Hi, I wanted to get some advice around our 14 daughter's educational needs, who has an ADHD diagnosis. Our daughter also has emotional/mental health needs & has an assigned Care-Codinator through CAMS. We have battled and struggled as a family to maintain a regular placement in mainstream education since the Covid pandemic but it's not working for her. We are aware that under the new legislation, parents can be prosecuted for the children's poor attendance record . We would be grateful for any guidance or advice that you can provide us with. Best wishes Les Hanson The lack of specific educational provision for children with SEND. The mainstream school 8.30am to 3pm environment has been tried tiresly with our Daughter for over 5 years & just doesn't work for her
A: SenseCheck
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- 28 Aug 2025
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Yes
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Complex
Draft Simple answer: Parents may be prosecuted or face a fine for their child's non-attendance at school. However, there are legal protections and defences where non-attendance is a result of unmet SEND needs or medical difficulties for which parents should not be penalised. In order for a parent to defend themselves, they need to prove their child's non-attendance is linked to medical or SEND difficulties and that they are working with relevant professionals (for example, CAMHS).
Draft Technical answer: Under the section 444 Education Act 1996, a parent may be prosecuted if a child of compulsory school age fails to attend school regularly where a reasonable justification for failing to cause the child to attend cannot be proved. However, section 444(2A) contains a statutory defence where the reason for non-attendance is sickness or any unavoidable cause. The evidence of a CAMHS, GP or other clinician is highly relevant in this context.
Under the Equality Act 2010, ADHD is considered as a disability - it is a mental impairment that is long term and has an adverse effect on the person's ability to carry out day-to-day activities. ADHD related absences will therefore fall within the exceptions at section 444(2A) above if supported with the relevant evidence. Further, absences caused by disability are not treated in the same was as ‘truancy’ and reasonable adjustments must be made by the local authority. This duty is contained in section 19 Education Act 1996, which states that arrangements for the provision of suitable education “at school or otherwise than at school” for children whose attendance (or receipt of suitable education) is affected by reason of illness, must be made. “Suitable education” is that which is suitable to the child’s age, ability and aptitude, and any special educational needs. If one has not already been provided, an EHC plan should be put into place by the local authority pursuant to section 42 of the Children and Families Act 2014.
- 11 Aug 2025
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Yes
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Complex
The Education Act 1996 imposes a duty on local authorities under section 19 to arrange suitable education at school or otherwise for children of compulsory school age who, by reason of illness, exclusion, or otherwise, may not receive suitable education unless such arrangements are made. “Suitable education” is that which is suitable to the child’s age, ability, aptitude, and any special educational needs.
Where a child has diagnosed ADHD and mental health needs, compounded by persistent difficulty attending mainstream settings despite prolonged attempts at reintegration, the local authority must consider alternative provision. This duty applies regardless of whether the child has an Education, Health and Care Plan (EHCP), although securing an EHCP under the Children and Families Act 2014 will generally provide more robust and enforceable provision tailored to the child’s needs.
Section 42 of the Children and Families Act 2014 imposes a duty on local authorities to secure the special educational provision set out in an EHCP. The needs described—ADHD, emotional and mental health difficulties, prolonged inability to cope in full-time mainstream—strongly indicate that a statutory assessment should be requested if not already in place.
The Equality Act 2010 applies to schools and requires them to make reasonable adjustments for disabled pupils (which includes those with ADHD and mental health conditions that have a substantial and long-term adverse effect on day-to-day activities). Failure to adjust the school day, environment, or approach to meet the needs may amount to discrimination.
Where attendance is irregular due to unmet needs, section 444 of the Education Act 1996 contains the offence of failing to secure regular attendance. However, section 444(2A) provides a statutory defence where the parent can show that the child’s absence is due to sickness or other unavoidable cause, or where the school’s failure to make reasonable adjustments or the council’s failure to arrange suitable provision has prevented attendance. Professional evidence from CAMHS and other clinicians will be crucial in establishing this.
Government guidance on “Alternative Provision” (DfE) states that provision should begin as soon as it is clear that the child will be away from school for 15 days or more (consecutive or cumulative), and should be of equivalent quality to full-time education, though not necessarily in the same setting.
11 Aug 2025
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Comment