There is a school named in my daughter’s EHC plan, but over the last few months she has become incredibly anxious and is too anxious to attend school some days. She has now missed a significant amount of time. What can we do?

When a child is unable to attend school due to mental health challenges such as anxiety, it is important to seek help as soon as possible. There are a number of different issues to deal with.

As a first step, 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 able to attend school, ask for a letter to the local authority (LA) to be provided, explaining this. This will mean your LA has a formal letter explaining why she cannot go to school. The GP should also refer her to the Child and Adolescent Mental Health Service (known as CAMHS).

Getting temporary education put in place

You should write to your LA and request it provides alternative education for her whilst she is out of school for mental health reasons. We have a template letter you can use to help you make this request.

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 of the 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 says on page 9 that children with health needs should have provision, where possible, which is the same as the education they would receive in a mainstream school. Any part-time education should be reviewed regularly, with the aim of eventually increasing the number of hours up to full-time as soon as the child’s health allows.

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 those days follow on from each other or over time total at least 15 days. They should speak 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

Your daughter being unable to attend school may indicate that the support currently in place through her EHC plan is not sufficient.  It may be that she needs more support, or she may need to attend a different school entirely.

You could ask for an emergency review of the EHC plan so that it can be amended. Alternatively, if you think more information is needed about your daughter’s special educational needs (SEN), you could consider asking for a reassessment. If 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 reassessment.

There is guidance for schools from the Department for Education entitled ‘Mental health and behaviour in schools: departmental guidance for school staff’. This contains guidance on what schools should be doing to identify and support pupils with mental health issues.

If your  LA refuses your request for a re-assessment, you have the right to appeal to the SEND Tribunal.

Threats of prosecution for missed schooling

If the school, or your LA, suggests that you could be served with an Attendance Order or prosecuted as a result of your daughter missing school, you should update them about your daughter’s mental health and explain 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 decision to reassess will be taken quickly 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.