When School Isn’t Possible: Understanding Section 19 and Your Child’s Right to Education

To wake up in the morning excited to see their friends.

To learn, to engage, and to feel part of something.

For most children, that is the case.

However, for some children, the school setting is a place they fear. They are overwhelmed by the environment, the learning and the people.
For some children this is a place where they feel unsafe.

Estimates suggest that there are approximately 300,000 children in England and Wales missing from education. While this figure includes a range of circumstances, many of these children have special educational or medical needs.

Even more concerning, in the academic year 2023/24, around 1.5 million children were persistently absent from school.

Since 2017, there has been a 40% rise in the number of children unable to access school.

Children across England and Wales are currently sat at home, not receiving an education, and further to this, not receiving support for their special educational needs. Often, these children are forgotten by the Local Authority and by their educational settings. Their absences are marked, but no measures are taken to support these children. Parents are at a loss and have no clear idea of where to turn.

Section 19 education is available for children who have been unable to access their education due to ‘illness, exclusion or otherwise.’ Children have to have been away from the educational setting for 15 school days, whether this be consecutive or cumulative for the Local Authority duty to be triggered.

In the case of G, R (on the application of) v Westminster City Council [2004] EWCA Civ 45, the scope of Section 19 duty was discussed. The court held that the Local Authority had not acted lawfully when they had provided the child with a place at a suitable school, and therefore considered that it was reasonably practicable for him to attend, even though he was not able to access the setting. The Court further stated that there may be exceptional situations where it is unreasonable for a child to attend school, for example, persistent bullying, and the school cannot stop this.

Further precedent relating to Section 19 duties on the Local Authority include a decision issued by the Local Government Ombudsman involving Surrey County Council in 2002. It was determined that a child who was unable to attend school due to anxiety or a phobia satisfied the criteria for Section 19 interim education to be implemented.

The Local Authority can be reluctant to implement this, but if the situation satisfies the legal duty placed on the Local Authority then this can be escalated through a Pre-Action Protocol Letter, which threatens the Local Authority with Judicial Review.

The Local Authority have a legal duty to provide a ‘suitable education.’ There is no legal definition of the term ‘suitable’, however, the general rule of thumb is that interim education is between 6-10 hours of education per week. This can differ based on a child’s age, ability, aptitude and special educational needs.

Interim education can also include therapeutic input, farm schools, forest schools and many other things. The Local Authority will tend to utilize their own providers.

Section 19 exists to ensure that children do not fall through the gaps when school is no longer accessible.

And while the process can feel complex, the principle is simple:

Every child has a right to an education that they can actually access.

We would never recommend staying silent if your child is not receiving that support.

Understanding your rights is the first step towards making sure your child is seen, supported, and able to move forward in a way that works for them.