what is section 19 duty to provide education

Education for children out of school

This page provides information on the duties of schools and local authorities to provide education for children out of school because of exclusion, illness or other reasons., what is the duty of the local authority towards children out of school.

Under Section 436A Education Act 1996 (introduced by Section 4 Education and Skills Act 2008), Local authorities are under a duty to identify children not receiving an education. Local authorities must make arrangements to identify children of compulsory school age in their area who are not registered pupils at a school and are not receiving suitable education otherwise than at school.

The Department for Education has issued statutory guidance on Children missing education. This states that children of compulsory school age who are not receiving a suitable education should be returned to full-time education either at school or in alternative provision.

For pupils aged 16–18, local authorities have the power rather than the duty to arrange education provision.

What is compulsory school age?

A child is of compulsory school age the 1st term after their 5th birthday. Therefore:

• children who turn 5 between 1st January and 31st March will be of compulsory school age at the beginning of the school term after 1st April;
• children who turn 5 between 1st April and 31st August will be of compulsory school age at the beginning of the school term after 1st September;
• children who turn 5 between 1st September and 31st December will be of compulsory school age at the beginning of the school term after 1st January.

A child remains of compulsory school age until the last Friday in June in the school year that they turn 16.

From September 2015, children will be required to continue in education, employment or training until their 18 th birthday. For further information on this see out information page on Participation of young people in education, employment or training .

What alternative education is available to children out of school?

The Department of Education has published statutory guidance on Alternative Provision . It includes:

• education arranged by Local Authorities for pupils who because of exclusion , illness or other reasons would not otherwise receive a suitable education;
• education arranged by schools for pupils who have been suspended;
• pupils directed by schools to off-site provision to improve their behaviour.

The education should be the same amount as a child would receive in a maintained school and can be made up by two or more part-time provisions. The education can take place in a Pupil Referral Unit or at another school. 

With regard to the expected standards of alternative provision, the guidance states that it should:

• aim at good academic attainment on par with mainstream schools in key subjects (English, maths, science and IT with the appropriate qualifications);
• identify and meet the specific personal, social and academic needs of pupils;
• aim to improve a pupil’s motivation and self-confidence, attendance and engagement with education; and
• have clearly defined objectives including future options of education, training or employment.

Children out of school because of exclusion

For suspensions, governing bodies of maintained schools and academies must arrange full-time education for excluded pupils from the 6th school day of the exclusion under Section 100 Education and Inspections Act 2006 .

For permanent exclusions, local authorities must provide suitable full-time education to permanently excluded pupils from the 6th day of exclusion under Section 19 Education Act 1996 .

For more information on the obligations of schools and local authorities following exclusion, see our information on School exclusion .

Children out of school for reasons other than exclusion

There is no statutory time limit for starting a suitable full-time education for students who are out of school but have not been excluded; however, it should begin as soon as possible.

Children out of school because of illness 

The government has issued Statutory Guidance titled Ensuring a good education for children who cannot attend school because of health needs . 

If your child of compulsory school age is unable to attend school due to illness, the local authority must arrange for appropriate full-time education (or as much education as the child’s health allows). Although there is no statutory timeframe, the local authority should attempt to arrange this as soon as it is clear that the child will be absent from school for more than 15 school days (consecutively or cumulatively). For long term medical conditions, education can be provided at home or at hospital.

The local authority should have a named officer who is responsible for the education of children with additional health needs and their details should be made known to the parent. 

All students of compulsory school age have the right to a full-time education. A child can be placed on a temporary part-time timetable in exceptional circumstances, such as when a medical condition prevents full-time attendance. This cannot be a long-term solution, and it must be clear when the part-time timetable will end. Absences from school as part of the part-time timetable will be considered authorised.

A part-time timetable must not be used as a disciplinary measure. 

For more information on the obligations of schools toward children with medical needs, see our information page on Supporting children with medical needs in school .

When can a child be sent off-site for education?

Under Section 29A Education Act 2002 (introduced by section 154 Education and Skills Act 2008), governing bodies of local authority maintained schools can direct a pupil off-site for education to improve their behaviour. In this situation, the governing body must:

• ensure that parents are given clear information about the placement – why, when, where and how it will be reviewed;
• advise the local authority, where the child has an EHCP;
• regularly review the placement (with regular input from parents), to ensure it is achieving its objectives and the pupil is benefitting from it.

Parents can request, in writing, that the placement is reviewed and governing bodies must comply with the request as soon as is reasonably practicable, unless there has been a review in the last 10 weeks. 

The governing body should have a plan for reintegrating a child into mainstream education at the end of the placement off-site. A report should be produced of the pupil’s achievements, attainment and progress as well as attendance.

Section 29A does not automatically apply to Academies, although the Academy may have a power to direct off-site under its own terms if this is part of their funding agreement. Academies can follow section 29A as a matter of good practice. 

This information is correct at the time of writing, 11th December 2023 . The law in this area is subject to change.

Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. Individuals may print or photocopy information in CCLC publications for their personal use.

Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.

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The right to a suitable education: what the law says

• Author Kimberley Hircock

What are the duties of local authorities in relation to providing education to children?

Section 7 of the Education Act 1996 states that parents who have children of compulsory school age must secure an education for them and that the education must be suitable for their:

• any special educational needs that they may have

The education can be obtained either by regular attendance at school or otherwise. This means that parents can opt to home educate their children if they wish, provided they can show the criteria is being met (i.e. that the education is suitable for the child’s age, ability and aptitude and any special educational needs).

For those parents who want their children to attend school

Section 19 of the Education Act 1996 states that each local authority must make arrangements for 

• the provision of suitable education 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 arrangements are made for them. 

A local authority does not have to comply with the duty under section 19 of the Act, if a child is to cease to be of compulsory school age within the next 6 weeks and does not have any public examinations to complete.

What is “compulsory school age”?

A child is of compulsory school age from the beginning of the term following their 5th birthday until the last Friday of June in the year in which they become 16, provided that their 16th birthday falls before the start of the next school year.

What should education provided by the Local Authority look like?

Section 19 of the Education Act 1996 states that the education has to be full-time. 

If the child is considered to have a physical or mental health need, that would mean it is not in the child’s best interests to attend full-time education, education can be provided on a  part-time basis. 

The education has to be an efficient education suitable to his or her age, ability and aptitude and to any special educational needs that a child may have.

What are the difficulties that arise when the Local Authority does not provide suitable education

In February 2022 the Local Government and Social Care Ombudsman released its decision into an investigation carried out involving a child who has special educational needs. 

The Council had failed to provide the provision stated within the child’s EHCP and to provide a suitable alternative provision in the interim.

