The Education (Special Educational Needs) Regulations 1994

Statutory Instruments

1994 No. 1047

EDUCATION, ENGLAND AND WALES

The Education (Special Educational Needs) Regulations 1994

Made

7th April 1994

Laid before Parliament

13th April 1994

Coming into force

1st September 1994

In exercise of the powers conferred on the Secretary of State by sections 166(4), 168(2), 172(6), 301(6) of, and paragraphs 2 and 3 of Schedule 9 and paragraphs 5, 7, and 8 of Schedule 10 to the Education Act 1993(1), and by section 19 and paragraphs 1 and 3 of Schedule 1 to the Education Act 1981(2)the Secretary of State for Education, as respects England, and the Secretary of State for Wales, as respects Wales, hereby make the following Regulations:

PART I GENERAL

Title and commencement

1.  These Regulations may be cited as the Education (Special Educational Needs) Regulations 1994 and shall comeinto force on 1st September 1994.

Interpretation

2.—(1) In these Regulations—

“the Act” means the Education Act 1993;

“authority” means a local education authority;

“district health authority” has the same meaning as in the National Health Service Act 1977(3);

“head teacher” includes any person to whom the duties or functions of a head teacher under these Regulations havebeen delegated by the head teacher in accordance with regulation 3;

“social services authority” means a local authority for the purposes of the Local Authority Social Services Act 1970(4)acting in the discharge of such functions as are referred to in section 2(1) of that Act;

“target” means the knowledge, skills and understanding which a child is expected to have by the end of a particularperiod;

“transition plan” means a document prepared pursuant to regulation 16(9) or 17(9) which sets out the arrangements which an authority consider appropriate for a young person during the period when he is aged 14 to 19 years, including arrangements for special educational provision and for any other necessary provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood;

“working day” means a day other than a Saturday, Sunday, Christmas Day, Good Friday or Bank Holiday within the meaning of the Banking and Financial Dealings Act 1971(5);

“the 1981 Act” means the Education Act 1981(6);

“the 1983 Regulations” means the Education (Special Educational Needs) Regulations 1983(7).

(2) In these Regulations any reference to the district health authority or the social services authority is, in relationto a particular child, a reference to the district health authority or social services authority in whose area that child lives.

(3) Where a thing is required to be done under these Regulations—

(a) within a period after an action is taken, the day on which that action was taken shall not be counted in the calculationof that period; and

(b) within a period and the last day of that period is not a working day, the period shall be extended to include thefollowing working day.

(4) References in these Regulations to a section are references to a section of the Act.

(5) References in these Regulations to a regulation are references to a regulation in these Regulations andreferences to a Schedule are references to the Schedule to these Regulations.

Delegation of functions

3.  Where a head teacher has any functions or duties under these Regulations he may delegate those functions orduties—

(a) generally to a member of the staff of the school who is a qualified teacher, or

(b) in a particular case to a member of the staff of the school who teaches the child in question.

Service of documents

4.—(1) Where any provision in Part III of the Act or in these Regulations authorises or requires any document to be served or sent to a person or any written notice to be given to a person the document may be served or sent or thenotice may be given by properly addressing, pre-paying and posting a letter containing the document or notice.

(2) For the purposes of this regulation, the proper address of a person is—

(a) in the case of the child’s parent, his last known address;

(b) in the case of a head teacher or other member of the staff of a school, the school’s address;

(c) in the case of any other person, the last known address of the place where he carries on his business, profession orother employment.

(3) Where first class post is used, the document or notice shall be treated as served, sent or given on the secondworking day after the date of posting, unless the contrary is shown.

(4) Where second class post is used, the document or notice shall be treated as served, sent or given on the fourthworking day after the date of posting, unless the contrary is shown.

(5) The date of posting shall be presumed, unless the contrary is shown, to be the date shown in the post-markon the envelope in which the document is contained.

PART II ASSESSMENTS

Notices relating to assessment

5.—(1) Where under section 167(1) or 174(2) an authority give notice to a child’s parent that they propose to make an assessment, or under section 167(4) give notic to a child’s parent of their decision to make an assessment, they shallsend copies of the relevant notice to—

(a) the social services authority,

(b) the district health authority, and

(c) if the child is registered at a school, the head teacher of that school.

(2) Where a copy of a notice is sent under paragraph (1) an endorsement on the copy or a notice accompanyingthat copy shall inform the recipient what help the authority are likely to request.

(3) Where under section 172(2) or 173(1) a child’s parent asks the authority to arrange for an assessment to be made the authority shall give notice in writing to the persons referred to in paragraph (1)(a) to (c) of the fact that the requesthas been made and inform them what help they are likely to request.

Advice to be sought

6.—(1) For the purpose of making an assessment under section 167 an authority shall seek—

(a) advice from the child’s parent;

(b) educational advice as provided for in regulation 7;

(c) medical advice from the district health authority as provided for in regulation 8;

(d) psychological advice as provided for in regulation 9;

(e) advice from the social services authority; and

(f) any other advice which the authority consider appropriate for the purpose of arriving at a satisfactory assessment.

(2) The advice referred to in paragraph (1) shall be written advice relating to—

(a) the educational, medical, psychological or other features of the case (according to the nature of the advice sought)which appear to be relevant to the child’s educational needs (including his likely future needs);

(b) how those features could affect the child’s educational needs, and

(c) the provision which is appropriate for the child in light of those features of the child’s case, whether by way of special educational provision or non-educational provision, bu not relating to any matter which is required to be specified in astatement by virtue of section 168(4)(b).

