Education Act 1996, section 316A

Education otherwise than in mainstream schools

Part IV Special educational needs

(1)Section 316 does not prevent a child from being educated in—

(a)an independent school which is not a mainstream school, or

(b)a school approved under section 342,

if the cost is met otherwise than by a [F6 local authorityF6] .

(2)Section 316(2) does not require a child to be educated in a mainstream school during any period in which—

(a)he is admitted to a special school for the purposes of an assessment under section 323 of his educational needs and his admission to that school is with the agreement of—

(i)the [F6 local authorityF6] ,

[F454 (ii)the governing body of the school or, if the school is in England, its head teacher,F454]

(iii)his parent, and

(iv)any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26;

(b)he remains admitted to a special school, in prescribed circumstances, following an assessment under section 323 at that school;

(c)he is admitted to a special school, following a change in his circumstances, with the agreement of—

(i)the [F6 local authorityF6] ,

[F455 (ii)the governing body of the school or, if the school is in England, its head teacher,F455]

(iii)his parent;

(d)he is admitted to a community or foundation special school which is established in a hospital.

(3)Section 316 does not affect the operation of—

(a)section 348, or

(b)paragraph 3 of Schedule 27.

(4)If a [F6 local authorityF6] decide—

(a)to make a statement for a child under section 324, but

(b)not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,

they shall, in making the statement, comply with section 316(3).

(5)A [F6 local authorityF6] may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility.

(6)An authority in relation to a particular mainstream school may rely on the exception in section 316(3)(b) only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility.

(7)The exception in section 316(3)(b) does not permit a governing body to fail to comply with the duty imposed by section 324(5)(b).

(8)An authority must have regard to guidance about section 316 and this section issued [F456 by the Welsh MinistersF456] —

F457(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F458(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)That guidance shall, in particular, relate to steps which may, or may not, be regarded as reasonable for the purposes of subsections (5) and (6).

(10) “Prescribed” F459 ... means prescribed in regulations made by the [F460 Welsh Ministers F460] .

(11) “Authority”—

(a)in relation to a maintained school [F461 or maintained nursery schoolF461] , means each of the following—

(i)the [F6 local authorityF6] ,

(ii)the school’s governing body, and

(b)in relation to F462... a pupil referral unit, means the [F6 local authorityF6] .F453]

Definitions used in section 316A 12

child

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

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

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

Defined in s.312(5) · see it in the full Act
independent school

(1) In this Act “independent school” means any school at which full-time education is provided for—

(a)five or more pupils of compulsory school age, or

(b)at least one pupil of that age for whom an EHC plan is maintained or for whom a statement is maintained under section 324 or an individual development plan is maintained , or who is looked after by a local authority (within the meaning of section 22 of the Children Act 1989 or section 74 of the Social Services and Well-being (Wales) Act 2014 ),

Defined in s.463(1) · see it in the full Act
mainstream school

(4) In this section and section 316A “mainstream school” means any school other than—

(a)a special school, or

(b)an independent school which is not—

(i)a city technology college,

(ii)a city college for the technology of the arts, or

(iii) an Academy .

Defined in s.316(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
head teacher

“head teacher” includes acting head teacher;

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

(1) In this Act, unless the context otherwise requires, “parent”, in relation to a child or young person, includes any person—

(a)who is not a parent of his but who has parental responsibility for him, or

(b)who has care of him,

Defined in s.576(1) · see it in the full Act
regulations

“regulations” ... means regulations made by the Secretary of State , except where otherwise stated or where the function of making the regulations has been transferred to the Welsh Ministers in relation to Wales ;

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

(2) In sections 436C, 436E, 436F, 436I and paragraph 5 of Schedule 31A “prescribed” means—

(a)prescribed by regulations made by the Secretary of State in relation to England, and

(b)prescribed by regulations made by the Welsh Ministers in relation to Wales.

Defined in s.436S(2) · see it in the full Act

“prescribed” (except in Chapter 5A) means prescribed by regulations;

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

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

Defined in s.312(5) · see it in the full Act
maintained nursery school

“maintained nursery school” has the meaning given by section 22(9) of the School Standards and Framework Act 1998 ;

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

(3) The definition of “pupil” in subsections (1) and (1A) also apply (unless the context otherwise requires) for the purposes of any instrument made or having effect as if made under the Education Acts.

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

(1) In this Act “pupil” means a person for whom education is being provided at a school, other than—

(a)a person who has attained the age of 19 for whom further education is being provided, or

(b)a person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided.