Ms A’s son, Child X, has severe disabilities and special educational needs and in September 2018 he was transitioned to a school that could provide him with further support for his needs. 

Unfortunately, Child X struggled with the transition and was excluded on a fixed term basis several times over a five-month period, the last occasion being March 2019. 

An annual review of the EHCP was held in March 2019 but the parties were unable to agree on an educational establishment to be named in the EHCP. 

The Council therefore issued a final EHCP in November 2019 naming the school that the child was excluded from. This was challenged at the Tribunal by Ms A and she requested a residential placement for Child X. 

The Tribunal did not agree with this residential placement but confirmed that the current placement was not suitable for Child X. Instead, the Tribunal named a type of provision required for Child X.

Following the decision, the Council proposed the same school but with a specialist outreach package of support. Ms A declined this in light of the previous experiences at the school.

The Council consulted with various schools but could not find appropriate provision. Ms A complained to the Council about its failure to provide a placement, but this was not responded to although it was acknowledged a complaint had been lodged. 

It was not until January 2022 that a placement was proposed for September 2022, with interim education of 2 sessions a week at a local social care setting in place until that time.

In light of the Council failing to provide suitable provision for 14 months, it was deemed that this fault by the Council had caused significant injustice to the child and it was ordered to pay £9000 as a recognition of lost provision for Child X and distress caused by the Council failing to consider the complaint.

The full report can be found here: 21 005 548 - Local Government and Social Care Ombudsman

If you would like advice or assistance with anything related to the above please contact Kimberley Hircock on 01245 453803 or at [email protected]

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The Education Act 1996, Section 19 - Local Authority & School Responsibilities

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Dear Colleagues,

A review of recent cases has led to identification of some practice issues that require clarification. The Section 19 duties from the Education Act 1996 include a number of key references, with full details available to view here .

By way of a helpful summary and for useful signposting I have briefly covered some of the key elements we as education professionals should be able to reference, follow and consider when taking decisions which relate to the enablement of learners to engage in education.  Ahead of that its also important to remind ourselves of the duties on parents which is covered in Section 7 of the same Act.

Section 7 Section 7 of the Education Act 1996 also states that parents who have children of compulsory school age must secure an education for them and that the education must be suitable for their: - Age - Ability - Aptitude - Any special educational needs that they may have

The education can be obtained either by regular attendance at school or otherwise. This means that parents can opt to home educate their children if they wish, provided they can show the criteria is being met (i.e. that the education is suitable for the child’s age, ability and aptitude and any special educational needs). Section 7 of the Education Act 1996 sets out that responsibility for children’s education rests with their parents. Should parents not wish to send their child to a school, post-16 institution or alternative provision, they can make other suitable arrangements in the form of Elective Home Education. The EHE must be efficient, full-time, and suitable, according to the age, ability and aptitude of the child, and to any special educational needs (SEN) they may have.

School Responsibilities The Working together to Improve School Attendance guidance has very helpfully and clearly set out what is expected of schools and other partners in the drive to improve School Attendance.  We have seen a sharpening of focus from Ofsted in relation to Attendance management and the need for schools to not only manage this, but also to understand the causes and have appropriate strategies to combat poor attendance that is not generic but instead has a clear and targeted focus on the school’s cohort of children. 

Key expectations on schools include:

Support pupils and parents by working together to address any in-school barriers to attendance.

Schools are under a duty to make reasonable adjustments to allow the pupil to access a suitable full-time education (or as much as the child’s health condition can manage) in line with statutory guidance. This may include arrangements for schoolwork being sent home for short periods of absence, a part-time timetable or remote/virtual learning.   Where barriers are outside of the school’s control, all partners should work together to support pupils and parents to access any support they may need voluntarily. As a minimum, this should include meeting with pupils and parents at risk of persistent or severe absence to understand barriers to being in school and agreeing actions or interventions to address them. This may include referrals to services and organisations that can provide support. These actions should be regularly discussed and reviewed together with pupils and families.   Where absence intensifies, so should the support provided, which will require the school to work in tandem with the local authority and other relevant partners. 

Where a pupil is, or likely to be, absent for a period of 15 days, including due to a medical condition, schools are required to notify the local authority. Once notified by schools that a child will be absent for 15 days or more, the local authority will work alongside schools, health, and other professionals (where appropriate) to ensure that suitable education is made available. 

The DfE has issued helpful guidance providing a summary of responsibilities where a mental health issue is affecting attendance.  It is important that schools considers this guidance alongside the working together to improve school attendance guidance. It applies to any pupils displaying any social, emotional or mental health issue that is affecting their attendance. It is not only for pupils who have a diagnosed mental disorder, or a disability or special educational need. There is a specific section on additional considerations for children with SEND and/or assigned social worker. 

If the needs and barriers are individual to the pupil this may include provision of mentoring, careers advice, college placements, 1-2-1 tuition or out of hours learning, or where appropriate an education, health and care plan or alternative provision.   Where the needs are wider and a whole family response is more appropriate, this is likely to include a voluntary early help assessment.   Where engagement in support is proving challenging, schools should hold more formal conversations with the parents (and pupil where they are old enough to understand). This is likely to be led by the senior leader responsible for attendance and may include the school’s point of contact in the local authority School Attendance Support Team. These meetings should clearly explain the consequences of persistent and severe absence to the pupil and family and the potential need for legal intervention in future, but should also be an opportunity to continue to listen to and understand the barriers to attendance and explain the help that is available to avoid those consequences.   Section 19 Section 19 of the Education Act 1996 places a duty on LAs as follows:

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.   Underlying principles If a child is permanently excluded, the LA must provide suitable, alternative full-time education from day 6 of the exclusion. If a child is unable to attend school for another reason, such as the placement breaking down the Section 19 duty will arise. For example, if a child feels unable to attend school despite parents working hard with professionals to get them back into school, and they are not reasonably able to attend, then the LA’s duty to provide suitable alternative education arises.

Parents have to show that they have made every effort to work with the school and LA, to make school attendance possible through adjustments and schools have a duty to work with families to enable access to education.

- Local authorities must:   Arrange suitable full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education.   - Local authorities should: Provide such education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child.   - Ensure that the education children receive is of good quality, as defined in the statutory guidance.   - Alternative Provision (2013) , allows them to take appropriate qualifications, prevents them from slipping behind their peers in school and allows them to reintegrate successfully back into school as soon as possible.   - 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.   Section 19 of the Children and Families Act (CFA) 2014 sets out the principles underpinning the legislation and the guidance in the SEND Code of Practice. Section 19 makes clear that local authorities, in carrying out their functions under the Act in relation to disabled children and young people and those with special educational needs (SEN), must also have regard to: - The views, wishes and feelings of the child or young person, and the child’s parents.  - The importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions. - The need to support the child or young person, and the child’s parents, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.

