Summary: Miss X complains the Council delayed arranging a school place or alternative provision for Child Y, which meant they were without education for a year. We find fault with the Council for the delay in assigning Child Y a school place, and for failing to arrange alternative provision meanwhile. We also find fault with the Council for its complaint handling. The Council has agreed to make financial payments in recognition of the distress and missed provision, as well as carry out service improvements.

The complaint

1. Miss X complains the Council delayed arranging a school place or alternative provision for her son, which resulted in him missing a year of education.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

5. I understand there are current concerns from Miss X that since starting at the assigned school, Child Y has been on a reduced timetable. I have not investigated this part of the complaint as Miss X has not complained about it to the Council. If Miss X remains unhappy about the actions after Child Y started the new school, she should complain to the Council. If she remains unhappy after this, she should bring the new complaint to the Ombudsman.

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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. I invited Miss X and the Council to comment on my draft decision and considered any comments received.

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What I found

Law and administrative background

School Admissions

8. The Department for Education issues statutory guidance about school admissions in The School Admissions Code (“the Code”).

Fair Access Protocols

9. Each local authority must have a Fair Access Protocol (“FAP”) for vulnerable and/or hard to place children (The School Admissions Code 2021, 3.17). The Council’s Fair Access Protocol says children placed under this have to meet its criteria, including: they are not already on the roll of a school; and who are having difficulty in securing a school place in-year, and it can be demonstrated that reasonable measures have been taken to secure a place through the usual in-year admission procedures.

General section 19 duty

10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Educational provision – available and accessible

12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

13. Miss X moved with her children to the Council’s area in July 2023. In August 2023, Miss X made an application to the Council for a school place for Child Y. She requested places at three local secondary schools. The Council contacted the previous Local Authority for Child Y who confirmed there was no EHCP for them.
14. Between 4th September and 20th October 2023, the Council contacted Miss X’s preferred schools. All three schools declined due to availability. The Council told Miss X the outcome and invited her to make a further application.
15. Between November 2023 and February 2024 the Council tried to follow up with Miss X about a new application for Child Y.
16. On 8th February, the Council referred Child Y to its Fair Access Panel (FAP) for allocation to a school.
17. Miss X submitted a new application on 16th February. The Council contacted the preferred schools who declined due to availability of space. The Council referred Child Y’s case to an advisor to work directly with the family.
18. Miss X told the advisor that she does not want to apply for further mainstream schools as she is concerned that Child Y has special educational needs.
19. The Council had internal discussions about what would be suitable for Child Y. Its records say

• Child Y may not be best suited to a mainstream school,
• alternative provision cannot be provided if Child Y is not on roll at a school, and
• the case should be heard at the Fair Access Panel (FAP).

20. Child Y’s case was heard at FAP on 13th March and the Council assigned Child Y a space at a mainstream school. The school refused to admit Child Y as it had concerns that it could not meet Child Y’s needs.
21. In April, the Council’s notes say it was of the view that Child Y needed to be on roll at a school and then an application could be made for alternative provision. However, it would place the admissions process on hold while it sought further information about Child Y’s needs.
22. In August Miss X sought an EHC Needs Assessment for Child Y. The Council heard the case at its EHC Needs Assessment panel in September and decided the case did not meet the criteria for assessment. It sent its decision letter to Miss X refusing to assess.
23. The Council decided that Child Y should attend the assigned mainstream school. It told Miss X that she could make a new application for an EHCP once there was more information about Child Y’s needs, which may be obtained from them being in school.
24. Child Y started at the assigned school in October 2024.

Complaint handling

25. Miss X complained to the Council in May 2024 that Child Y was still without a school place.
26. The Council acknowledged Miss X’s complaint. Miss X bought her complaint to the Ombudsman who asked the Council to respond to the complaint. The Council did not provide a complaint response to Miss X.

Analysis

Section 19 duty

27. In response to my enquiries, the Council has recognised there was a delay in assigning Child Y a school place. The Council also told us that it did not consider there was a section 19 duty to Child Y because

• it had conducted work with Miss X to understand why Child Y was not in school,
• it needed to understand Child Y’s needs,
• it advised Miss X of the availability of schools and her right to appeal the decisions by the schools not to accept Child Y, and
• it considered the duty again when Miss X requested an EHC Needs Assessment, but there was not enough evidence to trigger the duty.

28. I am concerned the Council has not properly understand its duty under section 19. The Council was aware from the point that Miss X applied for the schools that Child Y was in its area and without access to education. I accept the Council considered its section 19 duty at this point and tried to find Child Y a school by contacting the preferences Miss X submitted. It also contacted the previous Local Authority to find out support needs. However, when it became obvious the schools contacted could not accept Child Y, the Council should have again considered whether it had a section 19 duty as it was clear that Child Y was without access to education.
29. The Council has said some of the delay assigning Child Y a school place is down to the confusion about whether Child Y had an EHCP and Miss X’s request that a mainstream school not be allocated. I accept that these issues may have delayed assigning a school place. However, this does not detract from the Council’s responsibility to ensure that Child Y had access to full time education meanwhile.
30. We are concerned the internal communication and the communication to the Ombudsman seems to be the Council believes alternative provision should only be sought if a child is already on roll at a school. The Council has also indicated that schools should arrange this. This is in direct contradiction to the statutory guidance which says Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school.
31. It is not acceptable for the Council to state that Child Y needed to be on roll at a school for alternative provision to be applied for. Nor is it reasonable for the Council to rely on schools to apply for alternative provision where it is aware a child is not accessing full time education.
32. In this case, Child Y could not attend school as they had no accessible school place. Regardless of whether they were on roll of a school or not, the Council had a duty to arrange suitable education while it found Child Y a school place as it knew Child Y could not access education.
33. Failure to do so is fault by the Council, resulting in Child Y being without the access to education they were entitled to. This occurred at a very key transition point for Child Y.

Complaint handling

34. Miss X complained to the Council in May 2024. It acknowledged her complaint, and despite being asked by the Ombudsman to provide a complaint response, the Council has not been able to show it considered the complaint or provided a response to Miss X.
35. I appreciate the Council felt it resolved the issue by assigning a school for Child Y. However, this did not address Miss X’s complaint or the continuing injustice which was that Child Y had been without access to full time education.
36. The Council should have considered Miss X’s complaint under its complaints procedure and issued her with a response. Failure to do so is fault, causing distress and uncertainty to Miss X.

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Agreed Action

37. Within four weeks the Council has agreed to

• Write to Miss X and apologise for the fault in failing to arrange alternative provision for Child Y and for its complaint handling.
• Pay Child Y £7200. This is calculated at £2400 per term that Child Y was without access to full time education or alternative provision. This is calculated to be from Oct 2024 when it became clear Child Y was without an immediate school place, until Oct 2025 when they started the new school.
• Pay Miss X £300 in recognition of the distress caused by the fault in failing to arrange provision and for failing to consider her complaint.

38. Within 12 weeks the Council has agreed to

• Review how it will ensure complaints received are considered and responded to in line with the complaints policy.
• Review its guidance and policy for arranging alternative provision where a child is not on roll at a school.
• Provide further training for staff on how to consider its duties under Section 19.

39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman