Summary: The Council was at fault as it failed to provide a suitable alternative provision for Miss X’s child from January 2023 to November 2024, and it poorly communicated and handled her complaint. It was not at fault for making a safeguarding referral. The Council will apologise and make payments to Miss X to recognise the injustice caused by the loss of education and its poor communication and complaint handling. The Council will also remind staff of its duties to consider the alternative provision duty properly to prevent reoccurrence.

The complaint

1. Miss X complained the Council:
1. did not provide a suitable alternative provision for her child, Y, from January 2023 to November 2024 after Y stopped attending school in December 2022 due to a medical reason;
2. made repeated requests for further medical evidence without providing any clarity on what it required;
3. made an incorrect Multi-Agency Safeguarding Hub (MASH) referral for educational neglect;
4. did not obtain parental views during Y’s Education, Health and Care (EHC) needs assessment process meaning it named an unsuitable school in Y’s first EHC Plan issued in December 2024;
5. failed to provide the special educational provision (SEN) provision outlined in section F of Y’s EHC Plan from January 2025 onwards; and,
6. was poor in its communication and complaint handling.
2. As a result, Miss X says Y’s education and well-being suffered, and it caused her family distress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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)
9. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
10. 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)
11. 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

12. I have not investigated Miss X’s complaint at 1d) above about the Council’s failure to seek parental views during Y’s EHC needs assessment which meant it named an unsuitable school in their EHC Plan. This is because Miss X had a right of appeal to the SEND Tribunal about the named school in Y’s Plan and it was reasonable for her to have used that right. Her complaint about the Council’s failure to obtain parental views forms part of the Council’s decision-making process and is therefore not separable from the decision itself which carries an appeal right. The SEND Tribunal is the appropriate place to challenge the Council’s decision and decision-making process.
13. I have not investigated Miss X’s complaint at 1e) above about the Council’s failure to secure section F of Y’s EHC Plan. The Council has not had the opportunity to consider this part of Miss X’s complaint. It is reasonable to expect her to complain to the Council first to allow it an opportunity to investigate and reply. If Miss X remains unhappy it is then open to her to complain to us.
14. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so. Miss X said the Council failed to arrange suitable alternative provision for Y from January 2023 but she did not complain to us until June 2024. However, Miss X’s complaint about this issue was an ongoing matter and continued into our 12-month period, so I have decided to investigate what happened from January 2023.

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How I considered this complaint

15. I spoke to Miss X about her complaint.
16. I considered the Council’s response to our initial enquiries as well as relevant law, policy and guidance.
17. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

18. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. 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)
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time: Out of school, out of sight? published July 2022
21. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

22. Where councils arrange for schools or other bodies to carry out its functions on its behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure its duties are properly fulfilled.

The Council’s complaints policy

23. The Council publishes its complaints policy on its website:

• It will provide a written response at stage one within 10 working days.
• It will provide a written response at stage two within 20 working days.

