Parent Asks:

A student is having a very successful placement at an Alternative Provision (AP) and we wish to increase this time as it is having such a positive impact at a very difficult time for this student. We have been told by the LA it is a legal requirement that time in an AP should not exceed time in school per week. We appreciate that the long-term plan is to increase time in school but at present feel more time in the AP is beneficial. Is it correct about it being a legal requirement?

IPSEA Answers

There is no specific requirement for alternative provision to be attended for fewer hours than the school setting in this situation. Local authorities (LAs) have a duty under section 19 of the Education Act 1996 to provide suitable, full-time alternative education for those children of compulsory school age who, by reason of illness, exclusion or otherwise, may not for any period receive suitable education unless such arrangements are made for them. In this situation, if the child is unlikely to receive full-time, suitable education within the school setting, then the LA must arrange an alternative. In some cases, the alternative provision will be a full-time requirement; in others, it will only be part-time or a dual placement with another setting. Alternative education should only be part-time if there are reasons which relate to the physical or mental health of the child meaning it would not be in the child's best interests for full-time education to be provided for the child.

It is often helpful to have the agreement specified in section F of the EHC plan to ensure it is legally enforceable, and a transition plan back into school can also be written into this where appropriate. Section F can, and should, specify the number of hours to be attended at each setting and the special educational provision that will be provided at each one.

A parent can request an early review of the EHC plan to ensure this is done, and IPSEA has a model letter they can use to do this: https://www.ipsea.org.uk/asking-for-an-early-review-of-an-ehc-plan They should send this request to the Director of Children’s Services at the LA; their contact details can be found here: https://adcs.org.uk/contacts/directors-of-childrens-services

If following a review, there are still concerns over the agreement with the AP, the parent can appeal the contents of the EHC plan to the SEND Tribunal to ensure that the special educational provision and placements are adequately specified within the plan, along with a transition plan if needed. There is more information about the appeals process here: https://www.ipsea.org.uk/appeals-about-the-contents-of-an-ehc-plan

If the AP has been arranged by the school, however, under its power to direct a pupil off-site to improve behaviour (section 29A Education Act 2002), then this can only be done where the pupil’s behaviour means that they are at risk of permanent exclusion. It should not be used because the school is unable to meet the child’s SEN or medical needs. The arrangement should be reviewed every 30 days as per Reg 4 of The Education (Education Provision for Improving Behaviour) Regulations 2010, and six days before each review the following people should be asked for their views regarding whether the arrangement should continue, as per Reg 5:

“(a) the relevant person;

(b) the provider;

(c) the headteacher of the school;

(d) a representative of the governing body; and

(e) where the pupil has a statement of special educational needs, a representative of the local authority maintaining the statement.”

If there is evidence that the time in the AP needs to continue and/or be increased, then this should be discussed at the reviews. There is nothing stated within the Education Act 2002 or the associated Regulations to state a maximum time that a pupil can spend within an AP. However, if it appears that the school placement isn’t suitable and the pupil is unlikely to be able to return, then we would again suggest asking for an early review of the EHC plan to consider the long-term placement options