Our daughter’s anxiety builds up to the point that she cannot go to school. She has an EHC plan but it doesn’t contain any information about her mental health needs as these have only arisen recently. What should we do?

The school is saying there is nothing it can do as this is a health need and it is nothing to do with the school. This week we have received a letter from the local authority threatening us with an Attendance Order and court if we don’t return our daughter to school. We are worried about being prosecuted and fear our daughter will never be able to go back to school.

When a child is unable to attend school and their behaviour and/or anxiety appears to be worsening, it is important to seek help as soon as possible. There are a number of different issues to deal with.

Speaking to the school

The school is not correct in saying that this is purely a health need and is nothing to do with it. Remember that the term special educational needs (SEN) covers a broad spectrum which includes social, emotional and mental health needs.   

Schools must have regard to guidance issued by the Department for Education on their responsibilities where a mental health issue is affecting attendance.

Further guidance for schools on how to identify and support pupils with mental health issues can be found in ‘Mental health and behaviour in schools: departmental guidance for school staff’.

You may wish to ask the class teacher, SENCO and or senior management team for a meeting to discuss what might be behind your child’s mental health issues and how they can support her. 

Dealing with the Attendance Order

You should take your daughter to your GP and explain what has been happening. If the GP (or any medical/mental health professional) feels that she isn‘t currently fit to attend school, ask for a letter to your local authority (LA) to be provided, explaining this. Evidence of this type would provide a documented explanation for her non-attendance. The GP should refer her to the Child and Adolescent Mental Health Service (known as CAMHS).

The next step is to write to the person or department (which is likely to be the Educational Welfare Service) who threatened you with the Attendance Order, updating them about your daughter’s mental health and explaining that she has SEN. Suggest to them that serving an Attendance Order in these circumstances would be premature and inappropriate; and what is needed is co-ordinated action by support agencies to identify and make provision for all of your daughter’s needs.

Hopefully, once everyone involved realises that your daughter’s non-attendance is to do with her SEN rather than with you deliberately keeping her away from school, the LA will quickly decide to reassess her needs/update her EHC plan (see below) and the threat of issuing an Attendance Order will be withdrawn.

If your LA continues with the threat of serving an Attendance Order, or actually serve it, you will need to speak to a criminal solicitor who is familiar with education cases. You should check if you qualify for legal aid.

Getting temporary education put in place

Next, you should write to your LA and request that it provides alternative education for her whilst she is out of school for mental health reasons.

Your LA has a legal duty to provide suitable education for children of compulsory school age who are out of school “by reason of illness, exclusion from school or otherwise”, under section 19 Education Act 1996. This education should be full-time unless, for reasons relating to her physical or mental health, it would not be in her best interests for full-time education to be provided.

There is statutory guidance for LAs called  'Arranging education for children who cannot attend school because of health needs’. Full-time education is not defined in law, but the guidance states it should be equivalent to what the pupil would normally have in school. If a child receives one-to-one tuition the hours could be fewer as the education may be more intensive.

It also states that LAs should provide such education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child

LAs should not:

• Have policies based upon the percentage of time a child is able to attend school rather than whether the child is receiving a suitable education during that attendance.
• Have lists of health conditions which dictate whether or not they will arrange education for children or inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).

It is unlawful to withhold or reduce the provision, or type of provision, for a child because of how much it will cost. Therefore, LAs must not have policies that limit a child’s education to a specified number of hours per week due to cost or availability.

There is no absolute legal deadline by which LAs must have started to provide education for children with additional health needs. However, the guidance says LAs should arrange provision as soon as it is clear that an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence, aiming to do so by the first day of absence.

This should hopefully mean she will not miss out on any more education whilst she is out of school.

Amending the EHC plan to get the right support in place

Clearly, the support currently in place through your daughter’s EHC plan is not enough, as she has been unable to attend school. It may be that she needs more support, or she may need to attend a different school entirely.

You should consider asking for a re-assessment of your daughter’s SEN. This is because her EHC plan does not include her mental health needs or provision to meet those needs. It will be important for the EHC plan to be updated to include this information. You should tell your LA about the threatened Attendance Order and ask them, in these circumstances, to reach a decision about a re-assessment as a matter of urgency rather than waiting the full 15 days.

If you want, you could also ask for an emergency placement to be arranged for your daughter in a special school for the purposes of a re-assessment.

If your LA refuses your request for a re-assessment, you have the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal). You should consider our information about re-assessments and whether there may be a quicker way of getting your daughter’s EHC plan updated.

A note on home education

In some cases, parents may be encouraged to make arrangements to educate their child at home and parents often feel pressured into doing this to avoid prosecution for non-attendance.

However, elective home education is a serious step. Most significantly, it relieves the LA of the duty to make sure the child receives the special educational provision in Section F of the EHC plan.

It may be better to amend the EHC plan to set out different provision and/or name a different school (or ‘education otherwise than at school’) rather than attempting to take on home education without support.

If a child in this situation does not have an EHC plan, it may be worth asking the LA for an EHC needs assessment. What is important is to get everyone involved working together to identify all of your child’s needs and making sure those needs are provided for.