New Additional Learning Needs System for Wales From September 2021

Update - New Additional Learning Needs System for Wales From September 2021.

In line with my previous blogs regarding the new Additional Needs System within Wales, there have been two recent developments on this same subject. The Welsh Government has published new information, and guidance, which can be found here. As specialists in education law, we have examined this new material, and within this blog, we have set out a summary of those findings. 

1. A Commencement Order made on the 29th October 2020 by the Minister of Education

The Welsh Ministers on the above date exercised their powers, and made a “Commencement Order”, the full title of this Order is “The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Commencement No. 1) Order 2020”. The Commencement Order simply gives the Welsh Ministers further powers, allowing them to create a variety of subordinate legislation such as regulations, orders, statutory guidance which will bring into force provisions of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (“the Act”). Those most eagerly awaited are; the creation and issuing of a revised Code of Practice, further Regulations about appeals and applications to the Tribunal, and further Regulations regarding the transfer of Individual Development Plans, and deciding whether an Individual Development Plan is necessary.

In summary the purpose of this Commencement Order is to supplement the 2018 Act, it allows the Welsh Ministers to finally put the flesh on the bones, and provide us with the long awaited finalised details as to how the new system will work in practice. However, the Commencement Order notably states that Sections 56 (1); section 56(4) to (6); and section 60, 61, and 62 will come into force on the 4th January 2021. 

Section 56 of the 2018 ALN Act relates to “independent special post-16 institutions”, and the requirement of Welsh Ministers to “establish and maintain a list of independent special post-16 institutions in Wales and England”. Section 56 (5) allows Regulations to be made, which will set out the requirements, and any rights of appeal in relation to the compiling of this list. 

For Section 61, a Local Health Board must designate an ‘Education Clinical Lead Officer’, and Section 62 the Local Authority must designate ‘Early Years Additional Learning Needs Lead Officer’. In terms of Section 60, this brings me to the second recent development, which has occurred as outlined in my introduction, of which I shall expand on in the next point. 

2. Draft: Additional Learning Needs Co-ordinator (Wales) Regulations 2020 (“the ALNCO Regulations”) laid before the Senedd for approval on the 3rd November 2020

These regulations supplement Section 60 of the 2018 ALN Bill, which requires ‘governing bodies of schools, and further education institutions in Wales to designate a person, or more than one person, to have responsibility for co-ordinating additional learning provision for pupils or students (as the case may be) with additional learning needs’. This designated person in accordance with Section 60 (3) will be known as an ALNCo (Additional Learning Needs Co-ordinator). Therefore, these draft regulations, which will come into force on 4th January 2021 provide details as to the qualifications or experience, which an ALNCo must have, and secondly the functions of the ALNCo role. 

Within the explanatory memorandum to the draft regulations, it highlights that the purpose of the ALNCo Regulations in terms of setting out the necessary qualifications, and tasks is to ensure a consistent approach to this statutory role in Wales. However, the regulations merely provide that the person appointed as an ALNCo by the governing body of a school/FE institution must be as follows:

i. A school or further education teacher (registered with the Education Workforce Council), or

ii. A special educational needs co-ordinator with the school prior to these regulations coming into force on the 4th January 2020. 

There is no expansion on this, the person/s appointed, and whether the ALNCo are required to have any specialist knowledge or experience in the area of additional learning needs. Whilst, this factor alone should not exclude the appointment of someone to the role, what is more concerning is there is no mention of specialist training, and skills, which would be required of an ALNCo. There is reference within Ms Williams Written Statement to funding that will be allocated to allow for a targeted programme of training and development in order to support this role. Yet, the details of this still remains very unclear, and the level of training and support for an ALNCo may vary, particularly if it is very much dependent on what the school/institution can or will allow. This is extremely concerning given the new ALN system sees the burden and delegation of duties being shifted from the Local Authority to the school in terms of deciding if a pupil has additional learning needs, and then having to identify, and secure the provision required to meet those needs. The role of ALNCo is going to play a fundamental and vital part of the new ALN system, and so it is essential that the person taking on the role of ALNCo must be suitably trained, and skilled within this area. 

Furthermore, this concern leads me onto the second part of the draft ALNCo regulations, which sets out the functions and role of the ALNCo. The detailed list can be found here at Regulations 5 and 6. The upshot is these do not provide much more than what we already knew, the functions prescribed are vague, and ultimately place an even heavier workload on the ALNCo, as mentioned above currently the duties held by the Local Authority will now be delegated to the schools/FE institutions. This is provided for in the regulations in the very first function required of the ALNCo ‘identify a pupil/student’s additional learning needs and co-ordinating the making of additional learning provision that meets a pupil’s additional needs’. The ALNCo therefore will be expected to not only identify and assess whether a pupil meets the relevant legal test, to determine if they have additional learning needs. They will have to coordinate the additional learning provision required to meet the pupil's additional needs, and in accordance with the draft ALNCo regulations, they will have to financially secure this provision. In summary, it is not an understatement to say that the workload implications placed on the ALNCo will mean they must act as a lawyer, financier, medical professional, teacher etc.  

Being a former teacher, I understand the heavy workload expected of a teacher when only having to teach, and there is currently insufficient time, and appropriate training provided, which allows a SENCO to carry out their role effectively. To expect a teacher to take on a role of this nature is a heavy burden; surely, the person taking on the role of ALNCo should be giving the opportunity of taking this as a standalone job, without the added pressure of teaching a class for the majority of the week. There is also the added responsibility as mentioned above that the ALNCo will have to wear many hats. This certainly makes one wonder whether this will have repercussions, in that there may not be an uptake of teachers willing to take on this complex role, and the impact of the role may inevitably result in a shortage of ALNCos. We certainly await to see if as stated in the explanatory memorandum to the draft regulations, the ALN Code has been sufficiently strengthened. Thus, providing clarity on the concerns raised as to the provision, and interpretation of sufficient time, which allows ALNCos to be able to carry out their statutory role.   

Conclusion 

Whilst, we welcome this newly published guidance, which supports the statement, Ms Williams; Minister for Education gave to the Cabinet Members in September 2020, that despite the impact of Covid19, the implementation of the new ALN system remains a key priority for this Government. On reflection, this information does not really shed much more light on the details of the forthcoming changes to the ALN system in Wales. There are still a lot of unanswered questions and concerns as to the impact these changes will have. So, it will certainly be interesting to see how the implementation of the new statutory roles will develop from January 2021 onwards. 

How we can help?

If you have concerns about the reforms then please do not hesitate to contact our specialist ALN education law solicitors team on 02920 291704.