Section 19 of the Education Act 1996 places a duty on Local Authorities (LA’s) to make suitable alternative education for children of statutory school age who cannot attend school because of illness, exclusion or for any other reason.
If a child is permanently excluded the LA must provide 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 or the child refusing to go to school, the section 19 duty will arise.
The case of R (on the application of Y) v Croydon LBC  E.L.R. 138 provides a good example of this. The child in this case was refusing to attend school despite the parent making many attempts with professionals to get him back in to school.
If it can be shown that it is not reasonably practicable for the child to attend, then the LA’s duty to provide suitable alternative education arises. In situations like this it is important that the parent makes every effort to work with the school and LA to facilitate their child’s attendance at school.
The parent brought urgent judicial review proceedings against the local authority (“LA”) for failing to provide a suitable education for her son contrary to s. 19(1) Education Act 1996, which states:
“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.”
This law remains in force, and so although this case concerned a child with a Statement it remains relevant to children with EHC plans and other children who are unable to attend school.
The claimant was a 13 year old boy with severe learning difficulties, autism and behavioural difficulties. He was enrolled at a maintained special school against his parent’s wishes. When his behaviour deteriorated and his mother was having difficulties getting him to school, she requested that the LA amend his Statement of special educational needs to specify that he should attend a different school. That request was refused and the mother’s appeal to the First-tier Tribunal was unsuccessful. Permission was granted for an appeal to the Upper Tribunal.
In the meantime, judicial review proceedings were commenced as attempts to persuade the claimant to go to school had failed, despite assistance from the LA’s family liaison officers. His behaviour deteriorated resulting in violence towards his mother and others, and persistent refusal to leave the house. This behaviour was corroborated by the head teacher and other professionals. It was argued that it was not reasonably practicable for him to attend the maintained special school at which he was enrolled.
The LA was found to be in breach of its obligations under s. 19 of the Education Act. The question of what education was suitable for a child was primarily one for the local education authority to determine in the light of the child’s Statement of special educational needs. In the event of representations that that Statement was no longer appropriate, the statutory procedure required an assessment to take place. A parent who did not accept the outcome of that assessment had a right of appeal to the First-tier Tribunal. The claimant’s mother had exercised that right. For the purposes of the instant hearing, it was not possible to go behind the LA’s determination, upheld by the First-tier Tribunal, that the P school offered suitable education for the claimant. However, it was recognised that it might be reasonable for a child to be withdrawn from school in certain circumstances other than illness or exclusion, such as to prevent him from being subjected to bullying. The question of whether the education provision was one which it was reasonably practicable for the child to receive was, again, one for the LA to determine in the first instance, albeit subject to review with close scrutiny by the court.
In the instant case, since the LA’s efforts to assist the mother in getting the claimant to school had failed without any further plan being put forward, it was not reasonably practicable for him to attend the LA school at which he was enrolled. There was no evidence that the claimant’s mother had been failing to co-operate with the attempts to get him to school, it followed that the LA was in breach of its duty under s.19.
Since it was not for the court to decide what arrangements should be made to provide suitable education for a child, the LA had to decide what steps were needed in order for it to fulfil its legal obligations. The LA had to recognise that its duty under s.19 not only required arrangements to be made to ensure that the claimant received suitable education on a long-term basis, but also required suitable education to be provided straight away”.