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The right to a suitable education: what the law says

View profile for Kimberley Hircock
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The right to a suitable education: what the law says

What are the duties of local authorities in relation to providing education to children?

Section 7 of the Education Act 1996 states that parents who have children of compulsory school age must secure an education for them and that the education must be suitable for their:

  • Age
  • Ability
  • Aptitude
  • any special educational needs that they may have

The education can be obtained either by regular attendance at school or otherwise. This means that parents can opt to home educate their children if they wish, provided they can show the criteria is being met (i.e. that the education is suitable for the child’s age, ability and aptitude and any special educational needs).

For those parents who want their children to attend school

Section 19 of the Education Act 1996 states that each local authority must make arrangements for 

  • the provision of suitable education 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 arrangements are made for them. 

A local authority does not have to comply with the duty under section 19 of the Act, if a child is to cease to be of compulsory school age within the next 6 weeks and does not have any public examinations to complete.

What is “compulsory school age”?

A child is of compulsory school age from the beginning of the term following their 5th birthday until the last Friday of June in the year in which they become 16, provided that their 16th birthday falls before the start of the next school year.

What should education provided by the Local Authority look like?

Section 19 of the Education Act 1996 states that the education has to be full-time. 

If the child is considered to have a physical or mental health need, that would mean it is not in the child’s best interests to attend full-time education, education can be provided on a  part-time basis. 

The education has to be an efficient education suitable to his or her age, ability and aptitude and to any special educational needs that a child may have.

What are the difficulties that arise when the Local Authority does not provide suitable education

In February 2022 the Local Government and Social Care Ombudsman released its decision into an investigation carried out involving a child who has special educational needs. 

The Council had failed to provide the provision stated within the child’s EHCP and to provide a suitable alternative provision in the interim.

Ms A’s son, Child X, has severe disabilities and special educational needs and in September 2018 he was transitioned to a school that could provide him with further support for his needs. 

Unfortunately, Child X struggled with the transition and was excluded on a fixed term basis several times over a five-month period, the last occasion being March 2019. 

An annual review of the EHCP was held in March 2019 but the parties were unable to agree on an educational establishment to be named in the EHCP. 

The Council therefore issued a final EHCP in November 2019 naming the school that the child was excluded from. This was challenged at the Tribunal by Ms A and she requested a residential placement for Child X. 

The Tribunal did not agree with this residential placement but confirmed that the current placement was not suitable for Child X. Instead, the Tribunal named a type of provision required for Child X.

Following the decision, the Council proposed the same school but with a specialist outreach package of support. Ms A declined this in light of the previous experiences at the school.

The Council consulted with various schools but could not find appropriate provision. Ms A complained to the Council about its failure to provide a placement, but this was not responded to although it was acknowledged a complaint had been lodged. 

It was not until January 2022 that a placement was proposed for September 2022, with interim education of 2 sessions a week at a local social care setting in place until that time.

In light of the Council failing to provide suitable provision for 14 months, it was deemed that this fault by the Council had caused significant injustice to the child and it was ordered to pay £9000 as a recognition of lost provision for Child X and distress caused by the Council failing to consider the complaint.

The full report can be found here: 21 005 548 - Local Government and Social Care Ombudsman

If you would like advice or assistance with anything related to the above please contact Kimberley Hircock on 01245 453803 or at kimberley.hircock@birkettlong.co.uk

 

 

 

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