Please see the links below to guidance available from the Department for Education and a particularly helpful document produced in February this year which summarises the expectations of Parents, Schools, Trusts & Governing Bodies and the Local Authority in relation to responsibilities where a mental health issue is affecting attendance.

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Practice Note: The test for suitable education under s19, Education Act 1996:

Friday 19 november 2010, share this page, email this page.

1. The recent case of R (KS and Ors) v LB of Croydon clarified the correct test which must be applied when determining what constitutes suitable education pursuant to s19, Education Act 1996

2. The case involved 3 claimant unaccompanied asylum seeking children, all 14 years old, all in foster care provided by the local authority pursuant to s20, Children Act 1989. Thus all three are ‘looked after children’. All had been looked after by the local authority since at least end of November / early December 2010. None of them, by the time judicial review proceedings were issued in early September, had been in full-time education or at all.

3. Two of the claimants, NA and ZU, had been placed previously on an English language course for 12 weeks and 6 weeks respectively. KS had had no education.

4. The Claimants’ claim that LB of Croydon has failed:

• To provide them with suitable full-time education as required by section 19 of the Education Act 1996 (the s.19 point, Issue 1), and
• Comply with its duties under ss 13 & 14 of the 1996 to ensure that efficient secondary education is available to meet the needs of its population and secure sufficient schools for providing secondary education in its area (the ss.13 & 14 point, Issue 2)..

5. It will be seen from the outset that the two issues are inextricably interlinked; it is the failure of D to ensure that it has sufficient secondary schools that has led to D’s failure to provide education for the Claimants which has in turn led to the breach of the statutory duty specifically owed to the Claimants by s.19.

S19 of the Education Act 1996

6. S19, EA 96 is a “longstop”. Its purpose is clear; to ensure that all children of compulsory school age receive suitable education at school or otherwise than at school. Thus it matters not what the reason a child may not be in mainstream education – either by reason of illness, exclusion or otherwise. S19 is the catch-all safety net so that no child of compulsory school age is without education.

7. The “suitable education” that s.19(1) requires is defined in s.19(6): “efficient education suitable to his age, ability and aptitude ...”. As one would expect this is referable the circumstances of the individual child.

8. The previous version of s19, EA 96 specified in s19(1) that “Each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school…”

9. The phrase “full-time or part-time” was repealed by way of an amendment of the Education Act 1997.

10. The section is silent on whether the education provided under s19 has to be full-time.

11. However, see DfES Circular 7/90 which states as follows:

Age Suggested minimum weekly lesson times

5-7 21 hours

8-11 23.5 hours

12-16 24 hours

12. Reading into ‘suitable education’ arguably, the minimum weekly lesson times provide a guide to what ‘suitable’ entails. Certainly as Is stated at s19(6), what is suitable will also have to be adjusted to the aptitude, age and ability of the child and any special educational needs he may have. So it is of course possible for the curriculum to be differentiated and the hours to be reduced / increased accordingly.

13. That ‘suitable education’ primarily must be full-time education can find its support in the amendment to s19 by way of the Children , Schools and Families Act 2010:

[ (3A) In relation to England, the education to be provided for a child in pursuance of arrangements made by a local authority under subsection (1) shall be—

(a) full-time education, or

(b) in the case of a child within subsection (3AA), education on such part-time basis as the authority consider to be in the child's best interests.

(3AA) A child is within this subsection if the local authority consider that, for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided for the child. ]

14. S19(3A) and s19(3AA) are not yet in force but it is telling that there is the necessity, for clarity’s sake, to define education as full-time education.

The outcome of KS

15. The s19 point in the KS case was considered by Lindblom J on 19/ 20 October 2010. The Claimants’ contention was that the language course was not suitable education within the meaning of s19, EA 96.

16. The reason it is not s19, EA 96 is because the decision reached that a language course is all the claimant children should receive is not one done by way of consideration of each individual child’s age, aptitude and ability, as is required under s19(6).

17. The Defendant local authority contended that most unaccompanied asylum seeking children arrive with little education, some are illiterate, majority do not speak English. Thus an English language course is the most appropriate course of education.

18. The judge considering the facts of each individual claimant child found that whilst it is in principle conceivable in fact-specific circumstances that a language course could amount to s19 EA 96 suitable education, it is not so in the cases of these three claimants.

19. It is not so because the local authority did not put its mind to the educational needs of each individual claimant.

20. To arrive at a conclusion as to ‘suitable education’, the local authority had to put its mind to the age, aptitude and ability of each claimant child before arriving at a conclusion as to what suitable education for that specific child is.

21. A declaration that the LB of Croydon breached its s19, EA 96 duty was made with an order for an educational assessment to be carried out in respect of each claimant child to determine what suitable s19 education ought to be provided to each of them.

Practical Implication

21. Although it may have seemed obvious that s19(6), EA 96 imported a requirement on a local authority to assess the educational needs of the child in order to determine what constitutes s19 suitable education for the child, plainly as the facts of the KS case illustrate, local authorities have not in fact done so.

22. It is possible that the failure of local authorities to do so is highlighted by the facts of the specific claimant children in KS, all three being unaccompanied asylum seeking children.

23. Certainly, it would seem from the approach of the local authority in KS, a sweeping assumption was made about unaccompanied asylum seeking minors being either illiterate / poorly educated; non-English speakers; and thus no practical benefit can be gained by putting them in mainstream education.

24. That approach can no longer stand post- KS .

25. For 16-18 year olds, the Apprenticeship, Skills, Children and Learning Act 2009 will insert into the Education Act 1996, additional entitlements to core education (such as English, Maths / Numeracy) when it comes into force: see ss17A-D, EA 96. This could make for further interesting arguments in respect of the duties owed by local authorities to this new cohort of children and the interplay with s19, EA 96.

Note: The second part of KS, on ss13-14, remains undetermined. Lindblom J adjourned that aspect of the case for a further hearing, no hearing date yet.

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• ilonaroberts
• Jan 20, 2022

High Court finds LA not in breach of Section 19 duty in EOTAS/ EHCP case

In r (q) v staffordshire cc [2021] ewhc 3486 (admin), important guidance was provided for local authorities, as well as claimant solicitors, in this complex area of send law..

Under the Education Act 1996, local authorities (LAs) have a duty to ensure the suitable education of all compulsory school aged children. For the majority of children and young people, this will take pla ce in school. But what does a ‘suitable’ education look like when it comes to children whose special educational needs and disabilities (SEND) mean that attendance at a formal school setting is inappropriate?

