Section 19 of the Education Act 1996 places a duty on local authorities (LA) 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 a suitable education unless such arrangements are made for them.’
‘Local authorities are responsible for arranging suitable full-time education1 for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such provision. This applies to all children of compulsory school age resident in the local authority area, whether they are on the roll of a school, and whatever type of school they attend.’
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Defined in 2023 statutory guidance as ‘where possible, equivalent to the education they would receive in a mainstream school'.
This policy and process sets out Bracknell Forest’s approach to meeting the needs of children and young people (CYP) for who it has a legal responsibility to provide an education, but who for reasons relating to illness, exclusion or otherwise experience barriers to accessing a full and suitable education offer, despite Bracknell Forest’s Graduated Approach having been mobilised and reasonable adjustments required under the Equality Act 2010 being exhausted.
The Department for Education’s (DfE) alternative provision statutory guidance for local authorities’ states the term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have. The education to be arranged by the LA should be on a full-time basis, unless, in the interests of the child, part time education is considered to be more suitable. This would be for reasons relating to the child’s physical or mental health. Education Act 1996 paraphrased by the Local Government Ombudsman.
It is important to recognise that Bracknell Forest Council’s responsibilities in relation to their Section 19 offer differ slightly for those with an education health and care plan (EHCP) and for those without an EHCP. These differing responsibilities are as follows:
Child without an education health and care plan:
- the LA where a child resides is responsible for S19
- if the child resides between different addresses in a split family, the decision is made on where the child spends most of their time and this LA has the S19 responsibilities (clarified upon notification)
- if the child ordinarily resides 50/50 in two LAs, then both LAs can discuss and agree sharing the responsibilities for S19 provision - if an agreement cannot be reached, then the LAs can write to the Secretary of State for a decision
Child with an education health and care plan:
- the LA who is responsible for maintaining the EHCP is responsible for maintaining their provision - this includes Section 19 provision
- even if a school in another LA is named, the LA responsible for maintaining the EHCP is responsible for the Section 19 provision1
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Bracknell Forest Council is following the guidance in annex 3, section 18 of the 2023-24 High Needs Operational Guidance.
The guidance in section 18.1 states: ‘When a local authority places a looked after child with an EHCP in another local authority’s area (for example, with foster parents), the local authority where the looked after child lives (is wholly or mainly resident) becomes responsible for maintaining their EHCP (including paying any top-up funding), in the same way as any child or young person who moves from one local authority’s area to another.’
The Section 19 duty placed on local authorities’ and detailed in this policy relates to those of compulsory school age – CYP aged 5 – 16 (from the school term after a child’s fifth birthday, until last Friday in June of the school year they turn 16). The Out of School, out of sight publication (2022) states: ‘where a child cannot go to school, the local authority must find out why’.
To support the local authorities’ duty (detailed in 1.5) The home school has a duty (regulation 12(1) (a) of the education (pupil registration) (England) regulations 2006 to provide to the local authority, at agreed intervals, the full name and address of any pupils of compulsory school age who are not attending school regularly (including due to their health needs). This is also outlined in the ‘Working together to improve school attendance’.
The Education Act 1996 also places a duty on schools to provide education in the interim period while an assessment of need is undertaken to inform the LA’s Section 19 offer, this can be provided through remote education provision as a soon as reasonably practicable.
Where the local authority offers (based on an assessment of need) an alternative education that it deems to be reasonably practicable for that CYP, it is not under a duty to provide further alternative education because the child is not taking advantage of that facility. Parents should be aware that it is their duty under Section 7 of the Education Act 1996, to secure an education for children of compulsory school age, which in this circumstance is available.
Parents of every child of compulsory school age are encouraged to understand that they hold the primary responsibility, under Section 7 of the Education Act 1996, to make sure their child receives an efficient, full-time education that is suitable for their age, ability, aptitude, and any special educational needs they may have. This responsibility can be fulfilled either by enrolling their child in a school and supporting their regular attendance or by arranging and self-funding elective home education.
It is important to note that choosing elective home education means parents take on the responsibility for providing this education themselves, as the local authority is not required to deliver or fund such provision. However, if the local authority determines that a child receiving elective home education is not receiving an adequate and suitable education, they may issue a school attendance order. This order would require the parent to register their child at a school by a specified date to make sure the child’s educational needs are met effectively.