Education Act 1996, section 348

Provision of special education at non-maintained schools —Wales

Part IV Special educational needs

(1)This section applies where—

(a)special educational provision in respect of a child with special educational needs is made at a school which is not a maintained school,

[F655 (aa)the child is in the area of a local authority in Wales,F655] and

(b)either the name of the school is specified in a statement in respect of the child under section 324 or the [F6local authorityF6] are satisfied—

(i)that his interests require the necessary special educational provision to be made for him at a school which is not a maintained school, and

(ii)that it is appropriate for the child to be provided with education at the particular school.

(2)Where this section applies, the [F6local authorityF6] shall pay the whole of the fees payable in respect of the education provided for the child at the school, and if—

(a)board and lodging are provided for him at the school, and

(b)the authority are satisfied that the necessary special educational provision cannot be provided for him at the school unless the board and lodging are also provided,

the authority shall pay the whole of the fees payable in respect of the board and lodging.

F656 (3) In this section “maintained school” means a school maintained by a [F6 local authority F6] .

Definitions used in section 348 8

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
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
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
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
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
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
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

Cases considering section 348 7

Slough Borough Council v Special Educational Needs & Disability Tribunal & Ors

[2010] EWCA Civ 668 · 15 June 2010Interprets

Section 348 applies where a non-maintained school is named in or required by a statement. The court identified, but did not decide, whether the statutory fees are the ordinary fee or the reduced fee actually sought where voluntary parental support is involved. (see paras [15]-[24]) Section 348(2) imposes a duty to pay the whole fees payable for education at a named non-maintained school and prevents the authority from requiring parents to contribute. The court left open whether voluntary funding that reduces the fee affects the statutory comparison. (see paras [15]-[20]; [22]-[24])

Richardson v Solihull Metropolitan Borough Council

[1998] EWCA Civ 3535 · 12 February 1998Limits

Applied in explaining when provision at a non-maintained school falls within the fee-payment scheme, including where the school’s name is specified in a statement (see pp. 42-43). Applied as part of the conditions for the authority’s liability for fees where the child’s interests require provision at a non-maintained school (see p. 43). Applied as requiring the authority to be satisfied that provision at the particular non-maintained school is appropriate. The provision did not impose a duty to name that school (see p. 43). Referred to as imposing payment obligations where section 348 applies. It supported the parents’ interest in naming a non-maintained school but did not create a naming duty (see p. 43). Referred to for the statutory meaning of maintained school in the fee-payment provisions. It was not determinative of the appeals (see p. 43).

Slough Borough Council v Special Educational Needs and Disability Tribunal & Ors

[2009] EWHC 1091 (QB) · 8 September 2009Interprets

The conditions prescribed in subsection (1) identify when the fee-payment obligation in section 348 applies. The court treated those conditions as met in the present case. Where section 348 applies, the local education authority must pay the whole of the fees payable for the child’s education at the school. The provision prohibits a joint funding arrangement between the authority and parents and prevails over the general principle in section 9.

What each judgment says about section 348 is in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F654Word in s. 348 title inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 38(3); 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. F655S. 348(1)(aa) inserted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 38(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.
  3. 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))
  4. F656S. 348(3) substituted (1.9.1999) for s. 348(3)(a)-(c) by 1998 c. 31, s. 140(1), Sch. 30 para.84 (with ss. 138(9), 144(6))