For some families, Elective Home Education is an answer to this challenge. However, for many parents, the financial and logistical complications of providing for their child’s SEN, discounts this option. One viable alternative is EOTAS, or ‘education otherwise than at school’. Where it is deemed inappropriate for a child to be educated in a formal setting, this provision allows an LA to arrange for a child or young person with SEND to be educated by way of a suitable alternative (s 61, Child and Families Act 2014).

Yet as anyone who works for an LA knows, each child’s needs are different and what is ‘suitable’ for one individual may not be for another. Examination of a recently published case, R (Q) v Staffordshire CC [2021] EWHC 3486 (Admin), highlights h ow contentious t he issue of ‘suitability’ can be.

R (Q) v Staffordshire CC concerns the suitability of the education provided to “Q”, a five-year-old boy with SEND. On becoming eligible for a school place in September 2020, Q initially attended a local mainstream school. Within a month of starting however, it became apparent that his attendance was inappropriate; the staff could not meet his needs and his behaviour culminated in his assaulting another pupil, resulting in exclusion from the school.

From January 2021, school staff arranged for Q to attend VIP Stop Gap, a temporary facility which provides occupation, activity and learning for children who are struggling in school, which Q attended part-time. Q’s behaviour continued to be very challenging, including being temporarily excluded for assaulting an adult at the facility.

In May 2021, on request by the school, the LA began a statutory assessment of Q’s needs. It was not until September 2021 that Q, through a solicitor, first complained about the educational provision, but the action was taken no further on reassurance that work to address the issues was ongoing and a judicial review would be premature.

While this process was ongoing, Q’s behaviour improved significantly, leading a manager of VIP Stop Gap to come to the view that a generic special school would be appropriate for Q’s needs. This led the LA to obtain a further educational psychologist report and widen their search for a placement.

In October 2021, Q’s judicial review claim against the LA was issued alleging a breach of s 19 of the Education Act 1996 and claimed damages for an alleged breach of article 2 of the First Protocol to the European Convention on Human Rights. The claim also sought interim relief in the form of an order that “within 7 days of this order, the Defendant must provide suitable, full-time education that meets the Claimant’s needs.” Interim relief was not granted.

By the time of the substantive hearing in December 2021, an appropriate placement had been found, and accepted by Q’s parent; he was due to start there in January 2022.

We focus in this article primarily on the first ground: the alleged breach of section 19 of the Education Act 1996 (EA 1996).

Legal implications for the question of ‘suitability’ in EOTAS cases

Section 19 of the EA 1996 imposes a duty on LAs to “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”. It is the basic safety net provision which ensures all children receive a suitable education of one sort or another.

What is ‘suitable’ means “efficient education suitable to his age, ability and aptitude and to any special educational needs he may have” (s 19(6) EA 1996).

For Q, then, the question was whether the LA failed to provide ‘suitable’ education under s 19. Q alleged that VIP Stop Gap was not suitable because it did not employ qualified SEND teachers, nor did it employ a dedicated SENCO. Additionally, it was part-time, and Q had been entitled to full-time provision since September 2020. In addition, the claimant also submitted that VIP Stop Gap was not providing ‘education’; it was instead akin to ‘merely playing’ or childminding.

Kerr J did not accept the submission that to be suitable, EOTAS provision had to be ‘equivalent’ to the education that could be provided in a school setting. In deciding this issue, Kerr J was directed by the LA’s counsel to Bevan v Shears [1911] 2 KB 936, a case which allowed for magistrates to find that a child was receiving suitable home education without deciding it was as efficient or in other words, ‘equivalent’ to that which he would be receiving in a school setting. In short, ‘suitability’ does not always equal equivalence to education in a school.

Secondly, Q’s allegation that the part-time nature of VIP Stop Gap’s provision rendered it a breach of duty to provide a s uitable education was dismissed. Kerr J accepted the LA’s submission that Q’s attendance level was “determined by reference to what it is considered he can cope with” (paragraph 46). Under this determination, part-time provision was appropriate and suitable, with no statutory duty to formally assess to that effect. Kerr J held that this provision was suitable and was a ‘good start’ in responding to a very difficult educational problem.

Thirdly, the content of VIP Stop Gap’s daily schedule was cited by Kerr J as evidence of educational value; VIP Stop Gap provided a timetable indicating that from September 2021, Q was attending classes such as maths, art therapy and IT skills, as well as ‘personal interaction’. This led to Kerr J’s comment that Q’s time at the VIP Stop Gap placement was not “provision of unsuitable education’, and “still less that it was not education at all”. He stated, “I am satisfied that it was education otherwise than at a school within section 19” (paragraph 52).

Finally, and importantly, Freedman J at an earlier hearing found that were he to order the LA to place Q in a school within 7 days, as was requested by the claimant, he would be concerned about the likelihood of placing the LA at risk of contempt given the infeasibility of compliance. Ultimately in this case, Kerr J judged that, albeit temporary, a suitable EOTAS placement had been found by the LA while they looked at more permanent options for Q; the suggestion that the LA had not acted in a timely manner was also rejected.

Key lessons for LAs

This case highlights some key takeaways for LAs, particularly with regards to the importance of rigour and timeliness in the EHCP process. By assessing and amending Q’s EHCP throughout the search for a permanent placement, a ‘suitable’, permanent, special school for Q was ultimately found, and agreed by his parents.

Suitability of a future placement, therefore, could only be determined by the outcome of the EHCP process after formal assessment of Q’s needs had taken place. It is also at the conclusion of this process that the right of appeal to the FTT is triggered, which Kerr J argued would have been a more appropriate arena for a dispute of this kind. In the interim, the documenting of evidence of decision making is key; evidence of VIP Stop Gap’s provision played a key role in finding that the LA was not in breach of their duty to provide suitable education for Q.

However, the outcome of an application for permission to appeal is awaited; evidently, issues of suitability remain contentious.

_____________________________

Ilona Roberts and Bethany Hutchison

Ilona Roberts and Bethany Hutchison are Paralegals at LASEN Ltd. LASEN host regular online training for local authority SEND and EHCP officers. For more information, local authority employees will need to become members of LASEN at https://www.lasen.co.uk . LASEN membership is free of charge but only open to local authority employees.

This article is written for general information purposes. It does not constitute legal advice and should not be relied on as such.

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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. 

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).

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  Herts ,  Devon  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.

• [1]   https://www.legislation.gov.uk/ukpga/1996/56/section/9
• [2]   https://www.legislation.gov.uk/ukpga/1996/56/section/19
• [3] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/269469/health_needs_guidance__-_revised_may_2013_final.pdf
• [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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a significant injustice?

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Special Needs Jungle

Bracknell Forest Council (22 007 045)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 14 May 2023

The complaint

What i have and have not investigated, the ombudsman’s role and powers, how i considered this complaint, what i found.

