Disclaimer & Jurisdiction
- Collated by the
- "HE UK: Home School Lockdown, Resources &
Support” Admin Team
- Latest update: 0900, 12 May 2020
With schools temporarily closed, thousands of parents
are seeking support from the Elective Home Education community on
how best to educate their children at home during this stressful
We have prepared this overview of the
relevant laws as we understand them.
Where possible the information
contained here was fact checked at the time
of compilation, using information corroborated via IPSEA, the DfE,
various government departments, and other trusted sources.
links to sources are available within the
article. Other links will be added as they become available.
The date of the latest updates will be placed at the top of the document.
Children become of CSA at the start of term following
the child’s 5th birthday and it ends the last Friday in June following
the child’s 16 birthday. No child aged 17 or older can be of CSA.
Young people aged 16-19 must in theory take part in some form of
education or training. However, since there is no legislative enforcement
regarding this group, and there are no legal ramifications for non-attendance,
we are setting this group aside.
Unless we say otherwise, the rest of the article
assumes we are discussing children aged 5-16 living in England.
This section outlines the educational rights and responsibilities
of the parent towards the child.
S7 means that, regardless of where
or how you decide to educate your child, it is always your
duty to ensure your child receives an education suitable to their
age, ability and aptitude, and any special needs they may have.
This applies even if you send your child to school.
So, in theory if you send your child to a failing school, you could
be prosecuted for a failure to provide a suitable education. Though
for obvious reasons this never happens.
S444 of the Education Act 1996 says that unless
they have been granted authorised absence by the Head Teacher,
children who are registered at a school must 'regularly' attend.
If parents do not ensure children attend the school
at which they are registered ‘regularly’, they are causing an offence.
welfare of children has primacy over education and the government message "is
loud and clear": the health, safety and well being of children
If children can stay at home, then that is what they
should do, unless it is absolutely necessary to
It is most important to ensure children feel safe
and loved especially since they are adapting to changes to their
usual routines, restricted social contact and other uncertainties
relating to the pandemic.
Indeed this is already written into law. S175
of the Education act 2002 says:
So paragraph 1 relates to local authorities and paragraph
2 relates to (state maintained) schools. Academies and private funded
schools are not maintained schools, even if your child is funded
with a placement there, such as in the case of an LA funded placement
at a privately run special school.
However, all schools have a duty of care regardless and in all cases
the prosecuting authority remains to be the Local Authority.
Promoting the welfare of children should, under the
circumstances, include assessing the pressure and stresses that their
pupils find themselves under. It also includes the stresses they
cause the child in relation to pressure they place upon the family
as a whole.
It cannot 'promote the welfare of the child' if the
parents are unable to provide the time, space or materials (ie computers)
sufficient to carry out the instructions of the school and threatening
the children with sanctions upon return to the school is completely
If any person has genuine concern or
evidence that a child is in danger, then they should of course
raise it with their local Child Protection Teams, as they would
at any time.
We are being asked about the age its legal
to leave a child alone. The
government advice on this is here
ABOVE ALL, STAY HOME - STAY SAFE
Put together, it means that parents of children of
CSA are responsible for their children’s education at all times,
even if they send their child to school. The law states in broad
terms what constitutes a suitable education and how the state
ensures parents discharge their duty to provide a suitable education.
Even if your children attend a school, should
the education your child receives there not be suitable to his or
her needs as defined by s7 above, then technically you could be prosecuted,
although, of course, that is extremely unlikely
to happen, especially where the school is a state school.
But above all the welfare of the child trumps education.
Local Authority (LA) staff have an absolute duty to ensure the well
being of all children when conducting their various roles.
Coronavirus Act 2020
The corona Virus Act is now law.
As part of its campaign to combat the current pandemic,
the government has introduced emergency legislation called the
Part of the act (schedules 16 and 17) gives
the Secretary of State for education powers to temporarily close
schools in England (and likewise, the equivalent minister in Wales
for Wales) and to temporarily revoke certain sections of the
Education Act 1996.
Schedule 16 deals with school closure orders and other
matters arising from a school closure order.
It says that if a school
has been temporarily closed using powers in the Act then, in relation
to any matter stemming from the direction to close, S444 of
the Education Act 1996, will cease to be in force for any issue
relating to the school's closure.
This means that if your school
has been closed due to a government order, you will not be liable
for prosecution under S444 of the Education Act 1996 if your child
subsequently fails to attend during the closure of the school.
S7 however, remains in force, so you
should still make reasonable steps to ensure your child(ren)
receive a suitable education during the pandemic.
