LA's duty to children who are unable to attend school

Each Local Authority has a legal duty to provide suitable education to all children of compulsory school age who are not able to access school.  

Section 19 (1) of the Education Act 1996 imposes a legal duty on Local Authorities to provide children of compulsory school age, who are out of school with a suitable education.  This section of law ensures that all children have access to education, regardless of their circumstances, and sets out the responsibilities of Local Authorities in providing this education. 

This means that a Local Authority will need to provide suitable education for a child if they are out of school and may not for any period receive suitable education, unless such arrangements are made for them.  This applies to children of compulsory school age, who are out of school due to reason of illness, exclusion from school, or otherwise.  

Education provided under Section 19, should be full-time. However, if for reasons related to physical or mental health difficulties, it is considered not to be in the child’s best interests to provide full-time education the Local Authority must provide as much education as the child’s health allows instead. 

A child may be unable to access school due to mental health difficulties. For some children, mental health challenges such as anxiety make it difficult to attend school. This can be exacerbated by the school environment not being suitable and they may not be receiving the right support. These difficulties may also be associated with their SEN.  

Some children or young people may therefore reach a stage where they are completely unable to access the school environment. 

However, children who are unable to attend school due to mental health difficulties, are still legally entitled to receive a suitable education, under Section 19.
When Section 19 applies, the Local Authority will need to ensure that they deliver education outside of school using alternative methods, for example by providing home tuition, access to online learning or provision in an alternative setting. Local Authorities can use a variety of educational provisions to fulfil their requirement and this flexibility helps cater to the diverse needs and circumstances of children. 

Further, if your child has an EHCP, under the Children and Families Act 2014, the Local Authority must ensure the special educational provision that is specified within Section F of the EHCP is secured and delivered; this remains the case if your child is unable to attend school. Therefore, if your child is unable to access education in their school setting, the Local Authority will need to confirm how they intend to deliver the provision as set out within their EHCP moving forward. 

Whilst the provisions of Section 19 are comprehensive, there can be challenges in its implementation. Local Authorities often face issues related to funding, resource allocation and ensuring the quality of alternative educational provisions. However, these difficulties do not exempt a Local Authority from their legal duty to provide education, under Section 19 of the Education Act 1996.  Local Authorities will sometimes refuse requests for an alternative provision of education to be provided under Section 19. This is most commonly seen, when the request is made due to a child not being able to attend school due to illness, on the basis that the Local Authority does not think sufficient medical evidence has been received. 

Another area of challenge can be when a Local Authority has agreed to provide a provision of education under Section 19, but what they are providing is not suitable. This could be because the hours provided are too low and/ or because the way it is being delivered is not suitable to meet the child’s special educational needs.
If your child is experiencing difficulties with attending school and is not accessing a suitable education then this may be unlawful.  However, there are steps that can be taken to ensure that the Local Authority are complying with their legal duty, such as pursuing Judicial Review or making a complaint to the Local Government and Social Care Ombudsman. However, you cannot pursue both of these remedies and we recommend seeking legal advice as to which of these would be best for your case. 

HCB Solicitors are experienced in supporting parents to ensure that their children are accessing the education that they are legally entitled to.  This includes providing education law advice to parents in relation to children who are unable to access school for any reason, or are not being provided with the provision that is set out within their EHCP. 

If you have any questions regarding a child who is currently out of school, or are unsure as to what support your child with an EHCP is legally entitled to, then please do not hesitate to call our Special Education Law Solicitors on 0333 320 271 75 or send us an email at education@hcbgroup.com