DES Circular 8/81 (1981)

This circular explained, for local education authorities (LEAs), the provisions of the 1981 Education Act.

The text of DES Circular 8/81 was prepared by Derek Gillard and uploaded on 10 March 2021.


Circular 8/81 (1981)
Education Act 1981

Department of Education and Science
London: 1981
Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen's Printer for Scotland.


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Circular No 8/81
7 December 1981

DEPARTMENT OF EDUCATION AND SCIENCE, ELIZABETH HOUSE
YORK ROAD, LONDON SE1 7PH

EDUCATION ACT 1981

INTRODUCTION

1. This Circular explains* the effect of the provisions of the Education Act 1981. The Act repeals the provisions of the Education Acts relating to special educational treatment and establishes a new framework for the education of children requiring special educational provision whether in special or ordinary schools. As announced during the debate in the House of Lords on 19 October 1981, it is the Government's hope that the Act will be in force by the early part of the academic year 1982-83. Section 14 (Discontinuance of maintained special schools) is to come into force on 5 January 1982. Consultations are in progress about the timetable for implementing the other provisions of the Act.

DEFINITION OF SPECIAL EDUCATIONAL NEEDS

2. Section 1 of the Act gives effect to the recommendation of the Warnock Committee† that the 1944 Act system of special educational treatment for pupils suffering from a disability of mind or body, who were formally classified in specified categories of handicap, should be replaced by a concept of special educational provision based on the special educational needs of individual children.

3. "Special educational needs" may arise from a variety of causes, and the concept embraces a wider group of pupils than those at present formally ascertained as handicapped (approximately 2% of the school population). The Warnock Committee estimated as an indication of scale that nationally 20% of pupils might have special educational needs at some time during their school careers. The proportion of children with such needs would however vary from area to area and from school to school.

*A Circular cannot be regarded as providing an authoritative legal interpretation of any of the provisions of the Act as this is exclusively a function of the Courts.

†"Special Educational Needs" Cmnd 7212, HMSO, 1978.


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4. Section 1 establishes that a child has special educational needs if he has a learning difficulty which requires special educational provision to be made to meet those needs. "Learning difficulty" is defined to include not only physical and mental disabilities, but any kind of learning difficulty experienced by a child provided that it is significantly greater than that of the majority of children of the same age. The definition does not refer to specific causal factors except to exclude a learning difficulty which arises solely because the language of instruction is different from the language of the child's home. Although children from linguistic minorities may experience difficulties, which local education authorities (LEAs) will continue to be under a duty to meet under the provisions of Section 8 of the 1944 Act, they will not fall to be considered under the provisions of this Act unless they also suffer from learning difficulties not arising from problems with the language of instruction.

PROVISION OF SPECIAL EDUCATION

5. Section 2 of the Act amends existing duties and introduces new ones in consequence of the new and wider framework of special education and the wish to reflect in law the proper responsibilities of governing bodies and teachers towards pupils with special educational needs, the majority of whom will continue to be educated in ordinary schools. It also establishes the principle that all children for whom the LEA decide to determine the special educational provision to be made (and accordingly to maintain a statement under section 7 of the Act) are to be educated in ordinary schools, so far as is reasonably practicable, and are to associate in the activities of the school with other children. This principle is subject to account having been taken of the views of the parents; the ability of the school to meet the child's special educational needs; the provision of efficient education for other children in the school and the efficient use of resources by the LEA. These provisions supersede section 10 of the Education Act 1976, which was never brought into force, and is now repealed.

6. The Secretary of State hopes that, as well as reviewing their arrangements for special educational provision as required by section 2(4), LEAs will exercise close oversight of arrangements made by the governors of county and voluntary schools for identifying and providing for individual pupils' special educational needs in ordinary schools. In particular the Secretary of State hopes that LEAs will encourage the early appointment of a responsible person in such schools in advance of the implementation of section 2(5) of the Act.

7. Under the provisions of section 56 of the Education Act 1944, LEAs have the power to provide education otherwise than at school in the narrowly defined situation when by reason of any extraordinary circumstances a child is unable to attend a suitable school. This power has been used to provide education for handicapped pupils by means of tuition at home or in hospital. As it is doubtful


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whether such children can in all cases be said to be unable to receive education in school by reason of "extraordinary circumstances", section 3 of the Act contains parallel powers to section 56 expressed in appropriate terms to enable LEAs to make special educational provision to meet individual special educational needs in places other than schools, whether full-time or by a mixture of education in school and out of school. When exercising their powers under section 3, authorities are reminded of the need to consult the child's parents. Section 56 remains in force.