(3) A person from whom the advice referred to in paragraph (1) is sought may in connection therewith consult such persons as it appears to him expedient to consult; and he shall consult such persons, if any, as are specified in the particularcase by the authority as persons who have relevant knowledge of, or information relating to, the child.

(4) When seeking the advice referred to in paragraph (1)(b) to (f) an authority shall provide the person from whom it is sought with copies of—

(a) any representations made by the parent, and

(b) any evidence submitted by, or at the request of, the parent under section 167(1)(d).

(5) The authority need not seek the advice referred to in paragraph (1)(b), (c), (d), (e) or (f) if—

(a) the authority have obtained advice under paragraph (1)(b), (c), (d), (e) or (f) respectively within the preceding 12 months,and

(b) the authority, the person from whom the advice was obtained and the child’s parent are satisfied that the existingadvice is sufficient for the purpose of arriving at a satisfactory assessment.

Educational advice

7.—(1) The educational advice referred to in regulation 6(1)(b) shall, subject to paragraphs (2) to (5), be sought—

(a) from the head teacher of each school which the child is currently attending or which he has attended at any time withinthe preceding 18 months;

(b) if advice cannot be obtained from a head teacher of a school which the child is currently attending (because the child is not attending a school or otherwise) from a person who the authority are satisfied has experience of teaching children with special educational needs or knowledge of the differing provision which may be called for in different cases to meet thoseneeds;

(c) if the child is not currently attending a school and if advice obtained under subparagraph (b) is not advice from sucha person, from a person responsible for educational provision for him; and

(d) if any of the child’s parents is a serving member of Her Majesty’s armed forces, from the Service Children’s Education Authority.

(2) The advice sought as provided in paragraph (1) shall not be sought from any person who is not a qualified teacher within the meaning of section 218 of the Education Reform Act 1988(8).

(3) The advice sought from a head teacher as provided in paragraph (1)(a) shall, if the head teacher has not himself taught the child within the preceding 18 months, be advice given after consultation with a teacher who has so taught the child.

(4) The advice sought from a head teacher as provided in paragraph (1)(a) shall include advice relating to the steps which have been taken by the school to identify and assess the special educational needs of the child and to make provisionfor the purpose of meeting those needs.

(5) Where it appears to the authority, in consequence of medical advice or otherwise, that the child in question is—

(a) hearing impaired, or

(b) visually impaired, or

(c) both hearing impaired and visually impaired,

and any person from whom advice is sought as provided in paragraph (1) is not qualified to teach pupils who are soimpaired then the advice sought shall be advice given after consultation with a person who is so qualified.

(6) For the purposes of paragraph (5) a person shall be considered to be qualified to teach pupils who are hearing impaired or visually impaired or who are both hearing impaired and visually impaired if he is qualified to be employed at a school as a teacher of a class for pupils who are so impaired otherwise than to give instruction in a craft, trade, or domesticsubject.

(7) Paragraphs (3) and (5) are without prejudice to regulation 6(3).

Medical advice

8.  The advice referred to in paragraph 6(1)(c) shall be sought from the district health auhority, who shall obtain the advice from a fully registered medical practitioner.

Psychological advice

9.—(1) The psychological advice referred to in regulation 6(1)(d) shall be sought from a person—

(a) regularly employed by the authority as an educational psychologist, or

(b) engaged by the authority as an educational psychologist in the case in question.

(2) The advice sought from a person as provided in paragraph (1) shall, if that person has reason to believe that another psychologist has relevant knowledge of, or information relating to, the child, be advice given after consultation withthat other psychologist.

(3) Paragraph (2)

is without prejudice to regulation 6(3).

Matters to be taken into account in making an assessment

10.  When making an assessment an authority shall take into consideration—

(a) any representations made by the child’s parent under section 167(1)(d);

(b) any evidence submitted by, or at the request of, the child’s parent under section 167(1)(d); and

(c) the advice obtained under regulation 6.

Time limits

11.—(1) Where under section 167(1) the authority serve a notice on the child’s parent informing him that they propose to make an assessment of the child’s educational needs under section 167 they shall within 6 weeks of the dateof service of the notice give notice to the child’s parent—

(a) under section 167(4) of their decision to make an assessment, and of their reasons for making that decision, or

(b) under section 167(6) of their decision not to assess the educational needs of the child.

(2) Where under section 174(2) the authority serve a notice on the child’s parent informing him that they propose E$to make an assessment of the child’s educational needs under section 167 they shall within 6 weeks of the date of service of the notice give notice to the child’s parent and to the governing body of the grant-maintained school which asked theauthority to make an assessment—

(a) under section 174(5) of their decision to make an assessment and their reasons for making that decision, or

(b) under section 174(6) of their decision not to assess the educational needs of the child.

(3) Where under sections 172(2) or 173(1) a parent asks the authority to arrange for an assessment to be madeunder section 167 they shall within 6 weeks of the date of receipt of the request give notice to the child’s parent—

(a) under section 167(4) of their decision to make an assessment, or

(b) under section 172(3)(a) or 173(2)(a) respectively of their decision not to comply with the request and of the parent’s right to appeal to the Tribunal against the determination.

(4) An authority need not comply with the time limits referred to in paragraphs (1) to (3) if it is impractical to do sobecause—

(a) the authority have requested advice from the head teacher of a school during a period beginning one week before any date on which that school was closed for a continuous period of not less than 4 weeks from that date and ending one weekbefore the date on which it re-opens;

(b) exceptional personal circumstances affect the child or his parent during the 6 week period referred to in paragraphs(1) to (3); or

(c) the child or his parent are absent from the area of the authority for a continuous period of not less than 4 weeks duringthe 6 week period referred to in paragraphs (1) to (3).