Defined in s.3(1) · see it in the full Act

Cases considering section 316A 5

MH, R (on the application of) v Special Educational Needs & Disability Tribunal & Anor

[2004] EWCA Civ 770 · 23 June 2004Limits

Provides the provisions governing education otherwise than in mainstream schools and qualifying the mainstream-school duty. The court construed it together with section 316 and Schedule 27 (see paras [19]-[21], [68]-[81]). Provides that section 316 does not affect specified provisions, including paragraph 3 of Schedule 27. It supports the court’s conclusion that the two statutory processes are distinct (see paras [21], [68]-[71]). Preserves the operation of paragraph 3 of Schedule 27 alongside section 316. The court treated this as showing that the parental-preference process must be addressed separately (see paras [21], [68]-[71]). Links the two processes. Where the authority makes a statement but lawfully rejects the parent’s preferred school, it must comply with section 316(3) in making the statement. The section 316 process therefore begins after the paragraph 3 process is exhausted (see paras [21], [71]). Requires the authority, in relation to mainstream schools taken as a whole, to show that no reasonable steps could prevent incompatibility before relying on section 316(3)(b) (see paras [21], [42], [70]-[71]). Requires a demonstration, for a particular mainstream school, that neither the authority nor another authority could take reasonable steps to prevent incompatibility (see paras [21], [42], [70]). Provides that the section 316(3)(b) exception does not permit a governing body to fail to comply with the duty in section 324(5)(b). It was included in the statutory framework (see para [21]). Requires the authority to have regard to the Secretary of State’s guidance. The guidance cannot alter the statute, but remains relevant to the practical exercise of the power to name a mainstream school (see paras [24]-[29], [73], [76]).

Slough Borough Council v C & Anor

[2004] EWHC 1759 (Admin) · 22 July 2004Interprets

Uses section 316A(3) as part of the statutory comparison between the paragraph 3 and paragraph 8 procedures. The absence of an equivalent express provision applying section 316 to paragraph 8 supports the conclusion that section 316 does not govern paragraph 8 determinations (see paras [8]; [28](vii)). Interprets section 316A(4) as linking the section 316 process to the making of a statement after a paragraph 3 preference has been rejected. Its wording supports the conclusion that section 316 does not apply to a paragraph 8 substitution request (see paras [8]; [9]; [28](vii)).

Mulla v Hackney Learning Trust

[2014] EWCA Civ 397 · 2 April 2014

Section 316A(3)(b) is used to recognise the distinction between paragraph 3 and paragraph 8 of Schedule 27. It supports the contextual analysis but does not determine the appeal. (see para [20])

What each judgment says about section 316A is in the case-law panel in the full Act.

Amendments and notes

14 notes from legislation.gov.uk

Amendments

  1. F453Ss. 316, 316A substituted (15.6.2001 for certain purposes and otherwise 1.1.2002 for E., 21.1.2002 for certain purposes and otherwise 1.4.2002 for W.) for s. 316 by 2001 c. 10, s. 1 (with s. 43(13)); S.I. 2001/2217, arts. 4, 5, Sch. Pts. I, II (as amended by S.I. 2001/2614, art. 4); S.I. 2002/74, arts. 4, 5, Sch. Pts. I, II
  2. 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))
  3. F454S. 316A(2)(a)(ii) substituted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(2)(a); 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. F455S. 316A(2)(c)(ii) substituted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(2)(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.
  5. F456Words in s. 316A(8) inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(3)(a); 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.
  6. F457S. 316A(8)(a) omitted (1.9.2014) by virtue of Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(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.
  7. F458S. 316A(8)(b) omitted (1.9.2014) by virtue of Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(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.
  8. F459Words in s. 316A(10) omitted (1.9.2014) by virtue of Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(4)(a); 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. F460Words in s. 316A(10) substituted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 14(4)(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.
  10. F461Words in s. 316A(11)(a) inserted (1.9.2003 for E., 31.10.2005 for W.) by Education Act 2002 (c. 32), s. 216(4), Sch. 21 para. 38(a) (with ss. 210(8), 214(4)); S.I. 2003/1667, art. 4; S.I. 2005/2910, art. 4, Sch.
  11. F462Words in s. 316A(11)(b) repealed (1.9.2003 for E., 31.10.2005 for W.) by Education Act 2002 (c. 32), s. 216(4), Sch. 21 para. 38(b), Sch. 22 Pt. 3 (with ss. 210(8), 214(4)); S.I. 2003/1667, art. 4; S.I. 2005/2910, art. 4, Sch.

Modifications

  1. C97S. 316A(2)(c) amendment to earlier affecting provision S.I. 2007/2599, art. 8 (30.9.2010) by The New Woodlands School (Amendment) Order 2010 (S.I. 2010/2196), arts. 1, 2
  2. C98S. 316A(2) modified (17.12.2007) by The Harbour School Order 2007 (S.I. 2007/3205), arts. 1, 3(a), 5, 6, 10 (as amended (15.12.2010) by The Harbour School (Amendment) Order 2010 (S.I. 2010/2804), arts. 1, 2)
  3. C99S. 316A(2)(c) modified (temp.) (1.10.2007) by The New Woodlands School Order 2007 (S.I. 2007/2599), arts. 1, 3(a) (with arts. 4, 8)