she has a learning difficulty or disability (whether the learning difficulty or disability arises from a medical condition or not) which calls for additional learning provision [“ALP”] (section 2(1)); and a child of school age has “a learning difficulty or disability if he or she either (a) has a significantly greater difficulty in learning than the majority of others of the same age, or (b) 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… of a kind generally provided for others of the same age in mainstream maintained schools…” (section 2(2)). In any specific case, the identified ALN therefore informs the required ALP.

A local authority must decide if a child has ALN where it comes to its attention or appears to it that that child may do so (section 13). If it decides that the child does have ALN, then it must prepare and maintain an IDP for that child (section 14(1)(a) and (2)(a)). The IDP must include (i) a description of the child’s ALN, (ii) a description of the ALP which the child’s learning difficulty or disability calls for, and (iii) “anything else required or authorised by or under [Part 2 of the 2028 Act”] (section 10(a), (b) and (c)). “Additional learning provision” means, so far as relevant to this appeal, “… educational… provision that is additional to, or different from, that made generally for others of the same age in… mainstream maintained schools in Wales…” (section 3(1)). Given the respective statutory definitions of ALN and ALP, it is clear that ALP is entirely responsive to identified ALN.

Furthermore, and importantly, by section 14(10)(a):

“Where a local authority maintains an [IDP] for a child or young person, the authority must… secure the [ALP] described in the plan.”

The provisions in relation to preparing and maintaining an IDP are found in Chapter 23 of the ALN Code. There is a mandated standard form for the IDP in Annex A of that Code (Annex B for a looked after child), and how the various sections of that form are to be completed is set out in paragraphs 23.15-23.96 of the Code. Section 2 of the IDP is the focus of this appeal, the relevant parts being Sections 2A to 2C, which are headed as follows:

“Section 2A: Description of the child or young person’s [ALN]”

“Section 2B: Description and delivery of the child or young person’s [ALP]”

“Section 2C: Description and delivery of ALP to be secured by an NHS body.”

Within Section 2B, Section 2B.1 “Intended outcome” sets out the outcome intended by the provision of each element of ALP; and Section 2B.2 “ALP to be provided” requires a description of the ALP to be provided with a view to meeting the intended outcome. As indicated above (paragraph 11), section 14(10)(a) requires a local authority which maintains an IDP to secure the ALP described in the plan. That is reflected in the mandated IDP form which requires the local authority to identify who will provide each element of the ALP. Those might include the local authority directly, an outsourced contractor or (as we shall see) an NHS body under sections 20-21.

Section 2C requires some explanation. Under the 1996 Act (which applied in Wales until the 2018 Act came into effect), the obligation to provide “Special Educational Needs” (“SEN”, different from but essentially the equivalent of ALN) in a “Statement” (the equivalent of an IDP) falls upon the local authority. There are no means by which an NHS body can be required to make any special educational provision towards such needs although, where an Educational and Healthcare Plan specifies health care provision (as opposed to special educational provision), the responsible health care commissioning body has an obligation to make that provision (section 42 of the Children and Families Act 2014).

Since the 2018 Act, there has been a different approach in Wales, increased collaboration between local authorities and local health boards (“LHBs”) being a principle of that Act.

For example, under section 65, a local authority may ask an LHB to provide it with “information or other help, which it requires for the purpose of exercising its functions” under the Act, and the LHB is usually required to respond to such a request.

More specifically, sections 20 and 21 impose obligations on health bodies (including LHBs) to provide ALP in certain circumstances. They provide:

“20 [ALP]: [LHBs] and NHS trusts

(1)

The bodies specified in subsection (2) may refer a matter to an NHS body, asking it to consider whether there is any relevant treatment or service that is likely to be of benefit in addressing the additional learning needs of a child or young person.

(2)

The bodies are—

(a)

where the referral would relate to a child, or to a young person who is a registered pupil at a maintained school, a local authority;

(b)

where the referral would relate to a young person who is not a registered pupil at a maintained school, the body that prepares or maintains an individual development plan for the young person.

