Lincolnshire’s section 19 policy

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.

Attendance and definitions

Improving attendance is everyone’s business. Schools must monitor pupils’ attendance:

  • through their daily register
  • in accordance with local protocols

Schools should provide us with the details of pupils who:

Schools are also required to inform us of sickness returns. They must do this by providing us with the full name and address of all pupils of compulsory school age who:

  • have been recorded with code I (illness)
  • the school has reasonable grounds to believe will miss 15 days consecutively or cumulatively because of sickness

This information will enable us to identify pupils of compulsory school age who:

  • are at risk of not accessing a suitable education by reason of illness, exclusion from school or otherwise
  • may not for any period receive suitable education unless such arrangements are made for them

Section 436A of the 1996 Education Act requires us to identify local children not receiving suitable education.

Lincolnshire Children's Services requires schools to register with us any pupils in receipt of 'less than 25 hours' education. This data, along with school attendance data and exclusion data, will be regularly reviewed (minimum of once per term). This will:

  • identify areas of concern
  • highlight any vulnerable pupils 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'

Our officers will organise termly targeted support meetings (TSM) to offer:

  • advice
  • support
  • robust challenge
  • guidance in relation to school and local authority attendance priorities

They will discuss identified groups and, where appropriate, individual children.

Lincolnshire Children's Services believe all children should be supported to learn in their school whenever possible. This includes those with health needs.

If a child is disengaged from learning or not attending, we must ensure reasonable adjustments and support is in place. This includes cases related to mental health and wellbeing. Support should be provided to address the underlying reasons before putting alternative provision in place. 

Definitions

Suitable education

The Education Act 1996 defines a suitable education as one that is appropriate to a child’s:

  • age
  • ability
  • aptitude
  • special educational needs

Full time

Full-time education is not defined in law. However, it should equate to what the child would normally receive in school. This is unless the child’s condition means that full-time provision would not be in their best interests. If a child receives one-to-one tuition, the hours of face-face teaching could be fewer, as the provision is more concentrated.

School

For the purposes of this policy, school is used to refer to any:

  • maintained school
  • academy
  • free school
  • independent school
  • alternative provision school
  • education provision where a child is registered as their main education base

Elective home education

Provision that a parent has chosen for their child outside school. This is not to be confused with home tuition which can be provided by:

  • the school
  • local authority (LA)
  • through alternative provision that has been provided by the school or LA

A medical condition

A physical or mental health need that, without reasonable adjustments, can affect a child's attendance. It may also impact their ability to access the curriculum or school activities.

Disability

A physical or mental impairment that substantially impacts the ability to carry out normal daily activities. For example, depression and anxiety. This may meet the definition of being disabled if:

  • the child has had the condition for more than 12 months
  • it is having a negative impact on their ability to carry out normal daily duties

Under the Equality Act, a child does not need a medical diagnosis to meet the definition.

Section 19: reason of illness

Supporting children who are physically or mentally ill is the responsibility of all education professionals. This includes:

  • school staff
  • school support teams
  • the local authority

Everyone has a part to play in supporting children to access their right to education.

We must decide what provision is needed for a child who is too ill to attend school. Before deciding this, we must consider a range of advice and information provided by:

  • parents
  • schools
  • involved professionals

This falls within the section 19 duty. We discharge this duty via:

  • the pupil reintegration team (PRT)
  • a multi-agency medical support panel (MSP)

The PRT will lead and facilitate the work with the school and the family. They will:

  • assess any underlying medical needs
  • recommend reasonable adjustments and provision to meet those needs in relation to:
    • physical health needs
    • mental health needs
    • the Lincolnshire emotional based school avoidance (EBSA) pathway

This includes involving relevant professionals and agencies such as:

  • medical practitioners
  • mental health support and agencies
  • early help
  • social care
  • the working together team
  • the attendance teamt
  • the special educational needs and disability (SEND) team (for children with an education, health and care (EHC) plan)

Where appropriate, they will also provide information for schools around referrals to the medical support panel.

If medical evidence is not readily available, the PRT will consider liaising with involved medical professionals to gather this. For example, consultants, or the child’s GP.

For children with an EHC plan, the illness may be long-term. It may also be linked to their special educational needs or disabilities (SEND). The PRT will work with the SEND team in these cases. They will identify if the appropriate route includes arranging an early annual review of the child’s EHC plan. This will enable any updates to the EHC plan to be considered, including how the setting is utilising the SEND funding to meet need and provide reasonably accessible education. In situations such as these the SEND team will lead and facilitate the work.    

