The duty to provide alternative education

Under section 19 of the Education Act 1996, the LA has a legal duty to secure suitable, full-time alternative education for those children of compulsory school age who, by reason of illness, exclusion or otherwise, may not for any period receive suitable education unless such arrangements are made for them.  

This education must be full time unless, for reasons relating to the physical or mental health of the child, a reduced level of education would be in the child’s best interests.  

It must also be suitable to the child’s age, ability, aptitude and any special educational needs.

Compulsory school age begins with the start of term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which s/he turns 16.

How to request alternative education

Write to the Director of Children’s Services at your LA and request that they provide suitable alternative full-time education for your child whilst he or she is out of school.  In your letter or email, you should include

  • your child’s name, age and school
  • details of the circumstances which have led to your request
  • the date by which the LA will have a duty to provide full-time education for your child:
    • exclusions: from the sixth school day after the exclusion
    • health needs/anxiety: as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative, and at the latest by the sixth day of the absence
    • children with no school place: immediately
  • copies of any supporting evidence (e.g. an exclusion letter from the head teacher, or a letter from your GP or other medical or mental health practitioner)
  • details of your child’s SEN and of the provision that will be required in order for the alternative education provision to be suitable
  • if your child has an EHC Plan, attach a copy and ask for details of how the LA will ensure that the special educational provision continues to be delivered while he or she is out of school in accordance with section 42, Children and Families Act 2014.

Keep a copy of your letter so that you have a record of your contact with the LA.

Complaints

If, despite a request to do so, the LA has not made any suitable arrangements for alternative education for a child who cannot attend school, they will be in breach of their statutory duties and you could consider making a complaint

The Local Government Ombudsman has repeatedly highlighted the duty to provide alternative education.

Case law

The Courts have confirmed that the LA has a duty to provide education for all children of compulsory school age who are out of school.

R v East Sussex County Council, Ex p Tandy / In re T (A Minor) [1998] 2 WLR 884: The LA is under an absolute duty to provide suitable education for children who are out of school due to illness, exclusion or otherwise. An LA may not take its own financial constraints into account when assessing what is an appropriate education.

R (on the application of Y) v Croydon LBC [2015] EWHC 3033 (Admin); [2016] E.L.R. 138: The mother of a severely learning-disabled child had been unable to get him to attend school despite significant efforts. The LA refused to change the school named in the Statement or provide other alternative education. The LA was found to be in breach of its duty under s. 19 Education Act 1996 to provide suitable education; as no further plan had been put forward, it was not reasonably practicable for the child to attend that school.