(3)

But a body may not make a referral under subsection (1) unless—

(a)

it has informed the child or young person and, in the case of a child, the child's parent, that it intends to make the referral,

(b)

it has given the child or young person and, in the case of a child, the child's parent, an opportunity to discuss whether the referral should be made, and

(c)

it is satisfied that making the referral is in the best interests of the child or young person.

(4)

If a matter is referred to an NHS body under this section, the NHS 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 additional learning needs.

(5)

If the NHS body identifies such a treatment or service, it must—

(a)

secure the treatment or service for the child or young person,

(b)

decide whether the treatment or service should be provided to the child or young person in Welsh, and

(c)

if it decides that the treatment or service should be provided to the child or young person in Welsh, take all reasonable steps to secure that the treatment or service is provided in Welsh.

(6)

In this section, and in section 21, ‘relevant treatment or service’ means any treatment or service that an NHS body would normally provide as part of the comprehensive health service in Wales continued under section 1(1) of the National Health Service (Wales) Act 2006.

21 [IDPs]: [LHBs] and NHS trusts

(1)

If an NHS body identifies a relevant treatment or service that is likely to be of benefit in addressing a child's or young person's [ALN] following a referral under section 20 it must⁠—

(a)

inform the body that made the referral of that treatment or service,

(b)

if the referral was not made by a body that maintains an individual development plan for the child or young person, inform the body that maintains the [IDP] of that treatment or service, and

(c)

if it considers that the treatment or service should be provided to the child or young person in Welsh, inform the persons mentioned in paragraphs (a) and (b) that the treatment or service should be provided in Welsh.

(2)

If an NHS body does not identify a relevant treatment or service that is likely to be of benefit in addressing a child's or young person’s [ALN] following a referral under section 20 it must—

(a)

inform the body that made the referral of that fact, and

(b)

if the referral was not made by a body that maintains an [IDP] for the child or young person, inform the body that maintains the individual development plan of that fact.

(3)

If an NHS body informs a body that maintains an [IDP] for a child or young person that there is a relevant treatment or service likely to be of benefit in addressing a child's or young person’s [ALN], the body that maintains the plan must describe the treatment or service in the plan, specifying that it is [ALP] to be secured by the NHS body.

(4)

If an NHS body informs a body that maintains an [IDP] for a child or young person that a relevant treatment or service should be provided to a child or young person in Welsh, the body that maintains the plan must specify in the plan that the treatment or service is [ALP] that should be provided in Welsh.

(5)

If an [IDP] specifies under this section that [ALP] is to be secured by an NHS body, the following duties do not apply to that [ALP]—

(a)

the duty of a governing body to secure provision under section 12(7) (including the duty to take reasonable steps to secure provision in Welsh);

(b)

the duty of a local authority to secure provision under section 14(10)(a) and the duty to take reasonable steps to secure provision in Welsh under section 14(10)(c);

(c)

the duty of a local authority to secure provision under section 19(7)(a) and the duty to take reasonable steps to secure provision in Welsh under section 19(7)(c).

(6)

The description of the [ALP] specified in a plan under this section as provision an NHS body is to secure may only be removed or changed on review of a plan in accordance with section 23 or 24 and with the agreement or at the request of the NHS body.

(7)

If, on review of a plan, the NHS body requests a governing body or a local authority that maintains an [IDP] for a child or young person to remove or change the description of the [ALP] specified in the plan under this section as provision the NHS body is to secure, the governing body or local authority must comply with the request.

(8)

Nothing in this section affects the power of the [ETW] to make an order under this Part.

(9)

If the [ETW] orders the revision of an individual development plan in relation to [ALP] specified under this section as provision an NHS body is to secure, an NHS body is not required to secure the revised [ALP] unless it agrees to do so.

(10)

Regulations must provide that where an NHS body is under a duty to inform under subsection (1) or (2), it must comply with that duty within a prescribed period, unless a prescribed exception applies.”

The following are worthy of note.

The ALN Code, as you would expect, is consistent with, confirms and reinforces these statutory provisions, effectively providing the same substantive content in narrative form. The following matters in the Code are worthy of note in the context of this case.