There is cohort of children with special educational needs and disabilities that is increasing in visibility. These are highly sensitive children, often with neuro-developmental differences such as autism, ADHD, dyslexia or other such diagnoses, who are being traumatised by the current mainstream school environment. The ongoing trauma they experience as a result of an overwhelming environment and unidentified or unmet special educational need all to often results in their inability to attend school.
A recent decision by the Local Government Social Care Ombudsman looking at just such a situation strikes at the heart of our idea of justice:
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint.
In plain English: The system admits your child may face an injustice, but acknowledges that a legal loophole means no one is allowed to fix it.
The Law vs the Reality
The law regarding education for children unable to attend school is clear. Section 19 of the Education Act 1996 states:
Each local authority in England 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.
Statutory guidance and case law have detailed exact expectations regarding “full-time” and accessible education. Yet, local authorities (LAs) fail to deliver Section 19 duties on a regular basis—particularly for children with SEND. It is one of the primary reasons parents make formal complaints.
If your child has SEND and cannot attend school, you have two “next steps”:
- Request alternative education under s19
- Request additional assessment and provision under the Child and Families Act 2014 – specifically, an Education, Health and Care Needs Assessment, which may lead to the local authority issuing an EHCP
Given the timelines of each of these processes, it’s important to make both requests simultaneously. Local authorities may avoid their duties under s19 if there is a suspicion of SEND by pointing to the EHCNA process as an alternative. To be clear, an EHC needs assessment is a distinct process that does not preclude a child’s entitlement to suitable education.
How the loophole might trap you
Our loophole appears when the local authority fails to deliver that alternative, suitable education. The proper route of redress is the formal complaints process: a 2 stage internal complaint to the LA followed by escalation to the Ombudsman.
But!
- Local Government Act 1974, section 26(6)(a) does not allow an ombudsman to investigate a matter that is the purview of a tribunal… and
- Case law in 2023 concluded that this included issues of local authority conduct or alleged unreasonableness – read more here.
Increasingly, if there is even the possibility of a SEND Tribunal appeal on the horizon, both LAs and the Ombudsman will simply dismiss your complaint
The system cynically reframes the crisis: they claim you are choosing to keep your child home because you disagree with the placement named in the EHCP, meaning it’s a matter for the Tribunal. At the same time, the Tribunal tells you that s19 is not within its remit. You are caught in a loophole.
My experience is far more complex. These children are not “choosing” to stay home. Nor can we as parents physically manhandle them out of bed and into school – that would be assault (but is never spoken of). They are not attending because they are ill as a result of an inappropriate educational setting. Yet this argument is increasingly harder to make, with local authorities requiring ever more expert medical advice to confirm illness (while dismissing medical opinion of educational provision).
Where do we go from here?
It is my expectation that this will be challenged in court at some point, but I am not a lawyer and this is far outside my remit. As an advocate and consultant in SEND, I need to find that next step that allows a family to move forward in hope.
When formal processes fail or have become so twisted that invoking them is destined to exhaust you with little guarantee of justice, we must pivot back to the simple business of being human: being kind and being fiercely curious.
Pivot back to your original position: curiosity about your child’s difficulties and an understanding of the systems designed to identify those needs and meet them. Gather all the information that makes your case clear and unassailable:
- Build relationships with your school staff, and with the relevant officers at the local authority.
- Gather medical evidence that explains why your child is unable to safely attend school. It is important to focus on the specific barriers – very few children cannot attend any school at all, but many of them are unable to access a large mainstream setting.
- Audit the school’s interventions and approaches. If the school is not working with you, seek advice from your local authority’s school liaison team to try and re-build a working relationship. Find your local “ordinarily available provision” document and check what the school is delivering. Find their EBSNA policy that will detail the support children like yours should be getting.
- While working through the EHC needs assessment process, bring your child’s inability to attend school to their attention and ask how the LA will discharge their s19 duty. Keep on keeping on with respect and curiosity as well as persistent advocacy for your child. Focus on access to learning, reintegration into an appropriate school and functional skills that work towards your child’s greater independence, you will begin to present a case that is very hard to refute.
Mostly, and throughout all of this, you are the guardian of your child’s health (mental as well as physical) and their only true advocate. If they are too unwell to go to school, they cannot attend. The risk of pushing them is too high, including self-harm and suicide.
None of this is quick and delivery of alternative provision is notoriously severely limited and gatekept. The injustice of a system that does not allow for remedy for the most vulnerable families takes my breath away. But it cannot and must not paralyse us so much that we fail to find a way forward for those families.