T was unable to attend school due to ill health. She received five hours of home tuition per week that the local authority (“LA”) reduced due to financial constraints.  It was decided that an LA, faced with the need to make savings by reducing expenditure, had to make difficult decisions in determining priorities with scarce resources, but the provision of suitable education to children who were ill was not an area in which discretion could be exercised. In enacting s. 298 of the Education Act 1993 (now replaced by s. 19 Education Act 1996), Parliament had not conferred a power but had clearly imposed a duty. Whilst other parts of the law make reference to the efficient use of resources, the factors relevant providing suitable education for pupils out of school related exclusively to educational considerations and there was nothing to indicate that resources were to be taken into account. Thus, the LA's decision to reduce T's hours of home tuition was unlawful.

The wording in s. 19 Education Act 1996, the current law, similarly states:

(1) Each local authority shall make arrangements for the provision of 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.

(3A) In relation to England, the education to be provided for a child in pursuance of arrangements made by a local authority under subsection (1) shall be—

(a) full-time education, or

(b) in the case of a child within subsection (3AA), education on such part-time basis as the authority consider to be in the child's best interests.

(3AA) A child is within this subsection if the local authority consider that, for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided for the child.

This means LAs are under an absolute duty to provide suitable, full-time education for children who are out of school due to illness, exclusion or otherwise; they cannot choose not to provide this support, and they cannot use arguments of lack of resources to justify a failure to do so.

The full case report for R v East Sussex County Council, Ex p Tandy / In re T (A Minor) [1998] 2 WLR 884 can be viewed online.

For more information see our sections on exclusion from school and what your LA should do to help.