(5) Subject to pragraph (6), where under section 167(4) an authority have given notice to the child’s parent of their decision to make an assessment they shall complete that assessment within 10 weeks of the date on which such notice was given.

(6) An authority need not comply with the time limit referred to in paragraph (5) if it is impractical to do so because—

(a) in exceptional cases after receiving advice sought under regulation 6 it is necessary for the authority to seek further advice;

(b) the child’s parent has indicated to the authority that he wishes to provide advice to the authority after the expiry of 6 weeks from the date on which a request for such advice under regulation 6(a) was received, and the authority have agreed to consider such advice before completing the assessment;

(c) the authority have requested advice from the head teacher of a school under regulation 6(1)(b) during a period beginning one week before any date on which that school was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(d) the authority have requested advice from a district health authority or a social services authority under regulation 6(c) or (e) respectively and the district health authority or the social services authority have not complied with that request within 6 weeks from the date on which it was made;

(e) exceptional personal circumstances affect the child or his parent during the 10 week period referred to in paragraph (5);

(f) the child or his parent are absent from the area of the authority for a continuous period of not less than 4 weeks duringthe 10 week period referred to in paragraph (5); or

(g) the child fails to keep an appointment for an examination or a test during the 10 week period referred to in paragraph(5).

(7) Subject to paragraph (8), where an authority have requested advice from a district health authority or a social services authority under regulation 6(1)(c) or (e) respectively they shall comply with that request within 6 weeks of the dateon which they receive it.

(8) A district health authority or a social services authority need not comply with the time limit referred to inparagraph (7) if it is impractical to do so because—

(a) exceptional personal circumstances affect the child or his parent during the 6 week period referred to in paragraph (7);

(b) the child or his parent are absent from the area of the authority for a continuous period of not less than 4 weeks duringthe 6 week period referred to in paragraph (7);

(c) the child fails to keep an appointment for an examination or a test made by the district health authority or the social services authority respectively during the 6 week period referred to in paragraph (7); or

(d) they have not before the date on which a copy of a notice has been served on them in accordance with regulation 5(1) or a notice has been served on them in accordance with regulation 5(3) produced or maintaied any information or recordsrelevant to the assessment of the child under section 167.

PART III STATEMENTS

Notice accompanying a proposed statement

12.  The notice which shall accompany a copy of a proposed statement served on the parent pursuant to paragraph 2 of Schedule 10 to the Act shall be in a form substantially corresponding to that set out in Part A of the Schedule and shall contain the information therein specified.

Statement of special educational needs

13.  A statement of a child’s special educational needs made under section 168(1) shall be in a form substantially corresponding to that set out in Part B of the Schedule, shall contain the information therein specified, and shall be datedand authenticated by the signature of a duly authorised officer of the authority concerned.

Time limits

14.—(1) Where under section 167 an authority have made an assessment of the educational needs of a child for whom no statement is maintained they shall within two weeks of the date on which the assessment was completedeither—

(a) serve a copy of a proposed statement and a written notice on the child’s parent under paragraph 2 of Schedule 10to the Act, or

(b) give notice in writing to the child’s parent under section 169(1) that they have decided not to make a statement andthat he may appeal against that decision to the Tribunal.

(2) Where under section 167 an authority have made an assessment of the educationalneeds of a child for whoma statement is maintained they shall within two weeks of the date on which the assessment was completed—

(a) under paragraph 10(1) of Schedule 10 to the Act serve on the child’s parent a notice that they propose to amend the statement and of his right to make representations;

(b) under paragraph 11(2) of Schedule 10 to the Act give notice to the child’s parent that they have determined to ceaseto maintain the statement and of his right of appeal to the Tribunal; or

(c) serve on the child’s parent a notice which informs him that they have determined not to amend the statement and their reasons for that determination, which is accompanied by copies of the professional advice obtained during the assessment, and which informs the child’s parent that under section 170(1)(c) he may appeal to the Tribunal against the description in the statement of the authority’s assessment of the child’s special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact.

(3) Subject to paragraph (4), where an authority have served a copy of a proposed statement on the child’s parent under paragraph 2 of Schedule 10 to the Act they shall within 8 weeks of the date on which the proposed statement was served serve a copy of the completed statement and a written notice on the child’s parent under prargraph 6 of that Schedule, or give notice to the child’s parent that they have decided not to make a statement.

(4) The authority need not comply with the time limit referred to in paragraph (3) if it is impractical to do so because—

(a) exceptional personal circumstances affect the child or his parent during the 8 week period referred to in paragraph (3);

(b) the child or his parent are absent from the area of the authority for a continuous period of not less than 4 weeks duringthe 8 week period referred to in paragraph (3);

(c) the child’s parent indicates that he wishes to make representations to the authority about the content of the statement under paragraph 4(1)(a) of Schedule 10 to the Act after the expiry of the 15 day period for making such representationsprovided for in paragraph 4(4) of that Schedule;

(d) a meeting between the child’s parent and an officer of the authority has been held pursuant to paragraph 4(1)(b) of Schedule 10 to the Act and the child’s parent has required that another such meeting be arranged or under paragraph 4(2) of that Schedule has required a meeting with the appropriate person under to be arranged; or

(e) the authority have sent a written request to the Secretary of State seeking his consent under section 189(5)(b) to the child being educated at an independent school which is not approved by him and such consent has not been received bythe authority within two weeks of the date on which the request was sent.