24. If it takes longer, the Council will contact complainants to explain why and give them a revised date.

What happened

25. This section sets out the key events in this case and is not intended to be a detailed chronology.
26. Miss X’s child Y is of secondary school age. Y has Special Educational Needs (SEN) and is noted to experience high levels of anxiety in and about school.
27. In December 2022 and in their final year of primary school, Y stopped going to school due to anxiety.
28. In January 2023 Y’s primary school contacted the Council for support due to Y’s absence. The Council’s Education and Inclusion Partnership Team (the EIP Team) whose role includes providing support with school attendance, asked Y’s school to provide medical evidence in relation to their absence.
29. In March 2023 an officer from the EIP Team attended Y’s Team Around Family (TAF) meeting (a meeting which brings together the family and relevant practitioners to create a plan to support the family’s needs) and said Y’s absence from school should be recorded as illness. In the same month attempts to engage Y in school on a reduced timetable proved unsuccessful.
30. In April 2023 Miss X provided medical evidence from Y’s GP which she said the EIP Team accepted at the time.
31. In April 2023 an officer from the EIP Team attended another TAF meeting during which concerns were raised regarding the lack of suitable alternative provision for Y. Miss X said the officer told Y’s school not to provide an education while Y was unable to attend school.
32. Miss X said the EIP Team did not attend the TAF meeting in May 2023 nor did it provide any update on funding for a tutor for Y or any other suitable alternative provision.
33. In July 2023 the EIP Team told Y’s primary school not to authorise Y’s absence from school due to insufficient medical evidence. Miss X immediately queried this change in the Council’s position given that it had previously accepted the medical evidence to be sufficient. She said she received no response to her query.
34. In the same month the Council asked Y’s primary school to submit a Multi-Agency Safeguarding Hub (MASH) referral citing educational neglect. Miss X disagreed with this referral given that she had been asking the Council to provide a suitable alternative provision for Y all along. She said while social services quashed this referral straightaway it nevertheless caused her distress.
35. In July 2023, Miss X said the EIP Team refused to attend further meetings including the TAF and transition meeting to Y’s secondary school.
36. Between July and September 2023, Miss X asked the EIP Team for clarity on what medical evidence it needed to authorise Y’s absence as illness but received no clear response.
37. In September 2023 Y went on roll at a secondary school but was unable to attend. On the EIP Team’s request, Y’s secondary school asked Miss X to provide medical evidence without explaining what was specifically required.
38. In October 2023 the Hospital and Outreach Education team contacted Miss X to provide information about its service but its offer was deemed unsuitable for Y as they were unable to leave their home to access it. Instead the Hospital and Outreach team agreed to support Miss X in collating information for an EHC needs assessment for Y. Miss X contacted the Council again to ask of its plans for Y’s alternative provision.
39. In January 2024 a TAF meeting was held during which a potential tutor for Y was discussed. Miss X said the EIP Team did not attend this meeting either.
40. By March 2024 Y had been out of school for over a year and Miss X had not received any clear advice or guidance regarding Y’s alternative provision, so she complained to the Council.
41. In April and May 2024 Miss X chased the Council for a response to her complaint but received no reply.
42. In June 2024 the Hospital and Outreach Education team shared details of a potential tutor with Miss X. Miss X contacted this tutor promptly but they failed to respond to her.
43. Miss X then complained to us.
44. In July 2024 the Council issued a stage one complaint response. In it the Council:

• apologised for a delayed response;
• listed support offered in the early stages of its involvement (up until January 2023) through various agencies such as an intervention through its mental health support team given Y’s anxiety was reported to be very high at the time;
• said it had not seen evidence from a medical provider who had seen Y which stated they were unable to attend school, hence it requested further medical evidence. Evidence previously submitted did not suggest Y could not manage school;
• noted Y’s secondary school considered the available medical evidence and made a decision to authorise Y’s absences so there would be no further confusion going forward;
• noted it approached the Hospital and Outreach Education team but this was not deemed a suitable option for Y at the time due to requiring an in-person attendance outside their home. But during a meeting in October 2023, it was acknowledged that Y had recently started receiving and engaging in weekly sessions at home from the Council’s Specialist SEND Support Service;
• said designated staff from the Hospital and Outreach Education team would build up Y’s case for an EHC needs assessment and had been advising in meetings for Y on the Council’s behalf;
• agreed to fund a tutor which the Hospital and Outreach Education team had found in June 2024 in line with section 19 of the Education Act 1996. It said this work would be overseen by the Specialist SEND Support Service on behalf of the Council until it completed Y’s statutory EHC needs assessment which would provide Y with a pathway back to school or to longer-term alternative provision.