8. No provision is made in the Act to enable LEAs to provide the services of teachers to Adult Training Centres (ATCs) since adequate powers already exist in current legislation for this purpose. Some LEAs may have made provision for this in their schemes of further education. For those that have not done so, local social services authorities have powers to make educational provision in ATCs under the National Health Service Act 1977. In many instances the LEA and social services authority will be the same authority. Where they are not, the Local Authorities (Goods and Services) Act 1970 in combination with the National Health Service Act 1977 enables the LEA to make teachers available to the ATC. The Government would wish to encourage education and social services departments to consult closely over the educational provision in ATCs and it is important that both parties are aware of their powers in respect of the appointment of teachers.

IDENTIFICATION OF CHILDREN WITH SPECIAL EDUCATIONAL NEEDS

9. The majority of children with special educational needs as defined in the Act will continue to be educated within the resources of their ordinary school and will not require the LEA to determine how their needs are best met. However, for a small percentage of children who have severe or complex learning difficulties it will be necessary for authorities themselves to determine the appropriate provision to be made in respect of individual special educational needs. The deciding factors here are likely to vary from area to area depending on the range of provision normally available in an authority's schools. As a general rule the Secretary of State will expect LEAs to afford children the protection of.a statement of their special educational needs in all circumstances where extra resources in terms of staffing or equipment would be required to cater for those needs in an ordinary school. It is expected that the number of such children will correspond approximately to those children now ascertained as handicapped under section 34 of the 1944 Act.

10. Section 4 of the Act places LEAs under a duty to endeavour to identify children who have special educational needs which call for the authority to determine the special educational provision to be made. The duty covers any child in their area who is a registered pupil at a maintained school or for whom the LEA are providing education at a non-maintained or independent school, or


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who has been brought to their attention as possibly having special educational needs. It extends to all children between the ages of 2 and 16 and registered pupils at schools up to their 19th birthday.

ASSESSMENT OF SPECIAL EDUCATIONAL NEEDS

11. Section 5 of the Act together with Part I of Schedule 1 lays down rules for the conduct by LEAs of assessments of individual children necessary for them to determine the special educational provision to be made. The section requires the LEA to notify the parents of such children of their intention to make an assessment. The parents have the right to be given information about the assessment procedure; to make representations within a given period of not less than 29 days to the authority; and to be notified of the authority's decision whether to proceed with the assessment, and following assessment whether to make a statement under section 7 (see para 15-18). The authority are also required to provide parents with the name of an officer from whom they may obtain further information. Parents are also to be notified of their right of appeal to the Secretary of State if the LEA decide after assessment not to determine the special educational provision to be made for their child. The section thus provides for the closer involvement of parents in assessment procedures as recommended by the Warnock Committee.

12. Under the provisions of Part I of Schedule 1 of the Act the Secretary of State is given powers and duties to make regulations in respect of assessments required under the provisions of section 5 and in respect of statements which a LEA maintain under the provisions of section 7. The Secretary of State intends to consult interested parties on the content of these regulations. The Schedule also enables LEAs to require the attendance of children at examinations to enable them to undertake their duties under section 5.

13. The Secretary of State attaches particular importance to the emphasis in the legislation on the close involvement of parents throughout the process of assessment and hopes that LEAs will ensure that parents are made aware of their rights under the Act. Although the Act lays down formal procedures for notifying parents it should be possible for LEAs to satisfy these requirements while maintaining a sympathetic approach and developing a co-operative relationship with parents which will ultimately be in the best interest of the child concerned. A separate Circular will be issued in due course offering guidance on the conduct of all forms of assessment, the regulations on multi-professional assessment and the form and content of statements, and appeals under section 8.


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ASSESSMENT OF CHILDREN UNDER TWO YEARS

14. Section 6 of the Act empowers LEAs to assess the special educational needs of children under the age of two, with the consent of the parents, and requires the LEA to make an assessment if the parents ask for it. LEAs are also empowered to make and maintain a statement of the child's special educational needs as revealed by assessment. The formal procedures for assessment as set out in section 5 are not necessary for children under two as no assessment is possible without parental consent. For very young children it may not be possible for LEAs to complete and maintain a full statement of what will often be emerging educational needs, though it is evident to all concerned that the child will experience learning difficulties. Section 6 therefore allows LEAs to make and maintain statements for children under two in whatever manner they consider appropriate: section 7 does not apply to them.

STATEMENT OF SPECIAL EDUCATIONAL NEEDS

15. Section 7 of the Act provides for the making of statements of special educational needs (referred to in the Warnock Report as "recording") after an assessment under section 5, and places LEAs under a duty to arrange special educational provision in accordance with the statement. If the LEA decide to make a statement, parents are to receive a draft of the proposed statement and at the same time should be informed of their right to make representations within a 15 day period and to ask for interviews. They have a right of interview with an officer of the LEA and subsequently, if they wish, with any person who gave advice as part of their child's assessment, or with some other person qualified to discuss such advice. The Secretary of State regards the parents' right of interview with those concerned in assessment as a measure which will rarely need to be invoked if parents have been properly involved in the earlier stages of assessment. However where parents continue to have doubts about the appropriateness of the educational provision to be made for a child, the Secretary of State hopes that LEAs will arrange meetings as quickly as possible to enable parents to have their questions answered. If the professional concerned is not available then another appropriate person may take his place. When this occurs the appropriate person must be professionally competent to discuss that element of the assessment which is of concern to the parent. The Secretary of State hopes however that the professionals involved in assessment will do all they can to make themselves personally available.

16. The LEA must consider any representations made by the parents, and are empowered to make the statement as proposed, or with modifications, or not to make a statement. Statements made under section 7 must comply with Part II of Schedule 1 of the Act. Under Part II the Secretary of State will prescribe the form in which statements shall be made and the information to be contained in


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them, so that there will be uniformity of practice. The responsibility for the decision to make the statement is placed on the LEA.

17. The parents must be given a copy of the statement as made and notice of their right of appeal (para 18-20). They must also be given the name of a person to whom they may apply for information and advice about their child's special educational needs. The Secretary of State is empowered to make regulations governing the frequency of further assessments of children for whom statements are maintained.

APPEALS AGAINST SPECIAL EDUCATIONAL PROVISION

18. Section 8 of the Act provides for parental appeals to the local appeal committees established under section 7 of the 1980 Act against the special educational provision specified in a statement. (If the child is not the subject of a statement, the provisions of the 1980 Act apply.)

19. When hearing appeals under the 1980 Act an appeal committee will normally be faced with relatively simple school admission issues, the assumption being essentially that, unless a selective system is in operation, ordinary schools are suitable for all children in their age group. This is not the case in a dispute over special educational provision. Location will often be influenced not only by the availability of schools staffed and equipped to cater for particular handicaps but also by the availability of, for instance, health or social services and any of these may be determining factors as to the appropriate setting in which special educational needs are catered for. It is therefore likely that disputes between parents and LEAs will sometimes involve an appeal committee in examining a very wide variety of specialist advice, given the range of complex handicapping conditions from which children can suffer. The issue will differ greatly from the normal run of school admission cases. For this reason, after hearing an appeal from the parents of a child for whom a statement of special needs is maintained, an appeal committee will not be able to overrule a LEA if they disagree with their proposals. Instead they have a power to refer the case back to a LEA with their observations.

20. Where a case is referred back to a LEA, section 8 of the 1981 Act places them under a duty to reconsider the case in the light of the appeal committee's observations. If the parents are still not satisfied with the LEA's decision following such reconsideration, or if the appeal committee support the LEA, they will have a right of appeal to the Secretary of State who is empowered to confirm or amend the statement or to direct the local education authority to cease to maintain the statement.


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REQUESTS FOR ASSESSMENT

21. Section 9 imposes duties on LEAs to comply with requests from parents' for assessments. Section 9(1) applies to requests from parents of children for whom no statement is maintained by the authority. It requires the authority to comply with the request unless it is in their opinion unreasonable. The assessment need not, however, be an assessment under section 5 if the LEA are satisfied, as a result of examining the child, that his special educational needs can be met without the need for a statement. Section 9(2) applies to requests from the parents of children for whom statements are maintained for an assessment under section 5 where such an assessment has not been made within six months of the request. In these circumstances, the request is to be complied with unless the authority are satisfied that a section 5 assessment would be inappropriate.

