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The Special Educational Needs and Disability (Detained Persons) Regulations 2015

Type Statutory-Instrument

Publication 2015-01-26

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 26th January 2015

Laid before Parliament: 28th January 2015

Coming into force: 1st April 2015

The Secretary of State makes the following Regulations, in exercise of the powers conferred by sections 31(4), 36(11), 37(4) , 44(7), 56(1) , 71(11), 73(4), 74(3), 80(1) and 135(3) of the Children and Families Act 2014 :

PART 1 — Introduction

Citation and commencement

1

These Regulations may be cited as the Special Educational Needs and Disability (Detained Persons) Regulations 2015 and come into force on 1st April 2015.

Interpretation

2

(1) In these Regulations —

“the Act” means the Children and Families Act 2014;

“detained person's health services commissioner” has the same meaning as in section 74(8) of the Act;

“the home commissioning body” means the body which was responsible for commissioning health services for the detained person immediately before the detention.

PART 2 — Detained persons with special educational needs

Assessments

Consideration of request

3

A home authority must consult the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained as soon as practicable after—

(a) receiving a request to secure a detained person's EHC needs assessment under section 71(2) of the Act, or

(b) the detained person has been brought or comes to the attention of the authority in accordance with section 71(4)(b) or (c) of the Act,

before determining whether it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention.

Determination whether or not special educational provision may be necessary

4

(1) Where a home authority determines that it is not necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention it must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained, in accordance with section 71(6) of the Act as soon as practicable, but in any event within 6 weeks of—

(a) receiving a request to secure a detained person's EHC needs assessment under section 71(2) of the Act, or

(b) the date on which the detained person has been brought or comes to the attention of the authority in accordance with section 71(4)(b) or (c) of the Act.

(2) Where the home authority is considering securing a detained person's EHC needs assessment it must also notify—

(a) the home commissioning body,

(b) the detained person's health services commissioner,

(c) the officers of the home authority who exercise the home authority's social services functions for children or young people with special educational needs,

(d) the youth offending team responsible for the detained person,

(e) in relation to a detained person who is a child, if the child is a registered pupil at a school, the head teacher of that school (or the person holding the equivalent position),

(f) in relation to a detained person who is a young person—

(i) if the young person is a registered pupil at a school, the head teacher of that school (or the person holding the equivalent position), or

(ii) if the young person is a student at a post-16 institution, the principal of that institution (or the person holding the equivalent position), and

(g) in relation to a detained person who has been deleted from the admission register in accordance with regulation 9(1)(j) of the School Attendance (Pupil Registration) (England) Regulations 2024, the person from whom the authority is required to seek advice and information from under regulation 6(1)(b).

Decision whether or not to conduct a detained person's EHC needs assessment

5

(1) The home authority must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained as soon as practicable and in any event within 6 weeks of—

(a) receiving a request to secure a detained person's EHC needs assessment under section 71(2) of the Act, or

(b) the date on which the detained person has been brought or comes to the attention of the authority in accordance with section 71(4)(b) or (c) of the Act,

of its decision whether or not it is necessary to secure a detained person's EHC needs assessment.

(2) The home authority must also notify the persons who were notified in accordance with regulation 4(2) of its decision.

(3) When notifying the appropriate person of its decision that it is not necessary to secure a detained person's EHC needs assessment, it must also notify them of—

(a) their right to appeal that decision,

(b) the time limits for doing so,

(d) the availability of information and advice in connection with a detained person's EHC needs assessment.

(4) The home authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) the home authority has requested advice from the head teacher or principal of a school or post-16 institution (or person holding the equivalent position) during a period beginning one week before any date on which that school or institution 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,

(b) exceptional personal circumstances affect the detained person or, where the detained person is a child, the child's parent during the time period referred to in paragraph (1), or

(c) where the detained person is a child, the child's parent is absent from the area of the authority for a continuous period of not less than 4 weeks during the time period referred to in paragraph (1).

Information and advice to be obtained for a detained person's EHC Needs Assessments

6

(1) Where the home authority secures a detained person's EHC needs assessment, it must seek the following advice and information, on the needs of the detained person on release from detention, what provision may be required to meet such needs and the outcomes that are intended to be achieved by the detained person receiving that provision on release from detention—

(a) advice and information from the appropriate person,

(b) educational advice and information—

(i) from the head teacher or principal of the school or post-16 or other institution that the detained person was attending immediately prior to their detention,

(ii) where this is not available, from a person who the home authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or

(iii) if the detained person was not attending a school or post-16 or other institution immediately prior to their detention and advice cannot be obtained under sub-paragraph (ii), from a person who was responsible for educational provision for the detained person at any time prior to their detention, and

(iv) if any parent of the detained person is a serving member of Her Majesty's armed forces, also from the Secretary of State for Defence,

(d) psychological advice and information from an educational psychologist,

(e) advice and information in relation to social care,

(f) advice and information from the person in charge of the relevant youth accommodation where the detained person is detained,

(g) advice and information from the youth offending team responsible for the detained person,

(h) advice and information from any other person the home authority thinks is appropriate,

(i) where the detained person would have been beyond year 9 (if not for their detention), advice and information in relation to provision to assist the detained person in preparation for adulthood and independent living, and

(j) advice and information from any person the appropriate person reasonably requests that the home authority seek advice from.

(2) Where it appears to the authority, in consequence of medical advice or otherwise, that the detained person in question is either or both—

(a) hearing impaired;

(b) visually impaired;

and any person from whom advice and information is sought as provided in paragraph (1)(b) is not qualified to teach children or young people who are so impaired, then the advice sought must be advice given after consultation with a person who is so qualified.