The enforcement sections of the Education Act 1996
(S437 & S444)
have effectively been suspended during your child's school closure.
there is no penalty for failing to provide a suitable education
while your school is closed. If your school is open and functioning
outside the directions of the Coronavirus Act 2020, you remain
subject to S437 - S444 depending on your circumstances.
This means that during a period of closure
directed by the Secretary of State, the school has no legislative
power to force you to undertake any particular form of work during
the closure period since the only sections available to them to
sanction you have been suspended.
Education & Health
Care Plans (EHCPs)
Activation of the Act
The Coronavirus act 2020 is what is known as a "sunset
act" meaning it is an emergency act which will cease to be law
two years after it is fully enacted (receives Royal Ascent) and the
secretary of state has informed everyone necessary.
Notices under the Act are valid for one month but
can be repeatedly made with reasons given, Reasons must relate to
Vicky Ford has issued an open letter
to children and young people with SEN, their parents, carers, families
and others who support them (see IPSEA link at end). Some important
elements in Vicky Ford’s open letter are:
Vulnerable children include those who have a social
worker and those children and young people up to the age of 25 years
who have EHC Plans.
Those who have a social worker include those who
have a child protection plan and those who are looked after by the
A child may also be deemed vulnerable if they have
been assessed as being in need or otherwise meet the definition in s17
of the Children and Family Act 1989 (CIN).
A child's eligibility for free school meals should
not be a determining factor when assessing vulnerability, because
LAs and or parents may use this to either get a school placement
or force a child to school
Those with EHCPs should be risk assessed by their
nursery, school or college in consultation with the LA
and parents to decide whether they need to continue to be offered
a place at school or college or whether they can have their needs
met at home.
This assessment could include necessary carers, therapists
or clinicians visiting the home to provide essential services.
with EHC Plans can safely remain at home. (See the main IPSEA link
at the end of this document for more details)
Whilst children are at home due to school
closures, parents have the same duty and rights under S7 of the
Education Act 1996 as other parents, which means that parents have
a duty to ensure their children receive a suitable education according
to their age aptitude and ability and any special
An EHCP is only a legally binding document
if it has been finalised. Or if an existing EHCP
is being amended the provision included continues to be lawful until
amendments have been added and finalised.
The provision outlined in the plan is usually delivered by teachers
employed by your child’s school and or other professionals named
in the plan, such as Speech and Language Therapists (SALT) and Occupational
It seems reasonable to assume that parents
will not be expected to implement, deliver or facilitate the EHCP
provision since schools have closed.
Since S444 and S437 of the Education act 1996 are
both suspended while a school has an authorised closure, parents
cannot be prosecuted for failing to provide a suitable education
due to circumstances arising from the closure.
Ultimately it is the duty of the LA
to ensure EHCP provision is implemented and facilitated.
The Coronavirus Act 2020 says that LAs'
statutory duty to provide the EHCP criteria, provision and school
or college placement is temporarily suspended. Although LAs are encouraged
to provide support to the best of their ability for those children
who need it.
The Minister's open letter suggests the government
will be seeking to amend regulations on the time scales for the EHC
Plan processes where it is appropriate.
As yet IPSEA have not seen
any proposed drafts and will keep this under review; however it
is important to recognise that even if there are no changes to legislation the
LAs' ability to comply with deadlines may be impeded
by staff absences.
Yes, the SEND Tribunal has confirmed that hearings
will be on paper or by telephone and where possible by video starting
on Monday 23.3.20
The Tribunal (SENDIST) has asked parties NOT to
call the Tribunal until 2 DAYS before hearings if they haven’t heard
anything because, like every public service, they are affected by
is expected there should be no need to adjourn hearings if parties
are ready to go ahead, even though they are currently not able to
take place in person.
For further information on how telephone and
video hearings will be used during the COVID-19 outbreak, visit
the IPSEA web site.
While annual reviews are a mandatory requirement,
parents attending in person is not.
The Coronavirus Act 2020 allows the requirement
to carry out an Annual Review (AR) to be temporarily ‘disapplied’
where it is considered to be ‘appropriate and proportionate’.
Otherwise, Annual Reviews are mandatory
and apply to all children who have EHCPs regardless as whether
they attend school or are home educated.
If you feel there is an urgent need to amend the provision
or placement in the child or young person's EHCP, speak to the
school and/or the LA to establish what review processes
could be put in place.