(5) Where under paragraph 8(1) of Schedule 10 to the Act the child’s parent asks the authority to substitute for the name of a school or institution specified in a statement the name of another school specified by him and where the condition referred to in paragraph 8(1)(b) of that Schedule has been satisfied the authority shall within 8 weeks of the date on which the request was received either—

(a) comply with the request; or

(b) give notice to the child’s parent under paragraph 8(3) of that Schedule that they have determined not to comply withthe request and that he may appeal against that determination to the Tribunal.

(6) Where under paragraph 10(1) of Schedule 10 to the Act an authority serve a notice on the child’s parent informing him of their proposal to amend a statement they shall not amend the statement after the expiry of 8 weeks fromthe date on which the notice was served.

(7) Where under paragraph 11(2) of Schedule 10 to the Act an authority give notice to the child’s parent that they have determined to cease to maintain a statement they shall not cease to maintain the statement—

(a) before the expiry of the prescribed period during which the parent may appeal to the Tribunal against the determination,or

(b) after the expiry of 4 weeks from the end of that period.

Review of statement where child not aged 14 attends school

15.—(1) This regulation applies where—

(a) an authority review a statement under section 172(5) other than on the making of an assessment,

(b) the child concerned attends a school, and

(c) regulation 16 does not apply.

(2) The authority shall by notice in writing require the head teacher of the child’s school to submit a report to them under this regulation by a specified date not less than two months from the date the notice is given and shall send a copyof the notice to the child’s parent.

(3) The head teacher shall for the purpose of preparing the report referred to in paragraph (2) seek advice as to thematters referred to in paagraph (4) from—

(a) the child’s parent;

(b) any person whose advice the authority consider appropriate for the purpose of arriving at a satisfactory report andwhom they specify in the notice referred to in paragraph (2), and

(c) any person whose advice the head teacher considers appropriate for the purpose of arriving at a satisfactory report.

(4) The advice referred to in paragraph (3) shall be written advice as to—

(a) the child’s progress towards meeting the objectives specified in the statement;

(b) the child’s progress towards attaining any targets established in furtherance of the objectives specified in the statement;

(c) where the school is not established in a hospital and is a maintained, grant-maintained or grant-maintained special school, the application of the provisions of the National Curriculum to the child;

(d) where the school is not established in a hospital and is a maintained, grant-maintained or grant-maintained special school, the application of any provisions substituted for the provisions of the National Curriculum in order to maintain a balanced and broadly based curriculum;

(e) where appropriate, and in any case where a transition plan exists, any matters which are the appropriate subject of such a plan;

(f) whether the statement continues to be appropriate;

(g) any amendments to the statement which would be appropriate; and

(h) whether the authority should cease to maintain the statement.

(5) The notice referred to in paragraph (2) shall require the head teacher to invite the following persons to attenda meeting to be held on a date before the report referred to in that paragraph is submitted—

(a) the representative of the authority specified in the notice,

(b) the child’s parent,

(c) a member or members of the staff of the school who teach the child or who are otherwise responsible for theprovision of education for the child whose attendance the head teacher considers appropriate,

(d) any other person whose attendance the head teacher considers appropriate, and

(e) any person whose attendance the authority consider appropriate and who is specified in the notice.

(6) The head teacher shall not later than two weeks before the date on which a meeting referred to in paragraph (5) is to be held send to all the persons invited to that meeting copies of the advice he has received pursuant to his request under paragraph (3) and by written notice accompanying the copies shall request the recipients to submit to him before orat the meeting written comments on that advice and any other advice which they think appropriate.

(7) The meeting referred to in paragraph (5) shall consider—

(a) the matters referred to in paragraph (4); and

(b) any significant changes in the child’s circumstances since the date on which the statement was made or last reviewed.

(8) The meeting shall recommend—

(a) any steps which it concludes ought to be taken, including whether the authority should amend or cease to maintain the statement,

(b) any targets to be established in furtherance of the objectives specified in the statement which it concludes the child ought to meet during the period until the next review, and

(c) where a transition plan exists, the matters which it concludes ought to be included in that plan. d

(9) If the meeting cannot agree the recommendations to be made under paragraph (8) the persons who attended the meeting shall make differing recommendations as appears necessary to each of them.

(10) The report to be submitted under paragraph (2) shall be completed after the meeting is held and shall include the head teacher’s assessment of the matters referred to in paragraph (7) and his recommendations as to the matters referred to in paragraph (8), and shall refer to any difference between his assessment and recommendations and those of the meeting.

(11) When the head teacher submits his report to the authority under paragraph (2) he shall at the same time sendcopies to—

(a) the child’s parent,

(b) the persons from whom the head teacher sought advice under paragraph (3),

(c) the persons who were invited to attend the meeting in accordance with paragraph (5),

(d) any other person to whom the authority consider it appropriate that a copy be sent and to whom they direct him to send a copy, and

(e) any other person to whom the head teacher considers it appropriate that a copy be sent.

(12) The authority shall review the statement under section 172(5) in light of the report and any other information or advice which they consider relevant, shall make written recommendations as to the matters referred to in paragraph (8)(a) and (b) and, where a transition plan exists, shall amend the plan as they consider appropriate.

(13) The authority shall within one week of completing the review under section 172(5) send copies of the recommendations and any transition plan referred to in paragraph (12) to—

(a) the child’s parent;

(b) the head teacher;

(c) the persons from whom the head teacher sought advice under paragraph (3);

(d) the persons who were invited to attend the meeting in accordance with paragraph (5), and

(e) any other person to whom the authority consider it appropriate that a copy be sent.