45. In July 2024 Miss X asked the Council to escalate her complaint and requested it assess Y for an EHC Plan. In the same month various professionals made attempts to contact the tutor to arrange sessions unsuccessfully.
46. In September 2024 another tutor was sourced but deemed not suitable.
47. In November 2024 Y’s current tutor was finalised and started working with them. Miss X said Y started receiving nine hours of tutoring per week from December 2024 and continues to do so.
48. In December 2024 the Council issued Y’s first EHC Plan.
49. In January 2025 the Council issued a stage two complaint response. In it the Council:

• accepted it had failed to comply with its duty to provide suitable alternative education for Y in line with section 19 of the Education Act 1996.
• said it had sufficient evidence prior to February 2023 to trigger its section 19 duty. It did not need more as the available evidence was enough to record Y’s absence as illness from January 2023.
• noted that while Y received support from professionals from Specialist SEND Services and the Hospital and Outreach Education team, this was not equivalent to an offer of education. It said the delay in arranging suitable alternative provision for Y was partly due to its failure to provide a lead Council professional in the early stages of attendance concerns.
• said while it was not wrong to pursue a MASH referral, in hindsight it could have given more consideration before submitting it. But the lack of face-to-face interaction with Y and strained relationships between schools/professionals and Y’s family presented difficulties in seeking clarification that was needed to avert safeguarding concerns.
• apologised to Miss X and said staff had received training to develop better practices and a business case had been submitted to review the Council’s consideration of section 19 duties.

50. Miss X was dissatisfied with the Council’s response so she asked us to consider her complaint.

Findings

Alternative provision

51. In January 2023 the Council was aware that Y was not attending school. At this point it should have considered whether it owed Y a section 19 duty. It did not.
52. Evidence showed that it was in July 2024 that the Council confirmed it owed Y a section 19 duty and that it would fund a tutor for Y. Further, the Council’s stage two complaint response acknowledged it should not have made repeated requests for medical evidence because it had sufficient evidence prior to February 2023 to record Y’s absence as illness and thereby trigger its section 19 duty.
53. The Council accepted it should have made a section 19 decision to provide suitable alternative provision for Y as early as January 2023. The Council’s failure to properly consider its section 19 duty was fault. Y only started receiving alternative provision from early December 2024. The Council’s fault meant Y missed out on educational provision between January 2023 and November 2024 and that was a significant injustice.

MASH referral

54. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. The Council’s decision to make a MASH referral distressed Miss X, however the threshold for making such a referral is low. The Council may have, on reflection, accepted it could have done more at the time to avert making a safeguarding referral. However, I cannot say, even on the balance of probabilities, whether the Council would have made a different decision at the time if it had further information. Therefore, on balance, the Council’s decision to make a safeguarding referral was not fault.

Communication and complaint handling

55. The Council’s communication with Miss X was poor. Miss X asked for support, clarity on requested medical evidence and requested alternative provision for Y on several occasions. The Council failed to respond to Miss X’s requests for alternative provision and clarity on requested medical evidence in a timely manner. This was fault and caused Miss X avoidable frustration.
56. The Council also took nine months to complete its investigation into Miss X’s complaint when its published policy outlines clear timescales of 10 and 20 working days for stage one and two complaint responses respectively. This was fault which added to Miss X’s frustration.

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Agreed action

57. Within one month of this decision the Council will:
1. Apologise to Miss X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Miss X £9,000 to acknowledge the injustice caused from the lack of alternative provision for Y from January 2023 to November 2024 in line with our guidance on remedies. This equates to a payment of £1,500 per term for six missed terms. In calculating this figure, I considered the amount of provision in place, Y’s needs and their school year.
3. Pay Miss X £250 to acknowledge the avoidable frustration caused to her by the Council’s poor communication and delays in responding to her complaint.
58. Within two months of this decision the Council will remind relevant officers, either through training or a briefing note of the Council’s duties to consider its section 19 duty as soon as it is aware that a child is not attending school. The Council will also provide relevant officers with a copy of our guidance Out of school, out of sight? published July 2022.
59. The Council will provide us with evidence it has complied with the above actions.

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Decision

60. I found fault causing injustice. The Council has agreed to my recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman