152.Section 5 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (‘the 1986 Act’) makes provision in respect of people with a disability leaving full-time education under the age of nineteen years and eight months where they have previously received a statement of special educational needs (which was, but no longer is, the system in Wales) or an education, health and care plan (which is the system in England).
153.Section 5 of the 1986 Act no longer has any substantive effect in Wales. The Additional Learning Needs and Education Tribunal (Wales) Act 2018 effectively repealed, in relation to Wales, the provisions in the Education Act 1996 concerning statements of special educational needs, and replaced them with a new system. There are no longer any people in Wales with statements under the 1996 Act, or under older systems set out in the Education Acts of 1981 and 1993. As a result, the various references in section 5 to statements of special education needs do not have any meaningful effect in Wales.
154.The assessment system in section 5 has also been superseded by other legal developments in Wales. That section requires a local authority that has been notified about the person’s departure from full-time education to assess the person’s need for services from the authority under “the welfare enactments”. Section 5 also contains notification duties. In Wales, “the welfare enactments” means Parts 4 and 6 of the Social Services and Well-being (Wales) Act 2014 (‘the 2014 Act’).
155.The 2014 Act places duties on local authorities to assess the needs of adults and children where it appears those adults or children may need care and support. Section 19 of that Act contains the duty relating to adults and section 21 contains the duty relating to children.
156.These assessment duties apply more widely than the assessment duties in section 5 of the 1986 Act, as they are not limited to persons with disabilities who have received a statement of special needs and who are under a certain age. The special position of children with disabilities is specifically recognised by section 21 of the 2014 Act, as an assessment under that section must start from the presumption that children with disabilities need care and support (see section 21(7)). The Code of Practice relating to assessing the needs of individuals under the 2014 Act(14) sets out a process for assessing the needs of an individual for care and support and a process of review and re-assessment that will apply to assessments.
157.When an assessment of a person’s needs has been carried out under section 19 or section 21 of the 2014 Act, Part 4 of that Act and regulations made under it govern the next steps. Part 6 of the 2014 Act deals with the duties of a local authority towards a child who is in its care or accommodated by it.
158.The Act amends section 5 of the 1986 Act to expressly restrict its application to England and remove redundant references to the National Assembly, and makes related consequential amendments.
Commentary on Sections Part 3 – Repeals of Welsh Legislation Part 9 – Statements of special educational needs