Review of statement where child aged 14 attends school

16.—(1) This regulation applies where—

(a) an authority review a statement under section 172(5) other than on the making of an assessment,

(b) the child concerned attends a school, and

(c) the review is the first review commenced after the child has attained the age of 14 years.

(2) The authority shall for the purpose of preparing a report under this regulation by notice in writing require the head teacher of the child’s school to seek the advice referred to in regulation 15(4), including in all cases advice as to the matters referred to in regulation 15(4)(e), from—

(a) the child’s parent,

(b) any person whose advice the authority consider appropriate for the purpose of arriving at a satisfactory report and whom they specify in the notice referred to above, and

(c) any person whose advice the head teacher considers appropriate for the purpose of arriving at a satisfactory report.

(3) The authority shall invite the following persons to attend a meeting to be held on a date before the review referred to in paragraph (1) is required to be completed—

(a) the child’s parent;

(b) a member or members of the staff of the school who teach the child or who are otherwise responsible for the provision of education for the child whose attendance the head teacher considers appropriate and whom he has asked the authority to invite;

(c) a representative of the social services authority;

(d) a person providing careers services under sections 8 to 10 of the Employment and Training Act 1973(9);

(e) any person whose attendance the head teacher considers appropriate and whom he has asked the authority to invite;and

(f) any person whose attendance the authority consider appropriate.

(4) The head teacher shall not later than two weeks before the date on which the meeting referred to in paragraph (3) is to be held serve on all the persons invited to attend that meeting copies of the advice he has received pursuant to his request under paragraph (2) and shall by written notice request the recipients to submit to him before or at the meetingwritten comments on that advice and any other advice which they think appropriate.

(5) A representative of the authority shall attend the meeting.

(6) The meeting shall consider the matters referred to in regulation 15(7), in all cases including the matters referred to in regulation 15(4)(e), and shall make recommendations in accordance with regulation 15(8) and (9), in all cases includingrecommendations as to the matters referred to in regulation 15(8)(c).

(7) The report to be prepared by the authority under paragraph (2) shall be completed after the meeting, shall Ucontain the authority’s assessment of the matters required to be considered by the meeting and their recommendations as to the matters required to be recommended by it and shall refer to any difference between their assessment and recommendations and those of the meeting.

(8) The authority shall within one week of the date on which the meeting was held send copies of the reportcompleted under paragraph (7) to—

(a) the child’s parent;

(b) the head teacher;

(c) the persons fro whom the head teacher sought advice under paragraph (2);

(d) the persons who were invited to attend the meeting under paragraph (3); and

(e) any person to whom they consider it appropriate to send a copy.

(9) The authority shall review the statement under section 172(5) in light of the report and any other information or advice which it considers relevant, shall make written recommendations as to the matters referred to in regulation 15(8)(a)and (b), and shall prepare a transition plan.

(10) The authority shall within one week of completing the review under section 172(5) send copies of the recommendations and the transition plan referred to in paragraph (9) to the persons referred to in paragraph (8).

Review of statement where child does not attend school

17.—(1) This regulation applies where an authority review a statement under section 172(5) other than on the making of an assessment and the child concerned does not attend a school. 6$

(2) The authority shall prepare a report addressing the matters referred to in regulation 15(4), including the matters referred to in regulation 15(4)(e) in any case where the review referred to in paragraph (1) is commenced after the child has attained the age of 14 years or older, and for that purpose shall seek advice on those matters from the child’s parent any other person whose advice they consider appropriate in the case in question for the purpose of arriving at a satisfactory report.

(3) The authority shall invite the following persons to attend a meeting to be held on a date before the review referred to in paragraph (1) is required to be completed—

(a) the child’s parent;

(b) where the review referred to in paragraph (1) is the first review commenced after the child has attained the age of 14years, a representative of the social services authority;

(c) where subparagraph (b) applies, a person providing careers services under sections 8 to 10 of the Employment andTraining Act 1973; and

(d) any person or persons whose attendance the authority consider appropriate.

(4) The authority shall not later than two weeks before the date on which the meeting referred to in paragraph (3) is to be held send to all the persons invited to that meeting a copy of the report which they propose to make under paragraph (2) and by written notice accompanying the copies shall request the recipients to submit to the authority writtencomments on the report and any other advice which they think appropriate.

(5) A representative of the authority shall attend the meeting.

(6) The meeting shall consider the matters referred to in regulation 15(7), including in any case where the review is commenced after the child has attained the age of 14 years the matters referred to in regulation 15(4)(e), and shall make recommendations in accordance with regulation 15(8) and (9), including in any case where the child has attained the age of14 years or older as aforesaid recommendations as to the matters referred to in regulation 15(8)(c).

(7) The report prepared by the authority under paragraph (2) shall be completed after the meeting referred to in paragraph (3) is held, shall contain the authority’s assessment of the matters required to be considered by the meeting and their recommendations as to the matters required to be recommended by it, and shall refer to any difference between their assessment and recommendations and those of the meeting.

(8) The authority shall within one week of the date on which the meeting referred to in paragraph (3) was held send copies of the report completed under paragraph (7) to—

(a) the child’s parent;

(b) the persons from whom they sought advice under paragraph (2);

(c) the persons who were invited to attend the meeting under paragraph (3); and

(d) any person to whom they consider it appropriate to send a copy.

(9) The authority shall review the statement under section 172(5) in light of the report and any other information or advice which it considers relevant, shall make written recommendations as to the matters referred to in regulation 15(8)(a) and (b), in any case where the review is the first review commenced after the child has attained the age of 14 years preparea transition plan, and in any case where a transition plan exists amend the plan as they consider appropriate.

