Duty to Educate

What the Law says:

The Education Act 1996 states that parents and carers must ensure that all children of compulsory school age (5 to 16 years) receive a full-time education that is suitable for their age, ability and aptitude and special educational needs.

Children must be educated from the commencement of the school term following their 5th birthday, until the last Friday in June of the school year in which they reach their 16th birthday.

It means that your child should not have sessions of unauthorised absence during term times therefore your child should attend school regularly unless he or she is ill or the school has authorised their absence.

Why do I have to go to school to learn? 

Many children and young people find school or college inaccessible for a variety of reasons, including disability, anxiety, post-viral fatigue, ill with unknown origin.  There seems to be a lot of confusion around how these events are recorded and how education should be provided so here is the legislation:

Section 9, Education Act (1996)

General principle is that children 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’). Section 9 also allows for a parent to request from the LA a place at one school over another 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, if for example the school is an expensive, fee-paying boarding school.

“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”.

Section 19, Education Act (1996)

This means that 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 and/or disabilities (SEND) 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 i.e. 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):

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”.

There can be confusion within some schools about how to record such absences on school registers, some use unauthorised absence whilst others use ‘medical’. Some children end up on part-time timetables or given a few hours of e-learning per week.

“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, the LA 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”.

A child attending intermittently may be well-supported by their school but 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).

Where to go:

Where should you go if your child is highly-anxious and cannot face another day at school? A referral to the Child and Adolescent Mental Health Services (CAMHS) may be made, but often the waiting list is extremely lengthy.  To do this go to see your GP in the first instance for a referral but referrals can be made by all health, education and social care practitioners so you could go to your child’s teacher. It is recommended that referrals for assessments for neurodevelopmental conditions, including ASD and ADHD, are made by someone with day to day knowledge of the child, for example through schools via the school SENCo. All children and young people need to be registered with a GP to be able to be referred to Mindsight Surrey CAMHS.

Pieces of Law:

Children and Families Act (2014), Section 42:

Children with Education, Health and Care Plans (EHCP) have further protection under this section:

“The local authority must secure the specified special educational provision for the child or young person”.

If your child’s needs have changed significantly, you can ask the LA for a statutory re-assessment of needs (see our Information Sheet).  The LA has 15 days to agree or disagree to that request. 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 Tribunal.

Children and Families Act (2014), Section 66:

This is also 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”,

(See our Information Sheet on Best Endeavours).