(3) When seeking advice in accordance with paragraphs (1)(b) to (j), the home authority—

(a) must provide the person from whom advice is being sought with copies of—

(i) any representations made by the appropriate person, and

(ii) any evidence submitted by or at the request of the appropriate person.

(b) may, with the consent of the person in charge of the relevant youth accommodation, provide the persons from whom advice is being sought with any representations made and any evidence submitted under section 71(2) of the Act, by the person in charge of the relevant youth accommodation where the detained person is detained.

(4) The home authority must not seek any of the advice referred to in paragraphs (1)(b) to (j) if such advice has previously been provided for any purpose and the person providing that advice, the home authority and the appropriate person are satisfied that it is sufficient for the purposes of the detained person's EHC needs assessment.

Matters to be taken into account in securing a detained person's EHC needs assessment

7

When securing an EHC needs assessment a home authority must—

(a) consult the detained person and, where the detained person is a child, the child's parent and take into account their views, wishes and feelings,

(b) consider any information provided to the home authority by or at the request of the detained person and, where the detained person is a child, the child's parent,

(d) engage the detained person and, where the detained person is a child, the child's parent and ensure they are able to participate in decisions,

(e) have regard to the need to support the detained person in order to facilitate their development, and help them to achieve their best educational and other outcomes, and

(f) minimise disruption for the detained person and their family.

Duty to co-operate in a detained person's EHC needs assessment

8

(1) Where a home authority requests the co-operation of a body in securing a detained person's EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.

(2) A body need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) exceptional circumstances affect the detained person or, where the detained person is a child, the child's parent during that 6 week period;

(b) where the detained person is a child, the child's parent is absent from the area of the authority for a continuous period of not less than 4 weeks during that 6 week period;

(c) where the detained person has an alternative person, the alternative person is absent from the area of the authority for a continuous period of not less than 4 weeks during that 6 week period;

(d) the detained person fails to keep an appointment for an examination or a test made by the body, during that 6 week period.

Provision of advice, information and support to the appropriate person

9

When securing a detained person's EHC needs assessment the home authority must consider whether the detained person or, where the detained person is a child, the child's parent requires any information, advice and support in order to enable them to take part effectively in the assessment, and if it considers that such information, advice or support is necessary, it must provide it.

Decision not to secure an EHC plan

10

(1) Where, following a detained person's EHC needs assessment, a home authority decides that it is not necessary for special educational provision to be made for the detained person in accordance with an EHC plan, the notification given in accordance with section 71(10) of the Act must be given as soon as practicable, and in any event within 16 weeks of the home authority receiving a request for a detained person's EHC needs assessment in accordance with section 71(2) of the Act, or the date on which the detained person has been brought or comes to the attention of the authority in accordance with section 71(4)(b) or (c) of the Act.

(2) The home authority must also notify —

(a) the home commissioning body,

(b) the detained person's health services commissioner,

(d) the person notified in accordance with regulation 4(2)(e),(f) or (g).

(3) When notifying the appropriate person in accordance with paragraph (1) the home authority must also notify them of—

(a) their right to appeal that decision,

(b) the time limits for doing so,

(d) the availability of information and advice relating to the special educational needs of children and young people.

(4) The home authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) the authority has requested advice from the head teacher or principal of a school or post-16 institution (or person holding the equivalent position) during a period beginning one week before any date on which that school or institution 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;

(b) exceptional personal circumstances affect the detained person or, where the detained person is a child, the child's parent during that time period; or

(c) where the detained person is a child, the child's parent is absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.

EHC plans

Preparation of EHC plans for a detained person

11

When preparing a detained person's EHC plan a home authority must—

(a) take into account the evidence received when securing the detained person's EHC needs assessment, and

(b) consider how best to achieve the outcomes to be sought for the detained person on release from detention.

Form of EHC plan

12

(1) When preparing an EHC plan a home authority must set out—

(a) the views, interests and aspirations of the detained person and, where the detained person is a child, the child's parent (section A);

(b) the detained person's special educational needs on release from detention (section B);

(c) the detained person's health care needs on release from detention, which relate to their special educational needs (section C);

(d) the detained person's social care needs on release from detention, which relate to their special educational needs or to a disability (section D);

(e) the outcomes sought for the detained person on release from detention (section E);

(f) the special educational provision required by the detained person on release from detention (section F);

(g) any health care provision on release from detention reasonably required by the learning difficulties or disabilities which result in the detained person having special educational needs (section G);

(h) any—

(i) social care provision which must be made for the detained person as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 on release from detention (section H1);

(ii) other social care provision on release from detention reasonably required by the learning difficulties or disabilities which result in the detained person having special educational needs (section H2);

(i) the name of the school, post-16 institution or other institution to be attended by the detained person on release from detention and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the detained person on release from detention (section I); and

(j) where any special educational provision is to be secured by a direct payment on release from detention, the special educational needs and outcomes to be met by the direct payment (section J),

and each section must be separately identified.

(2) The health care provision specified in the EHC plan in accordance with paragraph (1)(g) must be agreed by the home commissioning body.

(3) Where the detained person would have been in or beyond year 9 (if not for their detention), the EHC plan must include within the special educational provision, health care provision and social care provision specified, provision to assist the detained person in preparation for adulthood and independent living on release from detention.

(4) The advice and information obtained in accordance with regulation 6(1) must be set out in appendices to the EHC plan (section K).

Timescales for EHC plans

13

(1) When a home authority sends a draft plan to the appropriate person it must—

(a) give them at least 15 days, beginning with the day on which the draft plan was served, in which to—

(i) make representations about the content of the draft plan, and to request that a particular school or other institution be named in the plan, and

(ii) require the home authority to arrange a meeting between them and an officer of the home authority at which the draft plan can be discussed, and

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