• A greed action

Final decision

Parts of the complaint that i did not investigate, the ombudsman's final decision:.

Summary: Mr X complained the Council has not provided education for his daughter, Y, since she has been unable to attend school from January 2022. He also complained Y has not had the full provision set out in her Education, Health and care plan (EHCP) and the Council has not adhered to statutory timescales about the EHCP and annual review documentation. Mr X also says the communication with the Council throughout this matter has been poor. Mr X says Y has missed education, Occupational therapy and Speech and Language Therapy provision and the family have been put under considerable stress. The Council did not provide education until appeal rights to the tribunal were engaged, did not provide documentation after annual reviews within the statutory timescales and communication was difficult. Mr X and Y suffered distress and Mr X has been put to time and trouble to complain. The Council should apologise to Mr X and Y, make a financial payment on top of the amount identified in its complaint response, ensure provision is in place for Y and update its policies.

• Mr X complained the Council has not provided education for his daughter, Y, since she has been unable to attend school from January 2022. He also complained Y has not had the full provision set out in her EHCP and the Council has not adhered to statutory timescales about the EHCP and annual review documentation. Mr X also says the communication with the Council throughout this matter has been poor. Mr X says Y has missed education, Occupational therapy (OT) and Speech and Language Therapy (SALT) provision and the family have been put under considerable stress.

Back to top

• I have investigated matters in this case from June 2021. The final section of this statement contains my reasons for not investigating the rest of the complaint. I reference events prior to this date for context in this matter.
• We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
• We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
• When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
• I have exercised discretion to consider events in this complaint back to June 2021. I reference events prior to this for context in this matter. The Council did not issue its decision letter after the June 2021 annual review until January 2022. Mr X has pursued matters since this date.
• I read Mr X’s complaint and spoke to him about it on the phone.
• I considered information provided by Mr X and the Council.
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Background information

• A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
• The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
• There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
• The courts have established that if someone has or could have lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
• The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
• The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
• Within four weeks of a review meeting, a Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
• Where a Council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
• The Special Educational Needs and Disability Code states if a Council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
• Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
• Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
• Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
• This applies to all children of compulsory school age living in the local Council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
• The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the Council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
• Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, Councils 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”.
• Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
• The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
• The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
• We have issued guidance on how we expect Councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
• The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.

What happened

• This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
• Y has special educational needs. She was initially provided with an EHCP in July 2019. Section F set out occupational therapy (OT) support and speech and language (SALT) support.
• Y left mainstream school in September 2019 and moved to a specialist education provision, school A. Mr X removed Y from this placement in January 2020 due to safeguarding concerns.
• In May 2020, a Council investigation concluded school A was not meeting Y’s needs.
• The Council held an annual review in May 2020. This meeting confirmed the Council needed to update Y’s plan.
• Mr X says the Council did not provide education to Y until she started at her new school, school B, in January 2021.
• In March 2021, school B announced it would change its name and ownership.
• The Council wrote to Mr X in April 2021 to inform him it had amended the placement in Y's EHCP after the May 2020 annual review, but it did not amend the plan.
• School B held Y’s annual review in June 2021. No paperwork from the 2020 annual review or updates recommended had been provided. The review recommended more updates to Y’s plan.
• In July 2021, school B announced it would be moving premises.
• Mr X complained to the school in September 2021 about the lack of time out space, equipment, the noise of the new building and there was no transition. He said this impacted Y’s ability to engage with school.
• In January 2022, Mr X decided not to send Y back to school B. School B held a meeting with Mr X and Y. School B agreed it would provide weekly OT and SALT sessions and send home worksheets for her to complete.
• Mr X complained to the Council in the middle of January 2022. He complained the Council had not adhered to the EHCP timescales to inform him of the Council’s decisions after the annual reviews in May 2020 and June 2021. Mr X also complained about the poor communication and that school B was not suitable for Y.
• The Council responded to Mr X’s complaint at the end of January 2022. The Council acknowledged it did not send a decision letter after the May 2020 annual review within the four weeks set out in the regulations. It sent this letter in April 2021. It admitted this frustrated Mr X’s right of appeal to the SEND tribunal. The Council also accepted it had not sent a decision letter to Mr X following the June 2021 annual review within the required four weeks. The Council confirmed communication had been challenging due to high staff turnover but assured Mr X it was recruiting new officers. The Council addressed Mr X’s concerns about school B’s ability to meet Y’s needs by offering him an urgent annual review.
• The Council wrote to Mr X at the end of January 2022. It informed him it did not need to make any changes to Y’s plan following the June 2021 annual review and did not issue an updated EHCP. The Council set out Mr X’s appeal rights to the SEND tribunal if he disagreed with this decision.
• School B held an urgent annual review in February 2022 as Mr X wanted a change of placement. The review went through the changes recommended in the last two annual reviews that the Council had not actioned. The meeting considered further changes needed to Y’s plan. The meeting also discussed other schools Mr X wanted to consider as he felt school B could not meet Y’s needs and she needed to move schools. School B stated it could meet need but said it would be difficult as Y’s parents did not feel it was the right setting. Mr X did not agree and requested a placement at school C.
• The Council issued its decision to amend Y’s plan in March 2022. The Council issued a draft EHCP with some changes and the school placement section, section I, left blank.
• The Council provided an update to its stage one complaint response at the end of March 2022. The response confirmed Y’s plan would be amended and issued. The Council stated school B was providing work, OT and SALT support. Mr X said this information was untrue and requested the Council escalate his complaint to stage two.
• The Council sent Mr X several emails with updated final EHCP’s in April 2022 which continued to name school B. The first email the Council sent set out Mr X’s right of appeal to the SEND tribunal. Mr X responded each time and stated the Council had not updated the plan, he did not have the appropriate documentation sent with it setting out his right of appeal or the changes in the plan were wrong. The plan sent in the emails was dated March 2021. The Council confirmed it had consulted with school C.
• The Council provided Mr X with its stage two response in May 2022. The response provided dates school B sent work for Y. The Council included in its response OT and SALT paperwork provided for the annual review in February 2022. It also included the OT and SALT provision log setting out the dates OT and SALT provision took place up until April 2022.
• Mr X responded and stated the information the Council had provided was wrong. Mr X complained a worker who dealt with the majority of the case had left and passed the unfinished response to someone who did not understand the issues and had just sent the response out. Mr X repeated he had not received any work for Y, and she was not getting the therapy she needed. Mr X requested the complaint was escalated to stage three. The Council agreed the response was incomplete and said it would arrange a meeting.
• School B met with Mr X at the end of June 2022. Mr X reported school B had admitted its failures and apologised. I have seen evidence of the meeting and school B sent a letter to Mr X acknowledging there had been issues with a lack of work for Y and concerns her needs were not being met. Mr X says school B verbally apologised in the meeting but I have not seen any evidence of a written apology.
• Mr X chased the Council about school C in July 2022. He stated Y had a positive trial day and wanted to attend. The Council contacted school C who confirmed it could meet Y’s needs.
• The OT and SALT service discharged Y in August 2022. Mr X was told the therapists had not been provided with authorisation for sessions for the following academic year. Mr X said he was unaware of this and wanted further information. I have not seen evidence this was responded to.
• Mr X continued to contact the Council throughout August 2022 to request an update regarding his stage three request, Y’s school and her therapy. The Council responded at the end of August and said any issues about the education or therapy is school B’s responsibility. The Council also stated Mr X did not request his complaint was escalated to stage three.
• Mr X contacted the Council again in September 2022. He stated Y had been due to start school C, who had offered her a place and she was keen to attend but the Council had delayed taking the request to a panel meeting for approval. Mr X stated Y had only received 90 mins of education per week for seven months and none was with a teacher. He also complained the EHCP was three years out of date. The Council confirmed school C was not an option for Y, as due to a critical Ofsted report a senior Council officer would not place anyone there for now.
• Mr X contacted the Ombudsman in October 2022 to consider his case. The Ombudsman wrote to the Council for information. The Council then wrote to Mr X to say it would review his case at stage three and would arrange a meeting.
• The Council met with Mr X in November 2022. The Council set out action points from the meeting which included the need for Mr X to provide medical evidence Y could not access school. The Council confirmed it would request an education other than at school (EOTAS) placement and it would arrange the OT and SALT provision. The Council then confirmed it would only consider EOTAS when Mr X had provided the medical evidence Y was not able to access education. Mr X responded to say she was fit for school but had not been when she left school B. He stated he could not get historic medical evidence.
• The Council responded to Mr X’s stage three complaint in December 2022. The response confirmed the Council failed to adhere to statutory timescales. The Council offered Mr X £1200 to recognise its failure processing Y’s plan and Mr X’s time and trouble. The response confirmed the Council had experienced significant changes of staffing and it was taking steps to improve the service.
• Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to sort the EHCP and Y’s provision.
• In response to my enquiries the Council stated it expected students to attend school and Mr X had removed Y from school. It stated school had been responsible for education and EHCP provision. The Council continued as Mr X did not provide medical evidence and requested a different school placement it did not consider EOTAS applied. The Council admitted Mr X had experienced delay throughout this case. The Council confirmed it should have taken attendance enforcement action.