Should parents need independent SEND advice we
suggest you visit the IPSEA web site and leave a message for a call
back on their online facility for FREE impartial legal advice.
your child is not well enough to attend school you must keep them
at home. Fines or penalties for parents who fail to send
their children to school have been temporarily disapplied (see
above re S437 and S444).
duty to make the provision in an EHCP may be temporarily amended
to a ‘reasonable endeavours’ duty.
This could be implemented
via an order of the Secretary of State, which would have effect for
one month (although further orders could be made if necessary).
order would need to set out why the Secretary of State considered
this to be “appropriate and proportionate action in all circumstances
relating to the incidence or transmission of coronavirus.” This means
that during the specified period the LA needs to do whatever it reasonably
can to put provision in place, but if they cannot do so they would
not necessarily be breaching the law.
duty of schools to admit a child where the EHCP names that
school may be temporarily disapplied.
Again, if there could be a risk to the child or young
person’s health, well being or safety if they do not receive a particular
provision or intervention, raise this with your school and LA without
your child is not registered at a school (Home Education)
If you have previously deregistered your child, making
you a ‘home educator’, then S437 will remain operational in your
circumstances, regardless of any orders being made to close local
The LA would naturally be hampered in any action against
you due to a difficulty in finding a school which they could name
in a School Attendance Order.
Should you be in this situation, I suggest you join
one of the main Home
Education Forums and ask for support there.
It is your decision. As parent you should ensure
you meet your duties under S7 above. However, if the schools have
been closed by government order, then the work set by the school
is an offer of assistance to you as the parent. It is your choice
whether you take that offer up.
You could decide to follow all of the school’s suggestions,
because you want your child to have covered all the relevant topics
for when the schools reopen. This may be particularly relevant as
your child approaches exams. Alternatively, you may decide to use
some of the material, but not all.
You may even choose not to use any of
the material and provide an alternative form of education for your
If the powers in S1 of Schedule 16 of the Coronavirus
Act are in force, then the school is ‘closed’ and there is no requirement
for you to submit work by any deadline.
the school to have a duty to report a concern to the Child Protection
Team, they would need a reason to believe there is a serious risk
of significant harm to the child. A failure to keep in touch
with the school or complete work, would not be
sufficient reason of itself to arrive
at that conclusion. Although either may be a contributory factor
leading towards such a conclusion where other reasons are present.
A ‘reason to believe’ could include things like
previous serious concerns. (Such children are likely to be on the
at risk register,) or more recent, current reports to the children's
services relating to the child’s welfare. These could come from any
agency or even a member of the public.
Some parents are saying they want to follow the school's
provision, but for various reasons they cannot. These may include
not owning a computer, or having too few computers in the home. The
parents may be working long and demanding hours from home and may
not be available to supervise their child's work. The child may have
an SEN with an EHCP which requires complex support the parents are
unable to provide.
In such cases we recommend you discuss these with
the school, preferably in writing (email or letter.) failing that
a telephone conversation with a senior member of staff. If you have
a social worker, you should discuss it with them.
Keep a record of what is said, when and by whom.
If the powers in S1 of Schedule 16 of the Coronavirus
Act are in force, then the school is ‘closed’ and there is no legal
requirement to attend. You may choose to 'attend' the classes your
school is providing online, but it is not mandatory.
You are not legally required to keep evidence of
the education that your child is receiving; however, while it is
exceedingly unlikely, the LA may still make ‘informal enquiries’
about your provision. We would therefore (in an abundance of caution,)
suggest you keep some form of record regarding what you have done. This
may be in the form of pictures, screen shots, a scrap book or diary.
It may be a built in part of your provision for the child to do this.
However, There is no need to labour it.
In the extremely unlikely event that the LA make
contact, it is good practice to:
- keep a written record of correspondence
and telephone conversations.
- include times and dates of contact or receipt
In the case of telephone conversations you also need:
name and 'business' address of who you spoke with
- an outline
of what was said.
To ensure everyone agrees with what was said, it is
good practice to confirm a telephone conversation in writing with
We always recommend that contacts between parents
and local authorities are done in writing. This is to ensure that
an accurate record of the exchange is kept. We also recommend that
you keep copies of your letters to them.
Though again, such contacts remain unlikely,
and they appear not to have any power to prosecute you for truancy
during the school closure.
The government has released further guidance
for schools, colleges, LAs, setting out their approach to maintaining
educational provision this including a full list of key workers (see
IPSEA link below). However, this ‘final’ list of key workers has
been amended a couple of times. So it’s possible it may continue
to be amended.
Re-Opening of Schools
We have produced this new guidance on the announcement
of the re-opening of schools from June.