Education Act 1996, section 323

Assessment of educational needs

Part IV Special educational needs

(1)Where a [F6 local authorityF6] are of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2), they shall serve a notice on the child’s parent informing him—

(a)that they [F510 are considering whetherF510] to make an assessment of the child’s educational needs,

(b)of the procedure to be followed in making the assessment,

(c)of the name of the officer of the authority from whom further information may be obtained, and

(d)of the parent’s right to make representations, and submit written evidence, to the authority within such period (which must not be less than 29 days beginning with the date on which the notice is served) as may be specified in the notice.

(2)A child falls within this subsection if—

(a)he has special educational needs, and

(b)it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

(3)Where—

(a)a [F6 local authorityF6] have served a notice under subsection (1) and the period specified in the notice in accordance with subsection (1)(d) has expired, and

(b)the authority remain of the opinion, after taking into account any representations made and any evidence submitted to them in response to the notice, that the child falls, or probably falls, within subsection (2),

they shall make an assessment of his educational needs.

(4)Where a [F6 local authorityF6] decide to make an assessment under this section, they shall give notice in writing to the child’s parent of that decision and of their reasons for making it.

(5)Schedule 26 has effect in relation to the making of assessments under this section.

(6)Where, at any time after serving a notice under subsection (1), a [F6 local authorityF6] decide not to assess the educational needs of the child concerned they shall give notice in writing to the child’s parent of their decision.

Definitions used in section 323 5

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
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
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
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
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

(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 local authority (other than special schools) . . ., and

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

Defined in s.312(4) · see it in the full Act

Cases considering section 323 33

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

[2011] EWCA Civ 196 · 2 March 2011Defines

The provision was identified as imposing a duty on the local education authority to assess a child’s special educational needs in the specified circumstances. (see paras [20]; [83]) The court noted the authority’s duty to arrange the special educational provision specified in a maintained statement, subject to the statutory qualification concerning parental arrangements. (see para [83])

TM v London Borough of Hounslow

[2009] EWCA Civ 859 · 11 June 2009Defines

Section 323 forms part of the statutory assessment sequence. Where its preconditions are met and the authority’s opinion remains unchanged after representations, an assessment of educational needs must be made. (see paras [19]; [23]) The preconditions are that the child has special educational needs and that the authority must determine the special educational provision called for by the child’s learning difficulty. (see para [19]) After the notice period has expired and representations or evidence have been considered, the authority must assess the child’s educational needs if it remains of the relevant opinion. (see paras [19]; [23])

K v The School & Anor

[2007] EWCA Civ 165 · 6 March 2007

Identifies the local education authority’s assessment function. The judgment treated assessment and revision of the statement as the route for obtaining additional provision (see paras [18]; [51]; [56]–[58]).

13 more judgments, and what each says about section 323, are in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. 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))
  2. F510Words in s. 323(1)(a) substituted (1.1.2002 (E.) and 1.4.2002 (W.)) by 2001 c. 10, s. 42(1), Sch. 8 para. 11(1) (with s. 43(13)); S.I. 2001/2217, art. 5, Sch. Pt. II (as amended by S.I. 2001/2614, art. 4); S.I. 2002/74, art. 5, Sch. Pt. II