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

Provision for children who experience a period of ill health, be that physical illness or poor mental health, is a responsibility that encompasses all education professionals, including those working in schools, school support teams and the local authority. Each has a part to play in supporting children to access their statutory right to education.

What provision is needed for a child who is too ill to attend school is ultimately for the local authority to decide after considering a range of advice and information provided by parents, schools and involved professionals. 

Arranging alternative provision for children that are too ill to attend school falls within the Section 19 duty.  The local authority discharges this duty via a multi-agency Medical Support Panel (MSP) and the Pupil Reintegration Team (PRT).

Schools refer to MSP where a multi-agency panel will consider all the information across school, medical professionals, and parent/carer and cyp voice.  MSP will provide advice and next steps for the school to put in place.  The PRT will lead and facilitate the work with the school and the family to assess any underlying medical needs and recommend reasonable adjustments and provision to meet those needs in relation to physical health needs, mental health needs and as part of 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 Team, and the Special Educational Needs and Disability (SEND) Team (for child and young people 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, such as consultants or the child’s GP to gather this.

For children with an Education, Health and Care (EHC) plan the SEND Team will lead and facilitate the work.  They will identify the appropriate route, including whether  arranging an early annual review of the child’s EHC plan is necessary. 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 and ensuring the provision detailed in Section F of the EHC plan remains appropriate. 

Lincolnshire’s Medical Needs Policy outlines the support available, when and how provision may be arranged if needed, and the respective roles and responsibilities of the local authority, schools, parents/carers, service providers and other agencies. 

Section 19: by reason of exclusion

If a child is considered to be at risk of exclusions, it is Lincolnshire’s expectation that Lincolnshire Ladder of Behavioural Intervention is followed to enable a range of strategies and support to be implemented and reviewed.  Suspension or permanent exclusion should, therefore, be used only as a last resort and only as a protective consequence, in response to serious or persistent breaches of a school’s behaviour policy and 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, the local authority must arrange suitable full-time education for the child to 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, school must notify the local authority 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.  The local authority discharges this duty via the Pupil Reintegration Team (PRT) and placement at an alternative provision provider.  For children with an EHC plan that are permanently excluded from a special school the local authority discharges this duty via the SEND Team.  

For fixed period exclusions, known as Suspensions, this responsibility falls to the school’s governing board in accordance with Section 100 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 and 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 and are able to transition to adulthood and independence when they are ready to do so.

‘High quality inclusive education where children and young people feel they belong, are respected, and are optimistic and aspirational about their future’.

Lincolnshire's Inclusion Strategy

Considering a request for alternative provision for ‘other reasons’ is part of the local authority’s duty under Section 19.  The local authority discharges this duty through the Pupil Reintegration Team (PRT), or, for children with an Education, Health and Care (EHC) plan, through the Special Educational Needs and Disability (SEND) Team, or for children on a return to school pathway, through the Education Welfare and Engagement Team.  As this often involves parent/carer concerns that their child’s needs are not being met, the appropriate team will lead and facilitate the work with the school and the family to assess any underlying needs and 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, and mental health support and agencies, as well as the Quality and Effectiveness Team at a strategic level. 

Section 436A of the Education Act 1996 requires the Local Authority to make arrangements to identify, as far as possible, children who are not registered at a school and those not receiving a suitable education otherwise. 

For children who are without a school place, i.e. not registered on the roll of a school and therefore Children Missing Education (CME), the Local Authority discharges their duty through the EWE Team.  A return to school would normally, where possible, be facilitated through supporting families to apply via the in-year admissions application process, or a School Attendance Order (SAO) in nearly all other circumstances.   

For children who have been removed from a school roll, with the intention to home educate and that home education is not deemed suitable to the child’s age, ability, aptitude and any special educational needs they have, the Local Authority discharges their duty through the EWE Team.  Where the education being provided at home is not suitable, it is expedient that a child be returned to school, either through parental choice or by 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

Request for section 19 received 

If EHC plan, sent to SEND team, who will address, respond and facilitate.  

If no EHC plan, sent to PRT, acknowledgement sent to requester by PRT panel clerk

Process step 1 - 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. Involving caseworkers as needed or where involved
  • consider correct route of support. Outcome letter sent to requester

Process step 2 - lead:

  • illness - PRT
  • exclusion - PRT
  • otherwise - PRT, or EWE team if return to school pathway

Process step 3 - outcomes:

  • agreed - proceed to process step 4
  • request not agreed at this time - proceed to process step 5
  • multi-agency meeting - proceed to process step 4 or 5, or take no further action
  • request not agreed - no further action

Process step 4 - agreed

  • alternative provision to be arranged by the lead team

Process step 5 - 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 and make an informed decision as soon as possible. 

We aim to acknowledge receipt of the request within 5 working days.

Requests are considered at a Section 19 Panel meeting. Section 19 Panel meetings are arranged fortnightly throughout term time.  Requests are considered at the next available fortnightly Panel.    

We aim to communicate the outcome decision of the Section 19 Panel meeting within 5 working days of the Panel.  This may not always be possible, and we aim to communicate regularly with the requester to keep them informed of progress towards a decision and outcomes.

Possible outcomes

  • Request agreed: the local authority has 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.

The nature of the alternative provision, the provider and the venue will be determined according to the context of the request. Regular reviews will take place.  The focus will remain on alternative provision being a short-term intervention and not an end destination, with the aim of achieving 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), or by the Education Welfare and Engagement (EWE) Team for children on a Return to School (RTS) pathway. 

  • Request not agreed at this time: the local authority has determined from the evidence that the child is receiving, or can be supported to receive, a suitable education at their education setting. 

A minimum of a 3-month check-in on the case will be scheduled for the relevant Caseworker to review the child’s engagement and any support in place, and 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 3-month check-in.

If at the 3-month check-in some progress has been made, but the child is still not regularly attending, a further 3-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 and, if not, what additional steps need to be put in place, including changes to or additional support, strategies and agencies or whether alternative provision should be considered.

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

  • Request to be discussed at multi-agency meeting: the local authority has determined that multi-agency discussion is required to determine whether the child can be supported to receive a suitable education or whether 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/carer, child, school, involved agencies.

Where the request is in relation to medical needs, further evidence may be sought from relevant medical professionals 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’, or ‘not agreed’ and next steps should be set out as per these outcomes.  

  • Request Not Agreed: the local authority has determined from the evidence that request isn’t in relation to or trigger 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/Principals to know when a family does not feel confident in the school’s provision.

The school should be part of 3-month check ins and any multi-agency meetings to support their proactive implementation of reasonable adjustments and 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.