Lincolnshire’s medical needs policy outlines:

  • the support available
  • when and how provision may be arranged if needed
  • the respective roles and responsibilities of:
    • the local authority
    • schools
    • parents or carers
    • service providers
    • other agencies

Section 19: by reason of exclusion

Lincolnshire ladder of behavioural intervention should be followed if a child is at risk of exclusions. This will enable a range of strategies and support to be implemented and reviewed. Suspension or permanent exclusion should only be used:

  • as a last resort and protective consequence, in response to serious or persistent breaches of a school’s behaviour policy
  • when allowing the child to remain in school would seriously harm the education or welfare of the individual and others in the school

For permanent exclusions, we must arrange suitable full-time education for the child. This should begin no later than the sixth school day of the exclusion. This will be the child’s ‘home authority’ in cases where the school is maintained by (or located within) a different local authority. 

For all suspensions and permanent exclusions, the school must notify us without delay. In Lincolnshire, this is within 24 hours of the exclusion being issued.

Arranging alternative provision for permanently excluded children falls within the section 19 duty. We discharge this duty via:

  • the pupil reintegration team (PRT)
  • placement at an alternative provision provider
  • the SEND team, for children with an EHC plan that are permanently excluded from a special school

For fixed period exclusions, known as suspensions, this responsibility falls to the school’s governing board. This is in accordance with section 100 of the Education and Inspections Act 2006.

Section 19: by reason of ‘otherwise’

In Lincolnshire, there is an established local area expectation and agreement for:

  • inclusion to be embedded throughout all schools
  • a commitment to fully engage with and implement available provision and support to meet children’s needs as early as possible

Partners in education, health and social care are committed to working together to establish an integrated school system where children:

  • get the right health, care and education, in the right place, at the right time
  • are able to transition to adulthood and independence when they are ready to do so

Considering a request for alternative provision for ‘other reasons’ is part of our duty under section 19. We discharge this duty through:

  • the pupil reintegration team (PRT)
  • the special educational needs and disability (SEND) team, for children with an education, health and care (EHC) plan

This often involves parent or carer concerns that their child’s needs are not being met. Therefore, the appropriate team will lead and facilitate the work with the school and the family to:

  • assess any underlying needs
  • recommend reasonable adjustments and provision to meet those needs

This includes involving relevant professionals and agencies such as:

  • early help
  • social care
  • the working together team
  • the education welfare and engagement (EWE) team
  • mental health support and agencies
  • the quality and effectiveness team, at a strategic level

Section 436A of the Education Act 1996 requires us to make arrangements to identify, as far as possible, children who are not:

  • registered at a school
  • receiving a suitable education otherwise 

We discharge this duty through our EWE team, for children who are without a school place. For example, not registered on the roll of a school and therefore children missing education (CME). A return to school will be facilitated where possible through supporting families to apply via the in-year admissions application process. A school attendance order (SAO) will be issued in most other circumstances.

If a child is removed from a school roll to be home educated, we will assess the suitability of that education. The education must be appropriate for their:

  • age
  • ability
  • aptitude
  • special educational needs

If it is not suitable, the EWE Team will manage the process.In such cases, the child will be returned to school, either through:

  • parental choice
  • use of an SAO

Educated other than at school (EOTAS)

The SEND code of practice sets out the presumption in law of mainstream education. 

'1.26 As part of its commitments under articles 7 and 24 of the United Nations Convention of the Rights of Persons with Disabilities, the UK Government is committed to inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education. The Children and Families Act 2014 secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated and the Equality Act 2010 provides protection from discrimination for disabled people'.

EOTAS is possible due to section 61 of Children and Families Act 2014. Local authorities can agree EOTAS where it is deemed appropriate. Local authorities have this power under section 61. They must be sure that education in a school or post-16 setting is not suitable. Only then can they arrange education somewhere else.

  1. A local authority in England can arrange special educational provision for a child. This may be done outside a school, post-16 institution, or early years setting. The authority must decide that this arrangement is necessary.
  2. The authority may only do this if it decides school or post-16 provision is unsuitable.
  3. Before doing so, the authority must consult the child's parent or the young person.

