Commentary on Sections of the Act Part 2 – Additional Learning Needs Additional learning provision for detained persons (sections 39 – 45)
101.Section 39 provides the definitions for these sections, sections 40 – 43 set out duties on local authorities relating to “detained persons” and section 44 deals with the application of duties in the Act to both detained persons and those detained otherwise than in relevant youth accommodation in Wales or England. Section 45 contains a regulation power to apply particular functions with or without modification in respect of children or young persons subject to a detention order and detained in a hospital under Part 3 of the Mental Health Act 1983.
102.The application of duties in the Act to children or young people who are subject to a detention order depends upon where they are detained. If the person is a “detained person”, that is detained in relevant youth accommodation in Wales or England (for example, in a secure college), then various duties on governing bodies and local authorities cease to apply but the duties set out in sections 40 to 43 apply instead. These duties are similar to other duties in the Act, but adapted in light of the detention situation. For example, only local authorities are responsible for ALN matters (not governing bodies) during the detained person’s detention and their duty is to arrange appropriate ALP, rather than secure the ALP set out in the IDP. This takes account of the possibility that the local authority might not be able to secure the particular ALP because the person is detained.
103.If a child or young person subject to a detention order is detained in other accommodation (for example in a prison), then various duties on governing bodies and local authorities do not apply during detention in such accommodation (see section 562 of the 1996 Act and section 44(3)-(7)). This is because education in relevant youth accommodation is fundamentally different to that in prisons (for example, it is compulsory in the former, but not in the latter).