(10) The authority shall within one week of completing the review under section 172(5) send copies of therecommendations and any transition plan referred to in paragraph (9) to the persons referred to in paragraph (8).

Transfer of statements

18.—(1) This regulation applies where a child in respect of whom a statement is maintained moves from the areaof the authority which maintains the statement (“the old authority”) into that of another (“the new authority”).

(2) The old authority shall transfer the statement to the new authority, and from the date of the transfer—

(a) the statement shall be treated for the purposes of the new authority’s duties and functions under Part III of the Actand these Regulations as if it had been made by the new authority on the date on which it was made by the old authority, and

(b) where the new authority make an assessment under section 167 and the old authority have supplied the new authority with advice obtained in pursuance of a previous assessment regulation 6(5) shall apply as if the new authority had obtained the advice on the date on which the old authority obtained it.

(3) The new authority shall within 6 weeks of the date of the transfer serve a notice on the child’s parent informing him—

(a) that the statement has been transferred,

(b) whether they proposed to make an assessment under section 167, and

(c) when they propose to review the statement in accordance with paragraph (4).

(4) The new authority shall review the statement under section 172(5) before the expiry of whichever of the following two periods expires later—

(a) the period of twelve months beginning with the making of the statement, or as the case may be, with the previous review, or

(b) the period of three months beginning with the date of the transfer.

(5) Where by virtue of the transfer the new authority come under a duty to arrange the child’s attendance at a school specified in the statement but in light of the child’s move that attendance is no longer practicable the new authority may arrange for the child’s attendance at another school appropriate for the child until such time as it is possible to amendthe statement in accordance with paragraph 10 of Schedule 10 to the Act.

Restriction on disclosure of statements

19.—(1) Subject to the provisions of the Act and of these Regulations, a statement in respect of a child shall notbe disclosed without the parent’s consent except—

(a) to persons to whom, in the opinion of the authority concerned, the statement should be disclosed in the interests ofthe child;

(b) for the purposes of any appeal under the Act;

(c) for the purposes of educational research which, in the opinion of the authority, may advance the education of children with special educational needs, if, but only if, the person engaged in that research undertakes not to publish anything contained in, or derived from, a statement otherwise than in a form which does not identify any individual concernedincluding, in particular, the child concerned and his parent;

(d) on the order of any court or for the purposes of any criminal proceedings;

(e) for the purposes of any investigation under Part III of the Local Government Act 1974 (investigation of maladministration)(10);

(f) to the Secretary of State when he requests such disclosure for the purposes of deciding whether to give directions or make an order under section 68 or 99 of the Education Act 1944(11);

(g) for the purposes of an assessment of the needs of the child with respect to the provision of any statutory services for him being carried out by officers of a social services authority by virtue of arrangements made under section 5(5) of the Disabled Persons (Services, Consultation and Representation) Act 1986(12);

(h) for the purposes of a local authority in the performance of their duties under sections 22(3)(a), 85(4)(a), 86(3)(a) and 87(3) of the Children Act 1989(13); or

(i) to one of Her Majesty’s Inspectors of Schools, or to a registered inspector or a member of an inspection team, who requests the right to inspect or take copies of a statement in accordance with section 3(3) of or paragraph 7 of Schedule 2 to the Education (Schools) Act 1992(14)respectively.

(2) The arrangements for keeping such statements shall be such as to ensure, so far as is reasonably practicable, that unauthorised persons do not have access to them.

(3) In this regulation any reference to a statement includes a reference to any representations, evidence, advice or information which is set out in the appendices to a statement.

PART IV REVOCATION AND TRANSITIONAL PROVISIONS

Revocation of the 1983 Regulations

20.  Subject to regulation 21, the 1983 Regulations, the Education (Special Educational Needs) (Amendment) Regulations 1988(15)and the Education (Special Educational Needs) (Amendment) Regulations 1990(16)are hereby revoked.

Transitioal provisions

21.—(1) Subject to the following provisions of this regulation references in these Regulations to anything done under the Act or these Regulations shall be read in relation to the times, circumstances or purposes in relation to which a corresponding provision of the 1981 Act or the 1983 Regulations had effect and so far as the nature of the reference permits as including a reference to that corresponding provision.

(2) Regulations 3 to 8 of the 1983 Regulations shall continue to apply in relation to any assessment where before 1st September 1994 in pursuance of section 5(5) of the 1981 Act

(3) Where regulations 3 to 8 of the 1983 Regulations continue to apply in relation to any assessment but the authority have not before 1st January 1995—

(a) notified the parent of their decision that they are not required to determine the special educational provision of the child in accordance with section 5(7) of the 1981 Act, or

(b) served on the parent a copy of a proposed statement in accordance with section 7(3) of the 1981 Act

Part II of these Regulations shall apply in relation to the assessment from 1st January 1995 as if on that date the authority had given notice to the parent under section 167(4) of their decision to make an assessment.

(4) Where in accordance with paragraph (3) above Part II of these Regulations applies in relation to an assessment the authority shall obtain advice in accordance with Part II, but advice obtained in accordance with the 1983 Regulations shall be considered to have been obtained under Part II if such advice is appropriate for the purpose of arriving at a satisfactoryassessment under that Part.

(5) Where before 1st September 1994 in accordance with section 5(3) of the 1981 Act the authority have served notice on the child’s parent that they propose to make an assessment but they have not before that date notified the parent under section 5(5) of the 1981 Act that they have decided to make the assessment or notified them that they have decided not to make the assessment, the authority shall decide whether or not to make the assessment in accordance with section 167 and not later than 13th October 1994 give notice to the child’s parent—

(a) under section 167(4) of their decision to make an assessment, and of their reasons for making that decision, or

(b) under section 167(6) of their decision not to assess the educational needs of the child,

and Part II of these Regulations shall apply to any such assessment.

