Coronavirus, discrimination, Guest Posts, special needs

School Attendance? What if your disabled child isn’t allowed in?

with Anna C, parent of a child with complex needs

The Government has just launched a consultation seeking views on its plans "to improve the consistency of school attendance support and management."

  • Requiring schools to have an attendance policy, and have regard to statutory guidance on the expectations of schools, academy trusts and governing bodies of maintained schools on attendance management and improvement. 
  • Introducing guidance on the expectations of local authority attendance services. 
  • A clearer more consistent national framework for the use of attendance legal intervention, including a new regulatory framework for issuing fixed penalty notices for absence. 
  • Bringing the rules for granting leaves of absence in academies in line with other state funded schools.

Now, as we know, there are many reasons why a disabled child may not be in school, including illness, school anxiety, exclusion, no appropriate place and so on, so we would urge you to offer your views on this consultation.

The Children's Commissioner has also pledged to track down the "80,000-100,000" children who haven't returned to school post Covid lockdown. Again, for disabled children, there may be a number of reasons for this, including parents who believe their children are too clinically vulnerable to expose them to the continuing health risk of attending.

And then there are the children whose parents would like them to be in school, but they haven't been allowed back. Back in 2020, we became aware of a situation where children who needed aerosol-generating procedures at school, such as those with a tracheostomy, were being told they couldn't return to their educational setting in September because Covid made conducting AGPs unsafe. We wrote this post about it. Since then we've heard that in most schools the situation has eased, but this isn't the case across the board.

One parent, Anna, who is also a head-teacher, has written to us about her son "H". H is almost six and still hasn't been able to spend a single full day in school. Anna takes up their story below.

The latest government guidance is linked at the end, but what Anna details about the experience of her child is discrimination and definitely not in compliance with any guidelines. If something similar has happened to you, let us know.

My disabled son's school is placing unlawful barriers to his attendance by Anna C

H is six in March and has yet to spend a single day in any school. This started when he was before three. We worked to try to start him in a nursery, and we're now on our second school and he is still not allowed to attend.

Why? Because H has a tracheostomy, is peg fed, and non-verbal. He is a bright boy who has self-taught himself numbers to 100, his alphabet, read CVC (consonant, vowel, consonant) words. He has an Education, Health and Care Plan (EHCP) with an exceptionally high monetary value and also takes a one-to-one carer into school.

His current school allowed him to start in September (one year delayed) on a phased return alongside his peers. But on day three, H had a secretion episode due to the environment being too hot. That Saturday night, at 10pm, we got an email from the head-teacher asking if the risk assessment had been medically signed by his consultant. This had not been previously requested or discussed. We replied no, and from that date, H has been refused entry to school unless either I or his dad sit in the car park. This would continue to be the case until the RA was signed off.

There was no Individual Health Care Plan in place, despite myself being a headteacher at a different school and requesting this documentation.

H's consultant has sent emails to confirm she agrees with the medical content of the documents - but this wasn't good enough for the school who were demanding a formal sign-off.

Teaching Assistants in school have been trained (one more sign-off needed) but since this time, we have refused to allow this to be completed as every time we take H to school, he doesn't want to leave and we don't want him to feel like he's being punished by coming in for a trachy change and not being allowed to stay and play.

No alternative education

We are now in January, H is six in March. His school has refused to provide any alternative education, so this has been arranged by his SEND caseworker. The School (an academy) refused to work with the local authority advisor for supporting pupils with medical needs.

On one of the half-days my son was in, he also accidentally jammed his fingers in a door. Being non-verbal, he couldn't tell us what had happened and the school did not tell us at the time. When my husband asked them to clarify policies and procedures around this, the school banned him from the school site and will not allow him to communicate with any staff members. When we suggested we did a school visit to look at places that could be an issue for him, we were accused of questioning their safeguarding.

Once the local authority became involved, the school agreed to work on the Individual Healthcare Plan and Care Plan. These have been written by ourselves, not the school. The Care Plan and IHCP have also been endorsed by H's medical consultant. But still, the risk assessment is an issue.

And now, the LA wants to send his medical consultant a legal letter to 'force' her to sign it off. We have said no as every time there is a change we can see this happening again and again. (editor's note: and there is no basis in law for this requirement)

Children and young people previously considered CEV should attend school and should follow the same COVID-19 guidance as the rest of the population. In some circumstances, a child or young person may have received personal advice from their specialist or clinician on additional precautions to take and they should continue to follow that advice.

Schools COVID-19 operational guidance updated January 2022

Not a risk assessment for attendance

We have pointed out the risk assessment is not actually a risk assessment. There is no management of "risk", it's simply a narrative of his medical needs. So... we have an almost six-year-old child who has NEVER spent a full day in a school. He has an EHCP and a right to an education that is not being provided for him. 

And I am a head teacher in the same LA this school is in. I have been a SENCO for 20+ years. Even I, who understands this system inside out, cannot force this school or the LA to give my son the education entitlement he should have. You cannot argue with ignorance! 

I have offered my insights to the LA - but it seems they aren't bothered. They don't want to change and it is heartbreaking. Every day I go to work and fight for the children in my school, which is in a very challenging area. I, as a professional, support parents, families and children to ensure a fully-inclusive education. And still, I 'fail' to access this for my son due to ignorance and discrimination. And trying to get anyone to help us fight them is like getting blood out of a stone!

What can be done?

If you find yourself in this position here is an extract from our SNJ in Conversation episode with barrister, Steve Broach that touched on the subject. At the time, the coronavirus rules relaxation was in force but this section below remains valid.

In the interview Steve explains that the risk assessment isn't a legal process. The question is, where is the least risk? Ultimately the parent should decide, not the school. I've summarised what Steve says below:

If the school is refusing to thave the child back if they have an EHCP, is it complying with s43 of the Children and Families Act (CFA), which requires them to admit the young person. Additionally, are they making reasonable adjustments under the Equalities Act 2010, and are they acting reasonably?

If the refusal grounds are to do wider public safety, then the school must still explain how they are complying with their duty under s43 in that context.

If the school is claiming it has staff shortages, or there is no availability for one-to-one, for example, the local authority is where the legal remedy lies. However, there is also the s66 duty in the CFA, which is that they must use their best endeavours to secure special education provision for allchildren, whether or not they have a plan. This means school governors or academy proprietors can be challenged on the basis that they haven't used their best endeavours to make provision available.

"The starting point is what is in the plan and the LA, under the guidance, has to explain why it can't do what's in the plan and what else it's going to do. So it has to give a reasoned explanation to the family as to what's being done that is less than in the plan, but is still reasonable. I definitely would encourage families not to be put off by being told we only have to do what's reasonable - that might be quite a lot and in fact, it might be everything."

STEVE BROACH IN HIS INTERVIEW FOR SNJ IN CONVERSATION

You can find the whole interview on our new SNJ In Conversation page. The risk assessment answer is around 25' Remember the restrictions referred to are no longer in place.

What are my legal options?

As to what you can do legally, the answer, at present. is judicial review. You should first communicate with the school, ask them to reconsider and explain what it is that you and your child need.

But JR isn't an easy thing to do, especially if you don't have the money to spare. If you're lucky, you can try for legal aid as a litigation friend on behalf of your child. Is it worth it for the next few weeks? That's for your to decide.

So, speak to the school, explain what you want and ask why they can't do it. If they won't budge, and you can get one, you can consider a pre-action protocol letter from a solicitor. Legal charity SOSSEN also offers a fixed price service for a letter before action.


You can find additional government guidance on attendance and covid below:

Also read:

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Tania Tirraoro
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