The right to a suitable education: what the law says

The right to a suitable education: what the law says

Why do I have to go to school to learn? Many children and young people find school or college inaccessible for a variety of reasons. It can be difficult enough when they have a visible disability, but what about hidden disabilities? Anxiety? Post-viral fatigue? Ill, but of unknown origin? There seems to be a lot of confusion around how these events are recorded and how education should be provided, so I’m going to take you for a little wander around some legislation.

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Section 9, Education Act (1996)[1]

This is a general principle that a child will be educated in accordance to their parents’ wishes. Put simply, the piece of law that allows for free state education for all children or, if a parent chooses, to educate their child themselves (providing the education given is ‘efficient’). S9 also allows for a parent to request from the local authority (LA) a place at school A and not school B, if the cost difference between the two is not great. However, it does not give the parent the automatic right to be allocated school A, if school A is an expensive, fee-paying boarding school!

Section 19, Education Act (1996)[2]

 “Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”

The statement is clear – the LA must provide a suitable education for a child who is out-of-school ill, excluded, ‘or otherwise’. This duty applies to all children, whether they have special educational needs (SEN) or not. 

The education provided must also be full-time unless the LA determines that it would not be in the child’s best interests to do so, due to their physical or mental health. Section 19 also signposts the LA to seek further direction from any statutory guidance published by the secretary of state. 

Ensuring a good education for children who cannot attend school because of health needs (2013)[3]

 “This duty applies to all children and young people who would normally attend mainstream schools, including Academies, Free Schools, independent schools and special schools, or where a child is not on the roll of a school. It applies equally whether a child cannot attend school at all or can only attend intermittently”

Of course, a child attending intermittently may be well-supported by their school, and as such, does not need the LA to step in. The LA should step in if the absence is over 15 days, or if the child’s intermittent education appears to be long-term (or if the school cannot provide).

[The LA should] “Address the needs of individual children in arranging provision. ‘Hard and fast’ rules are inappropriate: they may limit the offer of education to children with a given condition and prevent their access to the right level of educational support which they are well enough to receive. Strict rules that limit the offer of education a child receives may also breach statutory requirements.”

Sadly, what I hear over and over again is: “My LA will not make provision without my child being medically signed off as unfit for school”. And, alarmingly: “My child’s school is marking them as ‘unauthorised absence’ and is saying they will take me to court for non-attendance”. Many of the latter become coerced into removing their child off the school roll. There can be confusion about recording such absences on school registers. It can be a case of ‘pick a code, any code’ lottery. Some children end up on part-time timetables or given a few hours of e-learning per week. Ofsted takes a dim view of off-rolling in any form.

Within law there is a pecking-order, Acts at the top, then we move through case law; Regulations and Statutory Guidance; Codes of Practice and; LA policy at the bottom. Looking at LA’s policies, some appear to support the notion that a parent must prove their child cannot attend school. Not always an easy task and, arguably, above what the law requires.

 “LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.”

Do LAs do this? What happens when a highly-anxious child cannot face another day at school? Where do you go? Often parents do not consider their GP because, well, the problem is educational, right? But what would happen if we were talking about an adult who couldn’t face work? We would quickly be talking about mental ill-health. We would go to our GP. For a child, a referral to the Child and Adolescent Mental Health Services (CAMHS) may be made, but often the waiting list is lengthy, if they agree to see your child at all. If you are a parent in this situation, do see your GP for referral.

There is another interesting thing to note about the guidance; a child does not need to be on a school’s roll. If you have been coerced in taking your child off-roll, it does not necessarily mean you have opted out of a free state education. 

Section 42

Children with Education, Health and Care plans (EHCP) have further protection under s42(2) of the Children and Families Act (2014):

“The local authority must secure the specified special educational provision for the child or young person.”

This is an absolute duty placed on the LA: ‘the local authority must …’. If your child’s needs have changed significantly, you can ask the LA for a statutory re-assessment of needs. The LA has 15 days to agree/disagree. A request for advice and information from an appropriate service could be made. If it is from a health body (NHS/CCG), they must do so within six weeks of being asked. If the LA refuses to re-assess, you can appeal to the First-Tier Tribunal (SENDiST).

Section 66

It is worth also mentioning s66 (Children and Families Act, 2014), otherwise known as the ‘Governors' duties’:

“If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must …. use its best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made.”

I point this out because of what I said above regarding parents viewing the school to be at fault, rather than the LA. In an appeal to the Tribunal (SENDiST) under the Equality Act (Disability Discrimination), regarding the lawfulness of a part-time timetable, the judge noted that if the case was unpicked further: “...it might be found that the greater part of the responsibility for S having been denied a full-time education rests with the authority”[4]

Provision, wherever

I have lost count as to how many letters I have drafted regarding s19 (Education Act) and s42 (Children and Families Act). That is without starting to consider duties under the Equality Act 2010, or Articles 23 & 28 of the United Nations Convention for the Rights of the Child (UNCRC) (to receive an education (and special care if disabled)). 

Some complaints find their way to the Local Government and Social Care Ombudsman (LGSCO) and usually rightly so. It cannot be said for certain whether an individual situation is right or wrong, because each situation is case-dependant. Often Ombudsman complaints about a lack of education also include delays in the Education, Health and Care plan process, such as recently published complaints about HertsDevon and Leicestershire. The Ombudsman publishes its decisions on its website, so more, similar decisions can be read there.

No family should be passed from pillar to post and no child should be left without an education. Parents should not have to jump through multiple hoops and scale the highest walls just so that their child gets an education. If you choose to speak out, consider emailing your MP too. They are your representative in Government.

Bren Prendergast, writing with colleagues, for sen-help.org.uk Sen-help is a charity which provides bespoke training to parent groups across England, looking from a local perspective.

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References

  1. [1] https://www.legislation.gov.uk/ukpga/1996/56/section/9
  2. [2] https://www.legislation.gov.uk/ukpga/1996/56/section/19
  3. [3]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/269469/health_needs_guidance__-_revised_may_2013_final.pdf
  4. [4] https://www.ipsea.org.uk/f-t-v-the-governors-of-hampton-dene-primary-school-sen-2016-ukut-0468-aac

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Bren Prendergast

SEND Parent & Advocate at BJPren Blog
Bren Prendergast is an SpLD Tutor as well as the parent of a child with additional needs. Bren won cases against her LA after they threatened her with court action over her son's non-attendance due to issues with his school. Bren volunteers for a large charity that gives free legally-based advice. She also assesses students for Access Arrangements for their exams.
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