SEND and pupils absent due to health needs: What you need to know

The Government has delayed the Schools White Paper to spend more time on proposed special educational needs and disabilities (SEND) reforms. 

Our teams provide daily advice on SEND issues schools face. We have recently received many requests for support with questions about pupils who cannot attend school because of significant SEND or health needs. This article explains the duties on schools and local authorities.

The legal framework

Section 19 (s.19) of the Education Act 1996 sets out a duty on local authorities to provide suitable education to pupils of compulsory school age who cannot attend school because of “illness, exclusion from school or otherwise”. 

The duty acts as a backstop to ensure pupils continue to receive education when unable to attend school, because schools are not set up to deliver home education (Covid aside).

When does the 15-day rule apply?

The requirement is nearly 30 years old, so case law continues to explain its limits. The legislation does not explain when the duty applies in practice regarding number of days missed. 

However, the DfE’s guidance on 'Arranging education for children who cannot attend school because of health needs' sets out an expectation that when it’s clear a pupil will miss 15 school days or more because of a health need - either consecutively or across an academic year - alternative provision should be put in place. Our experience shows this does not generally happen for non-consecutive absences as suggested.

When the duty applies

The duty only applies where it is not reasonably practicable for the pupil to attend school. It does not apply where parents have misconceived objections. Even if an incident has occurred at school, a parent refusing to send their child to school is unlikely to trigger the local authority’s duty. The key question is whether school provision is available and accessible.

Pupils with anxiety

Other cases have examined whether the duty applies to pupils with anxiety. It can apply, but in one case from 2020 the local authority rejected the parents' position, despite evidence from a privately instructed consultant psychiatrist that the pupil was too ill to attend school. This medical evidence was based only on the perspectives of the pupil and parents. 

The Court found the local authority was entitled to reject the medical evidence and take a different view having spoken to the school concerned. The school had evidence the pupil had been fine in school and could be supported.

Pupils with an EHCP

For pupils with an Education, Health and Care Plan (EHCP), the local authority’s duty to ensure all special educational provision is in place overlaps with the s.19 duty. This applies whether a pupil attends school or not. Unlike the school’s duty to make "best endeavours” to provide special educational provision, the local authority’s duty is absolute with no equivalent defence.

Schools are not generally set up to deliver provision in the home, and there are many benefits (not least social) from pupils attending school. Many recent cases therefore cover both duties under the Children and Families Act and the s.19 duty under the Education Act 1996.

Unlike the school's duty to make "best endeavours" to provide special educational provision, the local authority's duty is absolute with no equivalent defence.

What schools can do

What can schools do when faced by a pupil who is not attending school with a link to a health need? First, inform the local authority if you have a pupil who has, or will, breach the 15-day amount because of a health need.

Local authorities cannot act on pupils they are unaware of. Generally, s.19 provision will be short-term with the aim of getting the pupil back to school when able.

Long-term arrangements

However, for a small number of pupils, this can become a longer-term arrangement. We have had cases where absence from the school named in an EHCP is well over a year. If you reach that point with no change in sight, it may suggest the school is not suitable and this should be discussed at an annual review for the EHCP. 

You will be unlikely to remove the pupil from roll immediately, but the local authority has the power to make educational provision for a pupil otherwise than in school (sometimes called Education Otherwise Than In School (EOTIS)) and change the EHCP accordingly, should provision in school be inappropriate.

An extremely long absence is likely to point to that being the case. As with the SEND system generally, parents have most rights to challenge provision and placement decisions through the Tribunal, with no ability for schools to do so. Ideally, they will be on board if the pupil has been at home for over a year, but as a school you can consider complaining if no, or inadequate, provision is being provided.

Safeguarding responsibilities

Where a pupil is on your roll, even if they have not been in school for some time, you still have safeguarding responsibilities to that pupil. School staff do not necessarily need to have seen the child themselves. 

You must ensure coordination so that a professional, whether working in school or for the local authority, has seen the child recently to confirm they are safe. Numerous safeguarding reviews have identified cases where pupils have been failed due to communication breakdowns, so ensure you record all decisions and communications.

How we can help

We’ve developed a SEND support pack, which includes a range of resources for schools, and places are now available to book on the first cohort of our SEND CPD programme.