Back to school should not mean left behind: What if your child hasn't returned?

For many families, September means getting back to routine with fresh school supplies, new timetables, and the morning send off to school.

What happens to those whose children refuse school – sometimes for some considerable period of time? The Covid period has certainly had an impact. Refusal can be linked to special educational needs (SEN).

Local Authorities (LAs) have duties to make sure children don’t go without education.

Under section 19 of the Education Act 1996 (EA 1996), every LA must arrange suitable education for children of compulsory school age who are not in school for any reason, including illness, exclusion, anxiety or lack of a school place. This education should be appropriate for the child’s age and abilities. In most cases, it should be full-time, unless part-time education is clearly better for the child’s situation.

This duty applies whether or not a child has an education, health and care plan (EHCP).

When a child has an EHCP

An EHCP is a legal document setting out the special educational support a child is entitled to. If a child has an EHCP, the LA is legally responsible for making sure the special educational provision in the plan is delivered.

If the child cannot attend their named school, the LA cannot simply wait until things improve. It must arrange suitable education, either by finding another school place or by setting up alternative provision, including home tuition/therapy delivery.

In some cases, children cannot be educated in a school at all. When this happens, families may seek education otherwise than at school (EOTAS), where provision is tailored and delivered outside of the school environment. This is a high threshold measure and not equivalent to home education.

When a child does not have an EHCP

Even if a child doesn’t have an EHCP, the Section 19 EA 1996 duty to provide education still applies.

If parents suspect that their child may have SEN, they should consider a request to the LA to carry out an EHC needs assessment. This is the first step towards getting an EHCP and securing longer-term support. Importantly, while an assessment is being carried out, the duty to arrange education under section 19 does not pause, the child should still be receiving suitable teaching during that time and should be requested at least as an interim measure.

Elective Home Education (EHE) vs Education Otherwise Than at School (EOTAS)

Two terms often get mixed up when talking about children outside of school: EHE and EOTAS. Although they sound similar, they are very different in law.

In EHE, parents choose to take full responsibility for educating their child often at home, but sometimes paying privately for tutoring or an independent school. The LA does not have to provide tutors, resources or funding. Once parents make this choice, the duty to provide education transfers from the LA to the family.

EOTAS is not elective and is only agreed when it is shown that school is not a suitable option for a child. In this case, the LA remains responsible for arranging and funding education in an alternative way, such as tutoring, therapy, online learning and other specialist provisions.

Families may be pressured into “choosing” home education, when in reality they feel they have no other options, which means they may lose opportunities for support they are entitled to.

Every child has the right to an education

Being out of school for weeks, months or even years can have a huge impact on a child’s learning, confidence and mental health. LAs have clear duties and families should not be left feeling isolated or forced into unsuitable choices. If your child cannot return to school, it’s vital to know that they still have the right to an education and that LAs must play their part in making this happen.

We recommend getting specialist legal advice if you have a query around EHCPs. The Boyes Turner Education team can be contacted on 0118 467 6547 or via senexpertsolicitors@boyesturner.com.