Education Act 1996, section 312

Meaning of “special educational needs” and “special educational provision” etc

Part IV Special educational needs

(1) A child [F420 in the area of a local authority in Wales F420] has “special educational needs” for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.

(2) Subject to [F421 subsections (3) and (3A) F421] a child [F422 in the area of a local authority in Wales F422] has a “learning difficulty” for the purposes of this Act if—

(a)he has a significantly greater difficulty in learning than the majority of children of his age,

(b)he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the [F6 local authorityF6] , or

(c)he is under [F423 compulsory school ageF423] and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when of F424. . . that age.

(3)A child is not to be taken as having a learning difficulty solely because the language (or form of the language) in which he is, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his home.

[F425 (3A)Subsection (2) does not apply—

(a)for the purposes of sections F426... , 15A [F427 and 15BF427] , or

(b)for the purposes of sections 18A and 562H (except for the purpose of [F428 a local authority in WalesF428] determining, for the purposes of those sections, whether a child has special educational needs).F425]

(4) In this Act “special educational provision” means—

(a)in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the [F6 local authorityF6] (other than special schools) F429. . ., and

(b)in relation to a child under that age, educational provision of any kind.

(5)In this Part—

  • “child” includes any person who has not attained the age of 19 and is a registered pupil at a school;

  • [F430 “maintained school” means any community, foundation or voluntary school or any community or foundation special school not established in a hospital. F430]

Definitions used in section 312 9

child

“child” means a person who is not over compulsory school age;

Defined in s.579(1) · see it in the full Act
in the area

(3C) The Welsh Ministers may make further provision by regulations about the meaning of references in this Act to a person who is “in the area” of a local authority in Wales.

Defined in s.579(3C) · see it in the full Act

(3B) References in this Act to a person who is “in the area” of a local authority in Wales do not include a person who is wholly or mainly resident in the area of a local authority in England or who would be wholly or mainly resident in the area of a local authority in England were it not for provision secured for the person under Part 3 of the Children and Families Act 2014 .

Defined in s.579(3B) · see it in the full Act

(3A) References in this Act to a person who is “in the area” of a local authority in England do not include a person who is wholly or mainly resident in the area of a local authority in Wales or who would be wholly or mainly resident in the area of a local authority in Wales were it not for provision secured for the person under Part 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 .

Defined in s.579(3A) · see it in the full Act
local authority in Wales

“local authority in Wales” means—

(a)

a county council in Wales; and

(b)

a county borough council;

Defined in s.579(1) · see it in the full Act
special educational provision

“special educational provision”—

(a)

in relation to a person in the area of a local authority in England, has the meaning given by section 21(1) and (2) of the Children and Families Act 2014;

(b)

in relation to a child in the area of a local authority in Wales, has the meaning given by section 312(4);

Defined in s.579(1) · see it in the full Act
disability

(4) “Disabled child” means a child who has a disability for the purposes of the Equality Act 2010 , and “disability” is to be construed accordingly.

Defined in Sch.35B para.15(4) · see it in the full Act
school

(1) In this Act (subject to subsections (1A) to (1C) ) “school” means an educational institution which is outside the further education sector and the wider higher education sector and is an institution for providing—

(a)primary education,

(b)secondary education, or

(c)both primary and secondary education,

Defined in s.4(1) · see it in the full Act
local authority

“local authority” means—

(a)

a local authority in England;

(b)

a local authority in Wales;

Defined in s.579(1) · see it in the full Act
special educational needs

“special educational needs”—

(a)

in relation to a child or person over compulsory school age but under 25 in the area of a local authority in England, has the meaning given by section 20(1) of the Children and Families Act 2014;

(b)

in relation to a child in the area of a local authority in Wales, has the meaning given by section 312;

Defined in s.579(1) · see it in the full Act
registered pupil

“registered pupil”, in relation to a school, means a person registered as a pupil at the school in the register kept under this section; and

Defined in s.434(5) · see it in the full Act

Cases considering section 312 28

Essex County Council v Williams

[2011] EWCA Civ 1315 · 15 November 2011Interprets

The judgment interprets section 312(5) as imposing an exhaustive upper age limit of 19 for the Part IV meaning of “child”, while treating the registered-pupil criterion as non-exhaustive (see paras [19]; [36]; [43]).

RO, R (on the application of) v East Riding of Yorkshire Council & Anor

[2011] EWCA Civ 196 · 2 March 2011Defines

The court used section 312 to define special educational needs by reference to learning difficulty or disability affecting access to ordinary educational facilities. (see para [82])

Hill, R (on the application of) v Bedfordshire County Council

[2008] EWCA Civ 661 · 16 June 2008Interprets

Interprets the definition of “child” as non-exhaustive for Part IV purposes. A person need not be a registered pupil at a school to remain within the statutory category, supporting the conclusion that paragraph 11 procedures could apply. (see paras [8]; [103]-[109])

8 more judgments, and what each says about section 312, are in the case-law panel in the full Act.

Amendments and notes

12 notes from legislation.gov.uk

Amendments

  1. F420Words in s. 312(1) inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 11(2); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505) this amendment is subject to savings and/or transitional provisions, see the commentary.
  2. F421Words in s. 312(2) substituted (1.9.2010) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), s. 269(4), Sch. 2 para. 6(2); S.I. 2010/303, art. 6, Sch. 5
  3. F422Words in s. 312(2) inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 11(2); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505) this amendment is subject to savings and/or transitional provisions, see the commentary.
  4. F6Words in Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), Sch. 2 para. 7(2) (with Sch. 2 para. 7(4)(5))
  5. F423Words in s. 312(2)(c) substituted (1.8.1998) by 1997 c. 44, s. 57(1), Sch. 7 para. 23(a); S.I. 1998/386, art. 2, Sch. 1 Pt. III
  6. F424Words in s. 312(2)(c) repealed (1.8.1998) by 1997 c. 44, s. 57(1)(4), Sch. 7 para. 23(b), Sch. 8; S.I. 1998/386, art. 2, Sch. 1 Pt. III
  7. F425S. 312(3A) inserted (1.9.2010) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), s. 269(4), Sch. 2 para. 6(3); S.I. 2010/303, art. 6, Sch. 5
  8. F426Word in s. 312(3A)(a) omitted (1.9.2014) by virtue of Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 11(3)(a)(i); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505) this amendment is subject to savings and/or transitional provisions, see the commentary.
  9. F427Words in s. 312(3A)(a) substituted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 11(3)(a)(ii); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505) this amendment is subject to savings and/or transitional provisions, see the commentary.
  10. F428Words in s. 312(3A)(b) substituted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 11(3)(b); S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505) this amendment is subject to savings and/or transitional provisions, see the commentary.
  11. F429Words in s. 312(4)(a) repealed (1.9.1999) by 1998 c. 31, s. 140(1)(3), Sch. 30 para. 71(a), Sch. 31 (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1
  12. F430Words in s. 312(5) substituted (1.9.1999) by 1998 c. 31, s. 140(1), Sch. 30 para. 71(b) (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1