The challenges of addressing unregulated provision

Emma Sanderson discusses the challenge of providing appropriate alternative provision to the most vulnerable pupils.

Section 19 of the Education Act 1996, states the local authority (LA) has a legal duty to secure suitable, full-time alternative education for children of compulsory age, if illness is preventing them from being able to attend school, if they have been permanently excluded from school or for any other reason. The alternative provision (AP) must be appropriate for their age, ability, aptitude, and special educational needs or disability (SEND) .

This can place LAs in a predicament if schools are unwilling to take a child or all schools in the area are full. Which is better – unregistered AP or no education? 

According to The Centre for Social Justice (CSJ) approximately 20,000 children and young people were placed in unregistered AP in 2022. The very fact the number is just an estimate, highlights the need for something to change, especially when this cohort consists of the most vulnerable and disadvantaged pupils: looked after children (LAC); those with SEND; education, health and care plans (EHCP); and those eligible for free school meals (FSM).

Unregistered AP is required to comply with basic regulations – for example, health and safety, however they are not required to adhere to safeguarding legislation such as ensuring teachers are qualified and have criminal record checks. No one authority has responsibility for them so they can easily slip through the net, and in some cases, the quality of experiences these children receive is questionable.

Provision providing ‘full-time’ education to either five or more pupils, or a child in care or with an EHCP or SEND statement, should be registered and come under Ofsted’s regulations and inspections, but currently there is no legal definition of ‘full-time’.

Since 2018-19, unregistered AP commissioned by LAs rose by 41%, to 8,320 in 2022. Schools commissioned 12,030 placements, 61% of which were unregulated compared with 20% commissioned by LAs.

There is no doubt that some unregistered AP provides irreplaceable support for children and young people who would otherwise be without education or care. This provision can be life-changing – but why are schools and LAs forced to turn to unregistered settings? Pupils’ needs are outstripping specialist provision, and with the continuing rise in EHCPs, this situation will not change in the future.

Why don’t these services register? Registration is complicated. In order to be approved by Ofsted, a provision has to offer a broad and balanced curriculum, some APs don’t have the scope to do this, rather focusing on supporting the child or young person to become ‘ready to learn’. Qualified staff also increase costs to the provider. 

All children deserve to be educated in a setting that is visible, safe and delivers a suitable quality of education. Until there are enough schools available for the most vulnerable among them, this issue is here to stay.