(6) Where before 1st September 1994 in accordance with section 9 of the 1981 Act a parent has asked the authority to arrange for an assessment to be made of the child’s educational needs but the authority have not before that date notified the parent under section 5(5) of the 1981 Act that they have decided to make the assessment or notified them that they have decided not to make the assessment, the authority shall decide whether or not to make the assessment inaccordance with section 167 and not later than 13th October 1994 give notice to the child’s parent—

(a) under section 167(4) of their decision to make an assessment, or

(b) under section 172(3)(a) or 173(2)(a) of their decision not to comply with the request and of the parent’s right toappeal to the Tribunal against the determination,

and Part II of these Regulations shall apply to any such assessment.

(7) Regulation 10 of the 1983 Regulations shall continue to apply to the making of any statement where before 1st FJanuary 1995 the authority have served on the parent a copy of a proposed statement in accordance with section 7(3) ofthe 1981 Act, and regulations 12, 13 and 14(1) to (4) of these Regulations shall not apply to making of any such statement.

(8) Regulation 14(6)

and (7) shall not apply in relation to a proposal to amend or cease to maintain a statement where an authority serve a notice under paragraph 6 of Schedule 1 to the 1981 Act(17)before 1st September 1994.

(9) Regulations 5 to 17 shall not apply to any review of a statement which is required to be completed before 1st December 1994.

(10) Regulations 15 to 17 shall apply to a review of a statement which is not required to be completed before 1st December 1994, but where the statement was made under the 1981 Act they shall apply with any necessary modifications, including the following:

(a) where the review is the first review commenced after 1st September 1994—

(i) the authority shall seek advice as to the objectives which the special educational provision for the child shouldmeet rather than as to the child’s progress towards meeting the objectives specified in the statement;

(ii) the authority shall seek advice as to the targets which should be established in furtherance of those objectivesrather than as to the child’s progress towards attaining any such targets;

(iii) where the child has attained the age of 14 years before the date on which the review is commenced theauthority shall in any event seek advice as to any matters which are the appropriate subject of a transition plan;

(iv) the meeting held in accordance with regulation 15(7), 16(6) or 17(6) shall consider the matters referred to in those regulations as modified by subparagraphs (i) to (iii) above as appropriate, and shall make recommendations under regulation 15(8), 16(7) or 17(7) but including recommendations as to the objectives referred to in subparagraph (i), the targets referred to in subparagraph (ii) and where appropriate the transition plan referred to in paragraph (iii); and

(v) the authority shall review the statement in accordance with regulation 15(12), 16(9) or 17(9), shall makerecommendations as to the matters referred to in those regulations read in light of the modifications in this subparagraph, shall prepare a transition plan where subparagraph (iii) above applies, and shall in any event specify the objectives referred to in subparagraph (i) above;

and

(b) where the review is not the first review commenced after 1st September 1994 any reference to objectives shall includea reference to objectives specified in accordance with subparagraph (a)(v) above in addition to objectives specified in astatement.

(11) Subject to paragraphs (12) and (13), regulation 12 of the 1983 Regulations shall continue to apply in relation to a transfer on a date before 1st September 1994, and regulation 18 of these Regulations shall not apply in relation to sucha transfer.

(12) Notwithstanding paragraph (11), where a statement has been transferred on a date before 1st September 1994and the new authority has not before that date either—

(a) in pursuance of section 5(3) of the 1981 Act served a notice on the child’s parent that they propose to make an assessment, or

(b) in pursuance of regulation 12(4) of the 1983 Regulations notified the child’s parent that they do not propose to make an assessment,

they shall comply with regulation 18(3) of these Regulations before 13th October 1994.

(13) Notwithstanding paragraph (11), where a statement has been transferred on a date before 1st September 1994 the new authority shall review the statement under section 172(5) before the expiry of whichever of the following two periods expires later—

(a) the period of twelve months beginning with the making of the statement, or as the case may be, with the previousreview, or

(b) the period ending on 30th November 1994.

(14) Regulation 11 of the 1983 Regulations shall not apply to statements made before or after 1st September 1994 and regulation 19 of these Regulations shall apply, except that a statement may be disclosed for the purposes of any appeal under section 8 of the 1981 Act(18)as well as for the purposes of any appeal under the Act.

Regulations 12 and 134.

SCHEDULE

PART A

Notice to Parent

PART B

Statement of Special Educational Needs

Eric Forth

Parliamentary Under Secretary of State,

Department for Education

6th April 1994

John Redwood

Secretary of State for Wales

7th April 1994

Explanatory Note

(This note is not part of the Regulations)

These Regulations relate to the assessment of special educational needs and to statements of such needs under Part III of the Education Act 1993. Part III replaces with modifications the provisions relating to such assessments and statements in the Education Act 1981, and these Regulations replace with modifications the Education (Special Educational Needs) Regulations 1983, which are revoked (regulation 20).

The Regulations make provision for a head teacher to delegate his functions under them generally to a qualified teacher, or in a particular case to the staff member who teaches the child (regulation 3).

