Education Act 1996, section 328

Reviews of educational needs

Part IV Special educational needs

(1)Regulations may prescribe the frequency with which assessments under section 323 are to be repeated in respect of children for whom statements are maintained under section 324.

(2)Where—

(a)the parent of a child for whom a statement is maintained under section 324 asks the [F6 local authorityF6] to arrange for an assessment to be made in respect of the child under section 323,

(b)no such assessment has been made within the period of six months ending with the date on which the request is made, and

(c)it is necessary for the authority to make a further assessment under section 323,

the authority shall comply with the request.

(3)If in any case where subsection (2)(a) and (b) applies the authority determine not to comply with the request—

(a)they shall give [F532 notice in writing of that factF532] to the child’s parent, and

(b)the parent may appeal to the Tribunal against the determination.

[F533 (3A)A notice under subsection (3)(a) must inform the parent of the right of appeal under subsection (3)(b) and contain such other information as may be prescribed.

(3B)Regulations may provide that where a [F6 local authorityF6] are under a duty under this section to serve any notice, the duty must be performed within the prescribed period.F533]

(4)On an appeal under subsection (3) the Tribunal may—

(a)dismiss the appeal, or

(b)order the authority to arrange for an assessment to be made in respect of the child under section 323.

(5)A statement under section 324 shall be reviewed by the [F6 local authorityF6] —

(a)on the making of an assessment in respect of the child concerned under section 323, and

[F534 (aa)where the child concerned—

(i)has been subject to a detention order, and

(ii)immediately before release was detained in relevant youth accommodation,

on the child's release from detention,F534]

(b)in any event, within the period of 12 months beginning with the making of the statement or, as the case may be, with the previous review.

(6)Regulations may make provision—

(a)as to the manner in which reviews of such statements are to be conducted,

(b)as to the participation in such reviews of such persons as may be prescribed, and

(c)in connection with such other matters relating to such reviews as the Secretary of State considers appropriate.

Definitions used in section 328 6

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
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
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
the Tribunal

(5) In this Part ..., “the Tribunal”, in relation to an appeal, means the Special Educational Needs Tribunal for Wales.

Defined in s.313(5) · 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

Cases considering section 328 14

Essex CC v DH

[2016] UKUT 463 (AAC) · 17 October 2016

The court treated the annual review as a periodic review within the statutory machinery for maintenance and amendment of a statement. Its effect had to be assessed together with Schedule 27 and section 326 (see paras [3]; [21]; [24]).

JG & Anor v Kent County Council & Ors

[2016] EWHC 1102 (Admin) · 13 May 2016

The court noted the duty to review a statement at least annually and treated the serious change in schooling circumstances as requiring consideration of an emergency or interim review under the statutory code (see paras [115], [162]).

TW, R (on the application of) v Kent County Council

[2009] EWHC 1790 (Admin) · 17 July 2009Defines

The court treats the reassessment procedure and associated tribunal appeal as a suitable alternative remedy which ordinarily provides a complete answer to judicial review of the school placement decision. (see paras [60], [65]-[74]) The court notes the statutory requirement for statements to be reviewed at least annually. (see para [6]) The court identifies section 328(6) as the power under which regulations govern the conduct of statement reviews. (see para [7])

What each judgment says about section 328 is in the case-law panel in the full Act.

Amendments and notes

4 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. F532Words in s. 328(3)(a) substituted (11.5.2001 for certain purposes, 1.1.2002 otherwise for E. and 1.4.2002 otherwise for W.) by 2001 c. 10, ss. 42(1), 43(4)(e), Sch. 8 para 7(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
  3. F533S. 328(3A)(3B) inserted (11.5.2001 for certain purposes, 1.1.2002 otherwise for E. and 1.4.2002 otherwise for W.) by 2001 c. 10, ss. 42(1), 43(4)(e), Sch. 8 para. 7(2) (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
  4. F534S. 328(5)(aa) inserted (1.9.2010 for E., 1.4.2011 for W.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 52(3), 269(3)(4); S.I. 2010/303, art. 6, Sch. 5; S.I. 2011/829, art. 2(d)