My findings

Delay sending notification letters after annual reviews.

• It is clear from the documentation, and the Council has acknowledged, there have been significant delays in this case. The Council has not written to Mr X following the 2021 and 2022 annual reviews to explain if it would amend Y’s EHCP within the statutory timescales. Mr X received the notification letter following the 2021 review after he complained in 2022. The information in the letter was incorrect as the review had recommended Y’s plan was amended. The seven month wait delayed Mr X’s right of appeal to the tribunal until it sent the decision letter in January 2022. The Council has acknowledged this in its stage three investigation and offered a financial remedy. The Ombudsman takes the view that Councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault and has caused Mr X distress and frustration.
• While the financial remedy for not adhering to the statutory timescales is sufficient for Mr X's injustice, it does not address the issue of why the Council has not met the statutory requirements.
• The Council issued its decision not to amend the EHCP in January 2022. This decision carried an appeal right for Mr X. We have exercised discretion to consider matters from January 2022 because although an appeal right was engaged, the Council also indicated it would arrange an urgent annual review. Given this, it was reasonable for Mr X to wait for that review rather than appeal at this stage.
• The Council issued a final EHCP in April 2022. While Mr X claims this plan contains incorrect information, the final plan again engaged Mr X’s appeal rights to the SEND tribunal. The Council continued to name school B in the EHCP and it had confirmed it could meet Y’s needs. Mr X disagreed but the way for him to challenge this was by appealing to the SEND tribunal. The courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the tribunal.

Alternative provision and missed education and therapies

• The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was not attending school in January 2022. It should have ensured Y received education provision from this time or taken steps to secure her attendance. The Council has done neither. Information in this case is contradictory as I have seen correspondence saying no education had been provided or Y received 90 minutes per week. Education is meant to be full time unless this is not accessible to an individual. I have not seen any assessment or documentation explaining why Y received only 90 minutes, if any, per week from January 2022 This is fault and Y has missed education for 13 months. As explained at paragraph 15, once an appeal right is engaged we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education for three months from January 2022 until the Final EHCP was issued in April 2022.
• The Council’s response to the Ombudsman sets out its expectations that children attend school and says Mr X chose to remove Y from school. The Ombudsman expects Council’s to evidence strategies being used to re-engage children back to school. The Council has not evidenced it has done this so it is reasonable to assume it knew Y would not be attending and accepted the reasons why. The Council’s failure to ensure Y received education provision from January to April 2022 is fault. Y has missed out on education for 13 months. But, as detailed above, we can only remedy missed education for three months.
• It appears from the complaint correspondence, and in its response to our enquiries, the Council has fundamentally misunderstood its legal duties to arrange suitable education in these circumstances. The Council cannot delegate its duty to arrange suitable education for Y to a school.
• It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
• The Council did not ensure Y was provided with an education suitable to her ability. This is fault and has led to Y missing out on education.
• I have seen a log of when therapy happened up until April 2022 that school B arranged. I am satisfied Y received the OT and SALT provision she was due to receive from January 2022 until April 2022. We cannot consider therapy provision beyond April 2022 as this is inextricably linked to matters Mr X could have appealed to the SEND tribunal. Mr X could have appealed the placement, where the provision would be delivered, as he disagreed that school was suitable.
• It is clear from documentation, and the Council has acknowledged, communication with it has been difficult. Mr X has experienced delays throughout this case. The Council has accepted the delays and offered Mr X a payment in recognition of this.
• It took for the Ombudsman to write to the Council to confirm its position regarding the complaint and for it to start its stage three investigation. This is fault and Mr X was frustrated by this delay. Our intervention should not have been necessary.
• Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
• The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
• When a young person has missed education because of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
• The Council did not provide any suitable education from January 2022. Y missed 13 months of education. However due to Mr X’s appear rights being engaged in April 2022, we can only consider this until April 2022. The Council not providing suitable education is fault and Y has missed out on suitable education.