The Regulations provide that local education authorities in making an assessment of a child’s special educational needs must seek advice from the child’s parent, educational advice, medical advice, psychological advice, advice from the social services authority and any other advice which they consider appropriate for the purpose of arriving at a satisfactory assessment (regulation 6). If such advice has been obtained on making a previous assessment within the last 12 months and certain persons are satisfied that it is sufficient, it is not necessary to obtain new advice (regulation 6(5)). Detailed provision is made as to the persons from whom educational, medical and psychological advice must be sought (regulations 7 to 9). It is provided that in making an assessment an authority shall take into consideration representations from the parent, evidence submitted by the parent, and the advice which has been obtained (regulation 10).

The Regulations prescribe the form and content of a notice to be served on a parent with a draft statement of special educational needs, and of a statement of special educational needs (regulations 12 and 13 and Part A and B of the Schedule respectively).

The Regulations also supplement the procedural framework for making an assessment and a statement contained in Part III of the Education Act 1993 and Schedules 9 and 10 thereto. Detailed provision is made for the service of documents by post (regulation 4). They require copies of notices of a local education authority’s proposal to make an assessment, their decision to make an assessment or notices of a parent’s request for an assessment to be made, to be served on the social services authority, the district health authority and the head teacher of the child’s school (regulation 5). Subject to exceptions, they require local education authorities to carry out various steps in making an assessment or a statement within prescribed time limits (regulations 11 and 14 respectively).

Detailed provision is made as to how a review of a statement by a local education authority under section 172 of the Education Act 1993 is to be carried out (regulations 15 to 17). In particular it is provided that where a child attends school where the review is the first review after he has attained the age of 14 the head teacher of his school will obtain advice, the local education authority will chair a meeting, and the authority will prepare a transition plan (regulation 16). In the case of any other review where a child attends school the head teacher of his school will obtain advice, he will chair a meeting sand report to the local education authority (regulation 15). Where a child does not attend school provision is made for the local authority to obtain advice, to chair a meeting, and where the review is the first after he attains the age of 14, to preparea transition plan (regulation 17).

The Regulations provide for the transfer of a statement from one local education authority to another (regulation 18).

The duties of the transferor are transferred to the transferee, and within six weeks of the transfer the transferee must serve a notice on the parent informing him of the transfer, whether they propose to make an assessment, and when they propose –to review the statement (regulation 18(2) and (3)). It is provided that where it would not be practicable to require the transferee to arrange for the child’s attendance at a school specified in the statement they need not do so, but can arrangefor attendance at anoter school until it is possible to amend the statement (regulation 18(5)).

There are restrictions on the disclosure of statements and steps are to be taken to avoid unauthorised persons having access to them (regulation 19).

Detailed provision is made from the transition from the regime imposed by the 1983 Regulations to the regime imposed by these Regulations (regulation 21). In particular if an assessment has been commenced before 1st September 1994 the local education authority may continue to make the assessment under the 1983 Regulations, and may make any statement following the assessment under them as well (regulation 21(2) and (7)). These Regulations, and the time limits they impose, will not apply. However if the assessment is not complete before 1st January 1995 these Regulations will apply to the assessment as if it had been commenced under them on that date (regulation 21(3)).

(1)

1993 c. 35.

(2)

1981 c. 60.

(3)

1977 c. 49; section 8 was amended by paragraph 28 of Schedule 1 to the Health Services Act 1980 (c. 53) and by sections 1(1) of and Schedule 10 to the National Health Service and Community Care Act 1990 (c. 19); the definition of “district health authority” in section 128(1) was substituted by section 26(1) and(2)(b) of the National Health Service and Community Care Act 1990.

(4)

1970 c. 42; section 1 was amended by section 195(1) of the Local Government Act 1972 (c. 70).

(5)

1971 c. 80.

(6)

1981 c. 60.

(7)

S.I. 1983/29, amended by S.I. 1988/1067 and 1990/1524.

(8)

1988 c. 40.

(9)

1973 c. 50. Sections 8 to 10 were replaced by section 45 of the Trade Union and Employment Rights Act 1993 (c. 19).

(10)

1974 c. 7; Part III has been amended by paragraph 9(1) of Schedule 10 to the Community Land Act 1975 (c. 77), by paragraph 14 of Schedule 22 and Part XI of Schedule 34 to the Local Government, Planning and Land Act 1980 (c. 65), by paragraph 51(a) of Schedule 14 to the Local Government Act 1985 (c. 51), by paragraph 4 of Schedule 3 to the Local Government Act 1988 (c. 9), by paragraph 19 of Schedule 17 to the Housing Act 1988 (c. 50), by sections 23(1), (25, 194(1) and (4), and 195(2) of, and paragraph 38 of Schedule 11 and Part II of Schedule 12 to, the Local Government and Housing Act 1989 (c. 42), by section 1(6) of and paragraph 12 of Schedule 1 and paragraph 3 of Schedule 26 to the Water Act 1989 (c. 15), and by section 2(1) of and paragraph 25 of Schedule 1 tothe Water Consolidation (Consequential Provisions) Act 1991(c. 60).

(11)

1944 c. 31.

(12)

1986 c. 33.

(13)

1989 c. 41.

(14)

1992 c. 38; paragraph 7 of Schedule 2 was amended by the Education Act 1993 (c. 35), Schedule 19 paragraph 173(4).

(15)

S.I. 1988/1067.

(16)

S.I. 1990/1524. the authority notify the parent that they have decided to make an assessment, and Part II of these Regulations shall not apply in relation to any such assessment.

(17)

Paragraph 6(4) of Schedule 1 was added by the Education Reform Act 1988 (c. 40), Schedule 12, paragraph 85.

(18)

Section 8(1) was substituted by the Education Reform Act 1988 (c. 40), Schedule 12, paragraph 84.