22. An authority will only be able to refuse a request for an assessment under section 9(1) if it is a request that no parent acting reasonably would make and the Secretary of State will normally expect LEAs to comply with the request. Authorities will have more discretion to refuse a request to which section 9(2) applies; in such a case it may be that the parents' doubts can be resolved by a review of the provision which is being made rather than by a new assessment of his needs. Parents who feel aggrieved by a decision of a LEA not to make an assessment may appeal to the Secretary of State under the genera! appellate provisions of section 68 or 99 of the 1944 Act.

EARLY IDENTIFICATION OF SPECIAL EDUCATIONAL NEEDS

23. Section 10 of the Act is designed to facilitate the early discovery by LEAs of children with special educational needs. It places health authorities, as the statutory authorities most closely involved with babies and young children through their functions for care, treatment and surveillance, under a duty to inform the parents and the appropriate LEA when they form the opinion that a child under the age of 5 has, or is likely to have, special educational needs. The health authority is also required to afford the parents an opportunity to discuss their opinion before bringing the child to the attention of the LEA.

24. The provisions of section 10 apply to children from birth to the age of five. In practice, the age at which it appears that a child has, or probably has, special educational needs will vary, and health authorities will need to consider very carefully what is the best time to inform the parents, taking into account not only any uncertainties of prognosis but also the effect on the parents. The parents must always be informed before the LEA, but if the parent does not agree with the health authority or does not take up the offer of a discussion, LEAs will nevertheless be informed of the health authority's opinion.


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25. This section of the Act also requires health authorities to inform the parents of such babies and young children if they think that a voluntary organisation is likely to be able to give advice or assistance in connection with any special educational needs that their child may have. The Secretary of State for Social Services hopes that health authorities and voluntary organisations will increasingly develop co-operative links in support of both the handicapped child and his parents.

SPECIAL SCHOOLS AND INDEPENDENT SCHOOLS CATERING FOR PUPILS WITH SPECIAL NEEDS

26. Sections 11, 12 and 13 of the Act deal with the arrangements for maintained and non-maintained special schools and those independent schools which wish to cater for children for whom LEAs maintain statements under section 7 of this Act.

27. Section 11 re-enacts similar provisions to those in the 1944 Education Act in appropriate terms. It also lays down that LEAs may not place children with statements in an independent school unless either the school has been specifically approved by the Secretary of State for this purpose or he has authorised individual placements at the school. Such authorisation will usually only be granted in individual cases where a child with a statement will benefit from education in an ordinary independent school. The present exceptions procedures in respect of pupil placements at independent schools not previously recognised as efficient will be discontinued in due course. LEAs and appropriate independent schools will be notified in advance of new arrangements coming into force.

28. Section 12 empowers the Secretary of State to make regulations as to the requirements which must be met by maintained and non-maintained special schools as a condition of their approval and continued approval as special schools under section 9(5) of the Education Act 1944 as amended. The regulations may also include provision as to the withdrawal of approval as a special school and may impose requirements as to the arrangements in and organisation of any special school. Regulations made under the section must provide that so far as is possible, bearing in mind the severity of some pupils' difficulties, every pupil attending a special school will attend or be withdrawn from religious worship and religious instruction in accordance with the wishes of his parents.

29. Section 12 replaces similar provisions contained in section 33(3) of the 1944 Act. Under the provisions of the section, the Secretary of State intends to make regulations to replace those parts of the Handicapped Pupils and Special Schools Regulations 1959 which now contain his requirements for special schools in respect of the approval of premises, size and age range, and lay down


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rules for the organisation and conduct of special schools. In addition it is proposed that regulations will require individual non-maintained special schools to produce information on their facilities and curriculum and to make that information available to LEAs and parents upon request. The intention is to bring the non-maintained special schools broadly into line with maintained schools which must publish specific information about the provision they offer under the terms of Schedule 2 of the Education (School Information) Regulations 1981.

30. The Secretary of State proposes that the conditions of approval of a non-maintained special school shall include a requirement that satisfactory arrangements exist for the involvement of parents and teachers in the running of the school. (The governing bodies of maintained special schools are subject to the provisions of the 1980 Act.) Non-maintained special schools will be given a degree of flexibility in their arrangements for governing bodies in order to take account of the wide variations in size and circumstances and the limitations imposed by the nature of the school's constitution. However the arrangements made will require the approval of theSecretary of State.

31. Section 13 makes parallel provisions to those in section 12 in respect of the approval of independent schools (see paragraph 27 above).