Only a child with an EHC plan can be considered for EOTAS. It is not something that is requested or stated as a preference. We will determine through assessment when EOTAS may be needed. We will examine if the complexity of needs means that education or SEND provision within a school setting would not be appropriate. EOTAS can therefore only be designated through:

  • an EHC needs assessment
  • re-assessment
  • early annual review

Process for considering section 19 requests

Process step 1 - request for section 19 received 

  • sent to head of service for inclusion
  • acknowledgement sent to requester by pupil reintegration team (PRT) panel clerk

Process step 2 - request considered at section 19 panel meeting:

  • PRT panel clerk sets up meeting
  • PRT team manager, quality and effectiveness team manager, education welfare and engagement (EWE) CME lead, SEND team manager (if EHC plan). Involving caseworkers as needed or where involved
  • consider correct route of support. Outcome letter sent to requester

Process step 3 - lead:

  • illness - PRT, or SEND team if EHC plan and linked to the child's SEND
  • exclusion - PRT
  • otherwise - PRT, or SEND team if EHC plan, or EWE team if return to school pathway

Process step 4 - outcomes

  • agreed - proceed to process step 5
  • request not agreed at this time - proceed to process step 6
  • multi-agency meeting - proceed to process step 5 or 6, or take no further action
  • request not agreed - no further action

Process step 5 - agreed

  • alternative provision to be arranged by the lead team

Process step 6 - request not agreed at this time

  • receiving, or can be supported to receive, suitable education at their education setting
  • three-month check-ins, supplemented by multi-agency working as appropriate or needed

Timescales

There are no statutory timescales for considering a request. However, as the child is out of school, it is important to:

  • prioritise consideration
  • make an informed decision as soon as possible 

We aim to:

  • acknowledge receipt of the request within five working days
  • make and communicate the outcome decision of the section 19 panel meeting within 15 working days after the request has been made

This may not always be possible. It is important to communicate regularly with the requester to keep them informed of progress towards a decision and outcomes.

Possible outcomes

Request agreed

We have determined from the evidence that the child will not receive a suitable education unless arrangements are made for them. Therefore, alternative provision will be provided.

According to the context of the request, we will determine the:

  • nature of the alternative provision
  • provider
  • venue

Regular reviews will take place. The focus will remain on alternative provision being a short-term intervention, and not an end destination. We will aim to achieve a sustained return to school and full-time education as soon as possible.

The alternative provision will be arranged by the:

  • pupil reintegration team (PRT)
  • SEND team, for children with an EHC plan, when the request is for ‘other reasons’, or if the child’s illness is long-term and, or linked to other special educational needs
  • education welfare and engagement team if return to school pathway

Request not agreed at this time

We have determined that the child can receive suitable education at their current setting.

A minimum of a three-month check-in on the case will be scheduled for the relevant caseworker (PRT or SEND for those children with an EHC plan). They will review:

  • the child’s engagement and any support in place
  • whether alternative provision should be considered

This can be a multi-agency meeting or supplement multi-agency working and meetings that take place. 

The line manager of the caseworker will diarise an update from the caseworker following the three-month check-in.

If at the three-month check-in some progress has been made, but the child is still not regularly attending, a further three-month check is diarised. A request can be re-submitted for consideration in the future if the needs of the child or progress towards full time education is not sufficient. 

Professionals should be mindful in review meetings whether the progress towards full time education is sufficient. If it is not, they should consider:

  • what additional steps need to be put in place, including extra support, strategies and agencies
  • whether alternative provision should be considered

For ‘otherwise’, as this often involves parent or carer concerns that their child’s needs are not being met, the quality and effectiveness team can be involved. They act as a strategic professional partner to schools, providing support to senior leaders (including governors). They ensure schools are rigorous in evaluating and implementing effective inclusive practice to meet the additional needs of children.

Request to be discussed at multi-agency meeting

We have decided that multi-agency discussion is required. This will determine whether:

  • the child can be supported to receive a suitable education
  • alternative provision arrangements need to be made for them

The lead officer will arrange the meeting and invite all relevant agencies, including (but not limited to):

  • parent or carer
  • child
  • school
  • involved agencies

Where the request is in relation to medical needs, further evidence may be sought from relevant medical professionals. This will help to determine whether alternative provision arrangements need to be made for the child.

Following the multi-agency, the request will either be:

  • agreed
  • not agreed at this time
  • not agreed

Next steps should be set out as per these outcomes.

Request not agreed

We have determined from the evidence that the request isn’t in relation to the section 19 duty. There will be no further action.

The school will be informed when a parental request for alternative provision has been made. It is important for headteachers and principals to know when a family does not feel confident in the school’s provision.

The school should be part of:

  • the three-month check ins
  • any multi-agency meetings

This will support their proactive implementation of reasonable adjustments. It will ensure, wherever possible, that they are providing education that continues to be reasonably practicable for the child to attend. 

Case recording

Recording of all actions and decision points to be on the child’s Mosaic record in casenotes.