Understanding Section 19 of the Education Act 1996
Joe Orme-Paul and Sophie Orger look at the issues for schools and academies around the duty in section 19 of the Education Act 1996.
Section 19(1) of the Education Act 1996 places a duty on local authorities to make arrangements for the provision of suitable education for children of compulsory school age who cannot attend school because of illness, exclusion from school or otherwise. This is often referred to as the ‘section 19 duty.’ This means that where a child cannot attend school for various reasons, and cannot access suitable full-time education, the local authority is responsible for arranging the suitable educational provision. This article aims to highlight the true breadth of this duty and how schools can ensure their discussions with local authorities are properly informed.
When are local authorities required to provide alternative provision?
Illness
Some children may be limited in their ability to attend school due to additional health needs and therefore fall within the scope of the section 19 duty. This is particularly the case for any children whose health needs prevent them from attending for an extended period of time, or those that cannot attend on full-time and regular basis.
The necessary provision is to be determined by the local authority under which a child resides following their consideration of a range of information provided by the parents and the school.
This provision should be arranged as soon as it becomes clear that the child will be away from school for 15 days or more because of their health needs. These 15 days can be a consecutive period or over the course of the school year. The number of days is not a feature of the section 19 duty, but it is the common practice.
Exclusion
For permanent exclusions, the local authority must arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place. In the case of a suspension, the duty sits with the school suspending the pupil.
“Or otherwise”
As the Local Government and Social Care Ombudsman (“LGO”) noted in a report issued in 2023 and as firmly established in case law, “otherwise” is a broad category which covers circumstances outside illnesses and exclusions in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.
Therefore, if the reason for the absence is due to any other reason the section 19 duty will apply if it is not reasonably possible for a child to take up any existing schooling. Whether it is reasonably possible for a child to attend their school must be looked at objectively and considering all of the circumstances. The local authority must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions. The local authority must take account of all available evidence and record the reasons for their decisions. For schools, this means ensuring that the local authority is sufficiently appraised of the matters and giving them the information needed to demonstrate that.
The Court of Appeal in G, R (on the application of) v Westminster City Council [2004] EWCA Civ 45 discussed the scope of the section 19 duty on local authorities, and in which circumstances the duty is likely to arise. In this case, the Court held that the local authority had not acted unlawfully where they had provided the child with a place at a suitable school which was reasonably practicable for him to attend but the child was not attending that school.
The Court also stated there may be exceptional situations where it is unreasonable to expect a child to attend a suitable school (and there is no physical reason to prevent attendance). For example, if a child experiences persistent bullying and the school is unable to stop it, it may be reasonable for the parent to refuse attendance, and the local authority would be required to act in accordance with the section 19 duty. There can also be specific cases whereby a pupil presents a significant risk to themselves or others at the school and, despite risk assessment and adjustments, the risk cannot be safely managed.
In an LGO decision involving Surrey County Council (21 017 133) in 2022, it was held that the local authority have a duty under section 19 to provide alternative education when a child is refusing to attend school due to anxiety or a phobia. Furthermore, in an LGO case hearing involving Suffolk County Council (22 015 250) in 2023, it was found that the local authority was required to act under section 19 when a child could not attend school due to chronic fatigue. All of these cases demonstrate the far-reaching scope of the “otherwise” category under section 19, accompanied by local authorities’ reluctance to provide alternative education in these cases. It also highlights the resource available when schools find themselves in difficult situations.
When is alternative provision not required under section 19?
Where parents elect to educate their children at home, this conveys different legal responsibilities on the local authority. Responsibility for the child’s education now lies with the child’s parents and not the local authority in these circumstances. Although, it should also be noted that where a child is receiving education at home, the local authority is not entirely discharged of its legal duties and must be satisfied that the educational arrangements are “suitable” as per section 19. They may do this by keeping in contact with the parents or providing support where requested but this is more discretionary duty.
Of course, a parent is entitled to change their position on home education, at which time the Local Authority would support in the event the parent could not secure an in-year admission.
What must the local authority provide?
The alternative provision must be suitable to the child’s age, ability and aptitude, and any other special educational needs they have.
Education provided under section 19 must be full-time unless the local authority considers 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, in which case it must be on such part-time basis as the authority considers to be in the child’s best interests.
While “full-time” is not defined in legislation, pupils should receive the same amount of education as they would receive in a maintained school.
Accompanying statutory guidance relating to alternative provision further defines the meaning of ‘good alternative provision’:
“Good alternative provision is that which appropriately meets the needs of pupils which required its use and enables them to achieve good educational attainment on par with their mainstream peers. All pupils must receive a good education, regardless of their circumstances or the settings in which they find themselves. Provision will differ from pupil to pupil, but there are some common elements that alternative provision should aim to achieve.”
The ‘common elements’ include good academic attainment with appropriate accreditation and qualifications; identification and meeting of the specific personal, social and academic needs of pupils to help children overcome barriers to attainment; engagement with education; and clearly defined objectives for future education, training or employment.
The section 19 duty is a vital provision that ensures that every child’s right to education, even in challenging circumstances, is upheld. Our experience is that Local Authority knowledge or acceptance of the breadth and application of the section 19 duty is highly variable. Therefore, it is important that schools and academy trusts are aware of the breath of this absolute duty and seeks the necessary support as and when the need arises.
Does the local authority have to publish information about their section 19 provision?
As outlined in the Department for Education’s statutory guidance, ‘Arranging education for children who cannot attend school because of health needs’ (2023), all local authorities should have a written, publicly accessible policy statement on their arrangements for complying with the s.19 duty.
The statutory guidance also sets out that local authorities should have processes or policies in place which support a child in getting the right and appropriate type of provision and a good education. Additionally, local authorities should have processes and policies in place addressing how they support children and young people under and over compulsory school age access appropriate education. It is therefore good practice for local authorities to make this policy available and publish it online.
Joe Orme-Paul is a partner and Sophie Orger is a trainee solicitor at Hill Dickinson.