Pupils with SEND - Out of school; what are their options?

Pupils with special educational needs and disabilities (SEND) are legally entitled to attend school along with their peers. Compulsory school starting age for all pupils is 5 years old [1] and they must remain in school full-time until the end of the summer term they turn 16 years old. Until age 18, pupils must either:

• stay in full-time education, for example at a college, or;
• start an apprenticeship or traineeship, or;
• spend 20 hours or more a week working or volunteering, while in part-time education or training. [2]

However, what happens if a pupil with SEND finds themselves unable to go to school; what are their and their parents’ options?

Here we will consider potential reasons why a child or young person with SEND and of compulsory school age might be out of school, what should happen next, and whose responsibility it is:

Medically Unfit to Attend School

If a child or young person is struggling to attend school at all or full-time, potentially because of a medical reason e.g., anxiety, then they might be classed as medically unfit to attend school. This would require supporting evidence from a medical professional, usually a paediatrician or GP. This evidence would need to be provided to both the local authority and school. The local authority would need to accept this evidence and confirm if the child or young person is officially medically unfit to attend school. Once confirmed, and it is understood the child or young person will not be in school for a total of 15 days, the local authority has a legal duty under Section 19 Education Act 1996 to:

1. … 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…may not for any period receive suitable education unless such arrangements are made for them.

Guidance sets out that the local authority must “…arrange suitable full-time education (or as much education as the child’s health condition allows)…” [3] What is classed as “full-time” depends on the age of the respective child or young person. The arrangements and delivery of the education must be individualised. The aim is for these pupils to not only maintain their education and progress but to also, if possible, return to a school setting.

Electively Home Educated

Parents are legally entitled to make their own arrangements for their child’s education e.g. teaching them at home. This means the child needs to be off the school roll as necessary.

“Where a child or young person is a registered pupil and the parent decides to home educate, the parent must notify the school in writing that the child or young person is receiving education otherwise than at school and the school must then remove the pupil's name from the admission register. If the school is a special school, the local authority must give consent for the child's name to be removed, but this should not be a lengthy or complex process. There is no provision in law for a ‘trial period’ of home education”. – Paragraph 10.33, SEND CoP 2015

If the child has an EHCP in place, then their parents continue to be solely responsible for their education. This means that the local authority would be relieved of their duty to provide any educational provision in Section F. Parents must therefore think very carefully before committing to this option. The EHCP would continue to be reviewed at least annually, and if the Section F provisions detailed are required. If, during Elective Home Education, parents want to request the local authority meets its statutory duty to fund and deliver this provision i.e. through EOTAS (which will be covered in the next paragraph) then they would need to gather evidence to put forward for a review.

Education Otherwise Than At School

EOTAS is the abbreviation of Education Otherwise Than At School. It is the term used for pupils who a) have an Education, Health, and Care Plan (EHCP) and b) it would be inappropriate for them to attend any educational institution. These are often pupils who struggle to access education in an educational institution. This may be due to the sheer size and noise of the classroom, the way lessons are taught, or having to navigate and respond to the developing social rules and behaviours exhibited by their peers. This description suggests a mainstream school but often pupils have attended both mainstream and specialist placements and remain unable to access learning in either type of setting.

The law around EOTAS is under Section 61(1) of the Children and Families Act (2014) (known as CFA 2014) as follows:

1. A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school….
2. An authority may do so only if satisfied that it would be inappropriate (emphasis added) for the provision to be made in a school...
3. Before doing so, the authority must consult the child's parent or the young person.

If EOTAS is agreed in an EHCP then this will need to be detailed in Section F. If any part of this provision is to be delivered through a school setting, but not in a standard classroom set up, then Section I must name that placement too. In all other cases, Section I is to remain blank.

The specific practicalities of an EOTAS package would need to be discussed and agreed between the child or young person’s parents and the local authority, as well as the respective therapists/specialists/teachers due to deliver the provision.

The important distinction between EOTAS and Elective Home Education is that, in the former, the local authority remains legally responsible for that child or young person’s education out of school. This is why it is essential to consider the evidence as to why the child or young person is not able to attend school; is it because their parents simply do not want them to, or is there an underlining reason, such as anxiety.

Exclusion

There are two types of school exclusions, and any exclusion must be lawful, proportionate and fair [4] The NCB, ASCL and IPSEA joint guidance “School exclusions: what is legal?” [5] has informed this section and can be accessed via the footnote. To summarise, the two types of exclusions are:

• Fixed term/temporary exclusion – when a pupil is temporarily removed from school site due to disciplinary reasons. For the first five days, their school must provide and mark work and the arrange suitable full-time education once five days has passed. 45 days per year is the maximum that a pupil can be subject to a fixed term exclusion. The pupil remains on the school roll.
• Permanent exclusion – where a pupil is removed both from the school roll and the school itself. As per fixed term exclusions, full-time education needs to be in place after the fifth day, but here it is the local authority’s responsibility to arrange.  Parents have a right to request the exclusion goes through an independent review process; during this time, the pupil needs to remain on the Admissions Register.

Anything other than above i.e. an informal exclusion or part-time timetable is not following guidance and law. The latter may sometimes be required as, for example, part of a child’s move to a new setting. Generally, however, and as noted above, pupils are entitled to receive a suitable full-time education i.e. not part-time.

If a pupil has an EHCP, and receives either type of exclusion, their parents should consider requesting an urgent/interim Annual Review to address any additional support required in Section F, the named placement in Section I and if it can meet needs.

It is important to seek specialist legal advice if considering, or in, any of the above situations. Boyes Turner Education Team are available on 0118 467 6547 on senexpertsolicitors@boyesturner.com