Introduction
We will follow national legislation and guidance when determining how to discharge our duties.
The responsibility to provide for children with an education suitable for their age, ability and aptitude falls upon all stakeholders, including:
- parents and carers
- the local authority
- support agencies
- health colleagues
- education providers
Lincolnshire Children's Services delivers the duties set out in the statute. They do this by working in partnership with:
- parents
- maintained schools
- academies
- their governing bodies or board of trustees
- independent settings
- health professionals
It is for us to determine that a child will not receive a suitable education unless arrangements are made for them. We must also consider our wider duties and responsibilities.
Legal framework
Section 100 of the Children and Families Act 2014 places a duty on governing bodies of:
- maintained schools
- proprietors of academies
- management committees of pupil referral units (PRUs)
This duty ensures they make arrangements for supporting pupils at their school with medical conditions. The statutory guidance, supporting pupils at school with medical conditions, has been produced by the DfE. It assists schools in understanding and implementing this legislation. There is additional guidance on arranging education for children who cannot attend school because of health needs. This guidance sets out how schools can best support children who cannot attend school because of physical or mental health needs.
Section 19 of the Education Act 1996 imposes a duty on local authorities to make arrangements to provide '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'.
Suitable education is defined as "efficient education suitable to the age, ability, and aptitude, and to any special educational needs the child or young person may have."
The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a local authority has a duty to provide alternative education under section 19. This duty applies only if there is no suitable education available to the child which is 'reasonably practicable' for the child to access.
Section 7 of the Education Act 1996 places a legal responsibility upon parents and carers to ensure that their child receives an education that is:
- appropriate
- full-time
- effective (suitable to their educational needs)
In England, most parents fulfil this responsibility by:
- putting their child on a school roll
- ensuring that they attend regularly
However, if a child who is on a school roll fails to attend regularly, it is possible that the parents will have committed an offence contrary to section 444 Education Act 1996.
We may believe that a child of compulsory school age is not:
- a registered pupil
- receiving a suitable education
In such cases, under section 437 of the Education Act 1996, we can serve a notice in writing to the parent. This requires them to prove that the child is receiving a suitable education. If we are not satisfied, we can apply for a school attendance order (SAO).
The Special Educational Needs (SEND) Code of Practice 2015 sets out clear guidance to schools and local authorities. It explains their duty to identify and support pupils with long-term barriers to their learning. This includes pupils with disabilities and health needs. This duty applies both to pupils with and without an education health and care (EHC) plan.
The Equality Act 2010 prohibits schools from discriminating against disabled children for a reason related to their disability. Many children with significant long-term health needs may meet the definition of 'disability'. They must be afforded the legal protection to which they are entitled, particularly the duty to make reasonable adjustments.