Agreed action

• To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed take the following action within 4 weeks of my final decision:
• Apologise to Mr X and Y for not ensuring Y was provided with appropriate education and for the delays in the EHCP and complaints process.
• In addition to the money offered in the stage three complaint response for the EHCP paperwork delays after the annual reviews and time and trouble, pay Mr X £900 for not providing education from January 2022 until April 2022. This money should be used for Y’s benefit.
• Issue a briefing to ensure staff are aware of the Councils statutory obligation and those of the school as detailed in the Education Act 1996 to ensure a child receives a suitable education if they are unable to attend school.
• Remind all relevant staff of the need to ensure all complaints complete the complaint process fully and requests for escalation to the next stage of the process are actioned without delay.
• The Council should take the following action within three months of my final decision:
• Review its procedures and provide guidance to its staff to ensure decisions made to maintain, amend or cease EHCP’s following reviews are issued within the statutory timescales.
• Review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
• The Council should provide evidence of the actions taken to satisfy the recommendations.
• I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X and Y.

I have not investigated any matters in this case prior to June 2021. This is when the annual review was held but Mr X did not receive the paperwork for until January 2022. I will not investigate matter before June 2021 as I have seen no good reason Mr X could not have complained to us sooner.

Investigator's decision on behalf of the Ombudsman

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A zero sum game?

Eotas and suitability.

• January 21, 2022

Ilona Roberts and Bethany Hutchison consider the issue of ‘suitability’ in light of a recent EOTAS (‘education otherwise than at school’) case.

Under the Education Act 1996, local authorities (LAs) have a duty to ensure the suitable education of all compulsory school aged children. For the majority of children and young people, this will take place in school. But what does a ‘suitable’ education look like when it comes to children whose special educational needs and disabilities (SEND) mean that attendance at a formal school setting is inappropriate?

For some families, Elective Home Education is an answer to this challenge. However, for many parents, the financial and logistical complications of providing for their child’s SEN, discounts this option. One viable alternative is EOTAS, or ‘education otherwise than at school’. Where it is deemed inappropriate for a child to be educated in a formal setting, this provision allows an LA to arrange for a child or young person with SEND to be educated by way of a suitable alternative (s 61, Child and Families Act 2014).

Yet as anyone who works for an LA knows, each child’s needs are different and what is ‘suitable’ for one individual may not be for another. Examination of a recently published case, R (Q) v Staffordshire CC [2021] EWHC 3486 (Admin), highlights how contentious the issue of ‘suitability’ can be.

R (Q) v Staffordshire CC concerns the suitability of the education provided to “Q”, a five-year-old boy with SEND. On becoming eligible for a school place in September 2020, Q initially attended a local mainstream school. Within a month of starting however, it became apparent that his attendance was inappropriate; the staff could not meet his needs and his behaviour culminated in his assaulting another pupil, resulting in exclusion from the school.

From January 2021, school staff arranged for Q to attend VIP Stop Gap, a temporary facility which provides occupation, activity and learning for children who are struggling in school, which Q attended part-time. Q’s behaviour continued to be very challenging, including being temporarily excluded for assaulting an adult at the facility.

In May 2021, on request by the school, the LA began a statutory assessment of Q’s needs. It was not until September 2021 that Q, through a solicitor, first complained about the educational provision, but the action was taken no further on reassurance that work to address the issues was ongoing and a judicial review would be premature.

While this process was ongoing, Q’s behaviour improved significantly, leading a manager of VIP Stop Gap to come to the view that a generic special school would be appropriate for Q’s needs. This led the LA to obtain a further educational psychologist report and widen their search for a placement.

In October 2021, Q’s judicial review claim against the LA was issued alleging a breach of s 19 of the Education Act 1996 and claimed damages for an alleged breach of article 2 of the First Protocol to the European Convention on Human Rights.  The claim also sought interim relief in the form of an order that “within 7 days of this order, the Defendant must provide suitable, full-time education that meets the Claimant’s needs.” Interim relief was not granted.

By the time of the substantive hearing in December 2021, an appropriate placement had been found, and accepted by Q’s parent; he was due to start there in January 2022.

We focus in this article primarily on the first ground: the alleged breach of section 19 of the Education Act 1996 (EA 1996).

Legal implications for the question of ‘suitability’ in EOTAS cases

Section 19 of the EA 1996 imposes a duty on LAs to “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”. It is the basic safety net provision which ensures all children receive a suitable education of one sort or another. What is ‘suitable’ means “efficient education suitable to his age, ability and aptitude and to any special educational needs he may have” (s 19(6) EA 1996).

For Q, then, the question was whether the LA failed to provide ‘suitable’ education under s 19. Q alleged that VIP Stop Gap was not suitable because it did not employ qualified SEND teachers, nor did it employ a dedicated SENCO. Additionally, it was part-time, and Q had been entitled to full-time provision since September 2020. In addition, the claimant also submitted that VIP Stop Gap was not providing ‘education’; it was instead akin to ‘merely playing’ or childminding.

Kerr J did not accept the submission that to be suitable, EOTAS provision had to be ‘equivalent’ to the education that could be provided in a school setting. In deciding this issue, Kerr J was directed by the LA’s counsel to Bevan v Shears [1911] 2 KB 936, a case which allowed for magistrates to find that a child was receiving suitable home education without deciding it was as efficient or in other words, ‘equivalent’ to that which he would be receiving in a school setting. In short, ‘suitability’ does not always equal equivalence to education in a school.

Secondly, Q’s allegation that the part-time nature of VIP Stop Gap’s provision rendered it a breach of duty to provide a suitable education was dismissed. Kerr J accepted the LA’s submission that Q’s attendance level was “determined by reference to what it is considered he can cope with” (paragraph 46). Under this determination, part-time provision was appropriate and suitable, with no statutory duty to formally assess to that effect. Kerr J held that this provision was suitable and was a ‘good start’ in responding to a very difficult educational problem.

Thirdly, the content of VIP Stop Gap’s daily schedule was cited by Kerr J as evidence of educational value; VIP Stop Gap provided a timetable indicating that from September 2021, Q was attending classes such as maths, art therapy and IT skills, as well as ‘personal interaction’. This led to Kerr J’s comment that Q’s time at the VIP Stop Gap placement was not “provision of unsuitable education’, and “still less that it was not education at all”. He stated, “I am satisfied that it was education otherwise than at a school within section 19” (paragraph 52).

Finally, and importantly, Freedman J at an earlier hearing found that were he to order the LA to place Q in a school within 7 days, as was requested by the claimant, he would be concerned about the likelihood of placing the LA at risk of contempt given the infeasibility of compliance. Ultimately in this case, Kerr J judged that, albeit temporary, a suitable EOTAS placement had been found by the LA while they looked at more permanent options for Q; the suggestion that the LA had not acted in a timely manner was also rejected.

Key lessons for LAs

This case highlights some key takeaways for LAs, particularly with regards to the importance of rigour and timeliness in the EHCP process. By assessing and amending Q’s EHCP throughout the search for a permanent placement, a ‘suitable’, permanent, special school for Q was ultimately found, and agreed by his parents.

Suitability of a future placement, therefore, could only be determined by the outcome of the EHCP process after formal assessment of Q’s needs had taken place. It is also at the conclusion of this process that the right of appeal to the FTT is triggered, which Kerr J argued would have been a more appropriate arena for a dispute of this kind. In the interim, the documenting of evidence of decision making is key; evidence of VIP Stop Gap’s provision played a key role in finding that the LA was not in breach of their duty to provide suitable education for Q.

However, the outcome of an application for permission to appeal is awaited; evidently, issues of suitability remain contentious.

Ilona Roberts and Bethany Hutchison are Paralegals at LASEN Ltd. LASEN host regular online training for local authority SEND and EHCP officers. For more information, local authority employees will need to become members of LASEN at https://www.lasen.co.uk .  LASEN membership is free of charge but only open to local authority employees.

This article is written for general information purposes. It does not constitute legal advice and should not be relied on as such.

• Practical Law

Section 19, Education Act 1996

Practical law primary source 2-511-6810  (approx. 1 page).

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• Original: King's Printer Version

Changes over time for: Section 19

Version Superseded: 25/03/2020

Alternative versions:

• 01/11/1996 - Amendment
• 01/09/1998 - Amendment
• 02/07/2007 - Amendment
• 01/09/2007 - Amendment
• 01/09/2011 - Amendment
• 18/05/2012 - Amendment
• 25/01/2018 Point in time
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• 30/04/2021 - Amendment
• 01/09/2021 - Amendment
• 09/12/2021 - Amendment
• 01/01/2022 - Amendment
• 25/03/2022 - Amendment
• 01/09/2022 - Amendment
• 25/09/2022 - Amendment

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19 Exceptional provision of education in pupil referral units or elsewhere. E+W

(1) Each [ F1 local authority ] shall make arrangements for the provision of suitable F2 . . . 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.

[ F3 (1A) In relation to England, subsection (1) does not apply in the case of a child—

(a) who will cease to be of compulsory school age within the next six weeks, and

(b) does not have any relevant examinations to complete.

In paragraph (b) “ relevant examinations ” means any public examinations or other assessments for which the child has been entered. ]

(2) Any school established (whether before or after the commencement of this Act) and maintained by a [ F1 local authority ] which—

(a) is specially organised to provide education for such children, and

(b) is not a county school or a special school,

shall be known as a “ pupil referral unit ”.

[ F4 (2A) Subsection (2) does not apply in relation to schools in England.

(2B)   Any school established in England (whether before or after the commencement of this Act) and maintained by a [ F1 local authority ] which—

(b) is not a community or foundation school, a community or foundation special school, or a maintained nursery school,

shall be known as a “pupil referral unit”. ]

(3) A [ F1 local authority ] may secure the provision of boarding accommodation at any pupil referral unit.

[ F5 [ F6 (3A) In relation to England, the education to be provided for a child in pursuance of arrangements made by a local authority under subsection (1) shall be—

(a) full-time education, or

(b) in the case of a child within subsection (3AA), education on such part-time basis as the authority consider to be in the child's best interests.

(3AA) A child is within this subsection if the local authority consider that, for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided for the child. ]

(3B) [ F7 Regulations may provide that the education to be provided for a child in pursuance of arrangements made by a local authority in England under subsection (1) ] must be provided from a day that, in relation to the pupil concerned, is determined in accordance with [ F8 the regulations ] . ]

(4) A [ F1 local authority ] may make arrangements for the provision of suitable F2 . . . education otherwise than at school for those young persons 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.

[ F9 (4A) In determining what arrangements to make under subsection (1) or (4) in the case of any child or young person a [ F1 local authority ] shall have regard to any guidance given from time to time by the Secretary of State. ]

(5) Any child for whom education is provided otherwise than at school in pursuance of this section, and any young person for whom full-time education is so provided in pursuance of this section, shall be treated for the purposes of this Act as a pupil.

[ F10 (6) In this section—

“ relevant school ” means—

a maintained school,

an Academy,

a city technology college, or

a city college for the technology of the arts;

“ suitable education ”, in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have (and “suitable full-time education” is to be read accordingly). ]

(7) Schedule 1 has effect in relation to pupil referral units.

Textual Amendments

F1 Words in Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158) , Sch. 2 para. 7(2) (with Sch. 2 para. 7(4) (5) )

F2 Words in s. 19(1) and (4) repealed (1.9.1998) by 1997 c. 44 , ss. 47(2)(3) , 57(4) , Sch.8 ; S.I. 1998/386 , art. 2 , Sch. 1 Pt. IV

F3 S. 19(1A) inserted (1.9.2011) by Children, Schools and Families Act 2010 (c. 26) , ss. 3(2) , 29(5) (with s. 27 ); S.I. 2011/1100 , art. 2

F4 S. 19(2A)(2B) inserted (2.7.2007) by The Education Act 1996 (Amendment of Section 19) (England) Regulations 2007 (S.I. 2007/1507) , regs. 1 , 2

F5 S. 19(3A)(3AA) substituted for s. 19(3A) (1.9.2011) by Children, Schools and Families Act 2010 (c. 26) , ss. 3(3) , 29(5) (with s. 27 ); S.I. 2011/1100 , art. 2

F6 S. 19(3A)(3B) inserted (1.9.2007) by Education and Inspections Act 2006 (c. 40) , ss. 101(2) , 188(3) ; S.I. 2007/1801 , art. 4(g)

F7 Words in s. 19(3B) substituted (1.9.2011) by Children, Schools and Families Act 2010 (c. 26) , ss. 3(4)(a) , 29(5) (with s. 27 ); S.I. 2011/1100 , art. 2

F8 Words in s. 19(3B) substituted (1.9.2011) by Children, Schools and Families Act 2010 (c. 26) , ss. 3(4)(b) , 29(5) (with s. 27 ); S.I. 2011/1100 , art. 2

F9 S. 19(4A) inserted (1.9.1998) by 1997 c. 44 , s. 47(4) ; S.I. 1998/386 , art. 2 , Sch. 1 Pt.IV

F10 S. 19(6) substituted (1.9.2007) by Education and Inspections Act 2006 (c. 40) , ss. 101(3) , 188(3) ; S.I. 2007/1801 , art. 4(g)

Modifications etc. (not altering text)

C1 S. 19 excluded (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41) , ss. 36(5)(c)(10) , 162 (with s. 159 )

C2 S. 19(3A) modified (18.5.2012) by The Wiltshire Council (Arrangements for the Provision of Suitable Education) Order 2012 (S.I. 2012/1107) , arts. 1(2)(a) , 6(2) (with art. 5 )

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