32. Under existing law very few requirements are laid upon independent schools generally and there are no additional requirements where these schools cater for handicapped pupils. Section 13 provides the Secretary of State with the power to lay down requirements in regulations as to the approval of any independent school which wishes to accept LEA placements of children in respect of whom a statement is being maintained. It is the Secretary of State's intention that such schools will be required to meet similar standards in respect of premises, qualified staff, education and care to those required in maintained and non-maintained special schools. They will also be required, as a condition of approval, to publish information about their facilities.

THE CLOSURE OF MAINTAINED SPECIAL SCHOOLS

33. Section 14 of this Act introduces for the first time requirements as to the discontinuance of maintained special schools.

34. The purpose of the section is to ensure that the parents of pupils at maintained special schools, other interested LEAs and any other interested parties are given notice of a LEA's intention to close a special school and given the opportunity to raise objections. At the same time the Secretary of State is to be notified of a proposed closure and at a later date to be sent copies of any objections received by the LEA. He may then approve or reject the proposed


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closure or require that the closure takes place at a time different from that specified in the original notice of closure.

SCHOOL ATTENDANCE ORDERS

35. The school attendance order procedures for non-handicapped children were modified by section 10 of the Education Act 1980 because it was necessary to link school attendance orders to the new arrangements under the choice of school provisions of that Act. School attendance order procedures for children ascertained as handicapped remained fundamentally unaffected by the 1980 Act.

36. Under existing law the school attendance order procedures for children in need of special educational treatment are linked to the issue and content of the medical certificate which specifies the disability of mind or body from which the child is suffering.

37. The new arrangements for the making and maintenance of statements of individual special educational needs under the provisions of section 7 necessitate a revision of the school attendance order procedures to establish a link between the special educational provision specified in the statement and the school to be named in the school attendance order. Section 15 of the Act establishes the necessary links between the content of the statement in respect of special educational provision and the school to be named in a school attendance order. No new issues of principle are contained in this section or in section 16 of the Act which deals with the amendment and revocation of school attendance orders.

OTHER SECTIONS OF THE LEGISLATION

38. Other sections of the legislation are of either a general or technical nature and do not require elaboration in a Circular. The attention of LEAs is however drawn to section 18 under which the Secretary of State may require the parent of any child to present the child for any kind of examination felt necessary to enable the Secretary of State to determine any issue arising from the provisions of this Act.

TRANSITIONAL PROVISIONS

39. Schedule 2 of the Act sets out certain transitional provisions which are designed to allow LEAs reasonable time within which to make statements for approximately 165,000 children who are currently receiving special educational treatment in England and Wales. Since it is common good practice among LEAs to assess children on a wider basis than that strictly required under the


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provisions of the Education Act 1944 (guidance advocating wider assessment was issued to LEAs in Circular 2/75), it is not proposed to require LEAs to assess this group of children under section 5 in advance of making statements for them. Children for whom a LEA are providing special educational treatment on the appointed day will be deemed to be the subject of statements under the new Act although they will not have gone formally through the assessment procedures. Authorities will not be required to produce statements of any sort about these children for 12 months after the Act comes into force. At or before the end of that 12 months a statement must be made but it need not be based on an assessment and it need not give details of the assessment of the child's needs. In other words, this statement must specify the provision to be made but there is no need to translate the old ascertainment into new words. On the other hand if an assessment has been carried out (eg at the parents' request) the statement will take the full form. Section 9 (requests for assessment) will apply as will review procedures (Schedule 1, paragraph 5) and it is the intention of the Secretary of State that such children will be covered under regulations which the Secretary of State is empowered to make under section 7(10), prescribing the frequency with which assessments are to be repeated in respect of children for whom statements are maintained.

40. In view of the existing provisions in the principal Act enabling parents to refer to the Secretary of State questions relating to a LEA's decision to provide special educational treatment for a child (section 34(6) and section 68), it is not intended to give parents an automatic right of appeal under section 8, solely on the basis of the introduction of new procedures. Parents will have the right of access to the appeal procedures where the statement specifies different provision from that provided for the child by the LEA immediately prior to the making of a statement and after an assessment has been made under section 5 whether as a result of parental request under section 9 or otherwise.

41. Additional transitional provisions may also be necessary to ensure a smooth changeover to the new arrangements set out in the Act. In such cases the Secretary of State will undertake consultations in the usual way.


JA HAMILTON

To: Local Education Authorities and other bodies