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• 03 Jun 2025

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Can't answer yes or no.:

SM

This sound like a difficult situation. 

This is an answer based on the facts you have given and applied to the following guidance Arranging Alternative Provision: A Guide for Local Authorities and Schools (with pages reference where relevant). 

Found HERE

It is not legal advice. If you need formal advice you should think about consulting a solicitor specialising in special education needs law.

1. Section 19 of the Education Act 1996 – the core duty

• A local authority “must arrange suitable (and normally full-time) education for children of compulsory school age who, because of exclusion, illness or other reasons, would not receive suitable education” without it being arranged (p. 6) .
• “Suitable” means education that is appropriate to the child’s age, ability, aptitude and any special educational needs (p. 7) .

2. Why autistic burnout, EBSNA and extreme demand-avoidance are “health reasons”

The guidance treats mental-health barriers on an equal footing with physical illness:

• Provision may be part-time where full-time schooling is not in the child’s best interests “for reasons relating to their physical or mental health” (p. 18) .
• Education must address a child’s physical or mental health needs as well as academic needs (p. 17) .
• Once a school can no longer support those health needs, it should alert the local authority to put alternative provision in place (p. 22) .

Autistic burnout, severe anxiety and demand-avoidance are clinically-recognised conditions that prevent attendance; they therefore fall squarely within the “illness or other health reasons” limb of s 19.

3. Was it unreasonable to decline home tuition?

The guidance requires that provision:

• Involves parents and the child in deciding what will work (pp. 9-10) .
• Is delivered in an environment the child can tolerate, taking account of health and SEN (p. 17) .
• Is normally full-time, but may be part-time only if that is genuinely in the child’s best interests and is reviewed with a plan to increase when possible (p. 18) .

Where professional evidence shows that a tutor entering the child’s “safe space” would heighten distress and fail to engage him, a home-visit package is unlikely to meet the suitability test. Refusing it could  therefore be a reasonable, evidence-based stance, not an obstruction.

4. Has the Council already discharged its duty?

• Pointing to the mainstream place that the child cannot in practice attend does not discharge the s 19 duty; the authority must arrange education the child can actually access (p. 22) .
• Starting education “as soon as possible – and at the latest by the sixth school day” applies to absences for non-medical reasons, but the guidance still expects prompt action for health-related absence and notes that delay beyond 15 days of sickness triggers an obligation to act (p. 13) .

On the facts you have given, neither the mainstream place nor the rejected home tuition appears suitable, so the Council’s duty remains live.

5. Interaction with the EHCP

Although a local authority can name alternative provision in an EHC plan, the placement must be able to meet need and support reintegration; naming a school that itself says it cannot meet need is highly questionable practice (p. 31) . Your SEND Tribunal appeal is therefore the correct route certainly in the longer term.

6. Practical options now

1. Keep medical evidence current – CAMHS, GP or EP letters explaining that autistic burnout and EBSNA prevent school attendance and why home visits are counter-therapeutic.
2. Ask in writing for interim alternative provision under s 19 while the EHCP appeal is pending, citing the pages above.
3. Propose workable alternatives, for example:
   • small-group tuition in a neutral venue;
   • a therapeutic specialist setting experienced with demand-avoidant profiles;
   • an online package led by SEN-trained staff.
4. Consider requesting Education Otherwise Than At School (EOTAS) (at least in the short term) under s 61 of the Children and Families Act 2014 if no school placement can meet his needs.
5. Escalate if delay persists – formal complaint, Local Government & Social Care Ombudsman, or judicial review.
6. Correspondence - consider framing any correspondence in the language of the guidance referenced.

Key take-away

Section 19 is about suitability, not mere availability. Where mental-health factors—such as autistic burnout—make both mainstream attendance and home tutoring unsuitable, the local authority must design a package the child can really engage with. Until it does so, its statutory duty continues. 

I hope this is helpful and I look forward to reading any other suggestions.

Best wishes

Sean Kennedy 



Sean Kennedy

03 Jun 2025

This is helpful

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