Clarifying local authority duties: new LGSCO guidance on children out of school

Associate Erin Smart discusses what the guidance means for families, schools, and local authorities, and how it strengthens the ability to hold authorities to account for providing suitable alternative education.

Under section 19 of the Education Act 1996, local authorities have a duty to arrange suitable, full-time education for children of compulsory school age who “by reason of exclusion, illness or otherwise” would not receive suitable education without arrangements being made.

If a child cannot attend school (for example for medical reasons), the local authority must arrange alternative provision. The newer guidance makes clear that the local authority should act as soon as it is clear the child will be away for more than 15 school days (consecutive or cumulative) or as soon as exclusion arrangements apply.

The guidance emphasises that “otherwise” (i.e. reasons other than illness or exclusion) is a broad category and includes situations where a child is not able to take advantage of any suitable schooling.

The remedy guidance sets out that if the Ombudsman finds fault by the local authority or other body, recommended remedies include apology, reconsideration of decisions, symbolic payments, financial recompense for missed education of special educational needs provision, reimbursement of out of pocket expenses (such as tuition, school fees, materials) and service improvements (policy, training, oversight).

Children being out of school (whether permanently, for long periods, or without a clear alternative) persists as a major issue. This was considered by the Ombudsmen in 2022 (“Out of school, out of sight?”) which found that, in many cases, local authorities were not making alternative arrangements promptly or sufficiently when a child could not attend school.

For parents, the guidance provides clearer expectation about rights and timescales: e.g. absence of 15 school days triggers consideration; if no school place, immediate alternative provision is expected.

If a child is off school due to illness, exclusion, or another barrier and no suitable education is being provided, the family has always had the ability to hold the local authority to account, including via pre-action protocol correspondence, internal complaints to the local authority and complaints to the Ombudsman. It is hoped that this guidance further empowers parents to hold local authorities to these duties, adds weight to any complaint and assists the local authority in handling these situations.

Schools and local authorities must ensure they have timely processes, named officers, and monitoring systems in place to spot children out of attendance and act. The guidance repeatedly emphasises evidence-based decisions, documented rationales, and regular review.

The remedy section clarifies that part-time provision should only be temporary; while full-time is not in the child’s best interests, and should be regularly reviewed with the aim of increasing to full-time.

The guidance has provided some very clear advice to local authorities which should empower parents to ensure that their children’s needs are being met, for example:

• Where a child is likely to be out of mainstream schooling for more than 15 days, the local authority should treat that as a trigger for alternative provision.
• “Otherwise” means any reason that the child cannot access suitable schooling i.e. not only for illness or exclusion but, for example, where a child is too anxious to attend school or the school the child is on roll at is wholly unsuitable.
• The duty is on the local authority and is absolute and non-delegable even if the local authority works with schools or third-party providers to discharge the duty.
• Part-time should be the exception not the norm.

If your child is not attending school, firstly, ensure that the school has informed the local authority of this change. If not, the parent or another professional can do so. If you believe suitable alternative education is not being provided, we can check whether the local authority has considered its s.19 duty (Education Act 1996) and whether provision is full-time (or justified part-time). If the local authority fails to act, this can be escalated via pre-action protocol for judicial review, which is a faster process to remedy an ongoing breach, and then complaint to the local authority and; ultimately to the Ombudsman to secure financial recompense which, in some cases, can be into the 10s of thousands.

The new LGSCO guidance on children out of school marks a significant step in clarifying the expectations and responsibilities of local authorities, schools and families when children of compulsory school age are unable to attend mainstream schooling. The emphasis on suitability, timeliness, full-time education (unless justified which is rare and related to the child, not the local authority resources available) and clear decision-making raises the bar for local authorities.

For families, the clarity of the guidance means a clearer basis for holding authorities to account; for schools and local authorities, it highlights the need to ensure proactive, well-documented, child-centred responses. The real test will be how the system responds in practice — particularly for children with complex needs, absence due to health/mental health, or other non-exclusion reasons.

Erin Smart is an associate in the education law team. She advises on a wide range of educational issues and specialises in special educational needs, including assisting clients to apply for Education Health and Care (“EHC”) needs assessments and EHC plans.