Summary: Miss E complained the Council failed to secure alternative education provision, after her child could not attend school from January 2024 onward. We upheld the complaint finding the Council did not properly consider her child’s need for alternative provision before November 2024, when it provided an Education, Health and Care Plan. We considered that if it had done so, it would have made such provision. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy the injustice caused to Miss E as a result and to improve its service.

The complaint

1. Mrs E complained the Council failed to secure education for her child ‘F’, after they could no longer attend school from January 2024 onward.
2. Mrs E said this negatively impacted on F’s education. While F could attend alternative provision from March 2024, this was only because Mrs E paid for it. In addition, Mrs E said she experienced avoidable frustration and distress in making service requests and in complaining to the Council.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I did and did not investigate

9. I only investigated events up to November 2024 when the Council issued F with an Education, Health and Care (EHC) Plan. I noted Mrs E’s dissatisfaction with the education provision made for F extended beyond this date. However, I could not investigate the Council’s actions once it issued the Plan for reasons explained in my findings below (see section: “the scope of the investigation”).

Back to top

How I considered this complaint

10. I considered evidence provided by Mrs E and the Council as well as relevant law, policy and guidance.
11. I gave Mrs E and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made before finalising the statement.

Back to top

What I found

Relevant legal considerations

Special Educational Needs and Education, Health and Care Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and arrangements to meet them.
13. Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. If the Council refuses to assess, then a parent can appeal its decision to the Tribunal.
14. Where the Tribunal upholds an appeal, the Council has 14 weeks to then complete its assessment and decide whether to issue an EHC Plan.
15. The courts have found that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, connected to, or could have been part of, that appeal. (see R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
16. This has implications when we consider complaints that a council is not providing education for a child or young person not attending school. We have to consider if the reasons for their absence are linked to a parent’s disagreement about the special educational provision or educational placement named in an EHC Plan. If we find that is so, then we cannot investigate a lack of special educational provision, or alternative educational provision.
17. The period we cannot investigate starts from the date the Council gives the parents or young person an appealable decision.

Alternative provision

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. This applies to all children of compulsory school age living in the local council area, including those enrolled at school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. The education provided by the council must be full-time unless the council decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. 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
22. We recommended councils should:

• consider the individual circumstances of each case. They should be aware they 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;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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.

23. In addition, the courts have considered the circumstances where the section 19 duty applies. Caselaw has found a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child “reasonably practicable” for it to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (see R (on the application of DS) v Wolverhampton City Council 2017)
24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure they fulfil their duties.

Relevant Council policies

25. The Council has a policy that covers “Education for Children with Medical Needs”. This sets out the Council’s legal duty to make alternative provision for children out of school for reasons of illness, as summarised above. It sets out the aims of the policy as including trying to keep children in education at their ‘home school’ as far as possible. It says often schools can provide support for children to attend school or help arrange provision for children who are out of school. The Council says it will only become involved if a school cannot provide education suitable for the child’s needs or make full-time provision.
26. The policy explains the Council has contracted with a third-party provider to help meet its legal duty to meet the education needs of children absent for health reasons for more than 15 days. It says it aims to put this provision in place “as soon as” the school tells it a child’s absence will last more than 15 days. It explains that it refers children to the third-party provider via an ‘inclusion panel’. It explains how schools can make referrals to the panel.
27. In a version of the policy in force for some of the events covered by this complaint, the Council also required medical evidence from a consultant about the child’s absence. The Council has recently changed this policy which no longer refers to this requirement. It says it will be for parents to provide medical evidence, to explain absence, which the Council will consider as part of its decision making.
28. The Council has a corporate complaints procedure which has three stages. At the first stage the service complained about will aim to answer the complaint within 10 working days. It says some replies may take longer. In these cases, it will tell the complainant when they can expect a reply. The second stage requires the service director to reply. The Council says it will aim to do this within 17 working days. The third stage of the complaint procedure is for the complainant to contact this office where we will consider undertaking an independent investigation.
29. In the last year the Council recorded providing late replies to complaints about special educational needs on two occasions, at stage two of its procedure. In those cases, the delays were less than 20 working days.

The key facts

30. In late January 2024 F was in Year 5 of their primary education, enrolled in a mainstream school. Mrs E asked the Council to carry out an education, health and care needs assessment. The request explained F had autism and faced barriers to their attendance. Mrs E said F could not attend school full-time because they had an ‘EBSA profile’ (emotionally based school avoidance). She said F became overwhelmed with anxiety and could not cope with school. The form said F had last attended school in mid-January 2024.
31. The school added comments to the request form. It said it was “very concerned with [F’s] school attendance in recent weeks” and they had “missed a large amount of days at school”. The school set out measures it had taken, or could take, to help support F’s return to school.
32. In February 2024 the Council refused Mrs E’s request to undertake an education, health and care needs assessment. In March 2024 Mrs E appealed this decision to the Tribunal. She also arranged for F to begin attending an alternative education provider, for two sessions a week, costing £135 a week.
33. Around the same time Mrs E also made a complaint to the Council. She wanted it to provide alternative provision for F under Section 19 of the Education Act. The Council rejected Mrs E’s complaint and said for it to provide this it needed:

• a referral from F’s school. It said the school had not presented F’s case to its inclusion panel and it would expect it to offer interventions to support F’s attendance;
• support for the request from a senior consultant in children’s mental health or community paediatrics.

34. In May 2024 Mrs E escalated her complaint to stage two of the Council’s complaint procedure. The Council recorded receiving the complaint, but did not reply.
35. In June 2024 the school sent an email to the Council expressing concern at F’s continuing absence from school. They said they remained willing to have F at school. They had offered for learning support assistants to visit F at home, but Mrs E had declined this. They did not know what else to do. The email referred to F’s case being “on the inclusion panel” agenda the previous term. It also referred to conversations the school had with other Council officers. The school said those officers had promised to revert with further advice but had failed to do so. During this investigation the Council has also provided a witness statement produced by F’s school in April 2024, for the Tribunal which considered Mrs E’s appeal. In this the school also listed reasonable adjustments it had made, or offered to make, to support F’s attendance at school.
36. In July 2024 the Council recorded two senior officers meeting to consider F’s continued absence from school. They noted that F now had a letter from their GP saying they were too ill to attend school. The notes record the Council discussing whether it would need to make alternative provision for F after 15 days. It also said the school had told it that it had a reintegration plan for F, but that Mrs E would not engage with this. The Council recorded its view the school could meet F’s needs and this is also why it considered F did not need an EHC Plan.
37. At the end of July 2024, the Tribunal upheld Mrs E’s appeal and ordered the Council to complete an education, health and care needs assessment for F. In its decision the Tribunal noted the school’s view it could meet F’s needs and credited it with making adjustments to meet F’s “identified concerns”.
38. However, the Tribunal also found F’s needs were not fully identified, which is why it supported a needs assessment. It said the school had not therefore adequately addressed all F’s needs. As a result, F could not at that time, “engage in learning in a mainstream setting”.
39. In late-November 2024 the Council completed its assessment and issued F with an EHC Plan. This named their mainstream school.
40. On receipt, Mrs E asked the Council to make alternative provision for F instead, saying they remained too ill to attend the mainstream school. Later, Mrs E instructed solicitors to issue a pre-action protocol letter to the Council (the first step where someone might seek a judicial review of the Council’s actions). The letter said the Council had failed to provide education for F in line with its legal duty under Section 19. While in December 2024, Mrs E appealed the content of the EHC Plan, including that it named the mainstream school.
41. At meetings in December 2024 and January 2025 the Council considered the case for making alternative provision for F. It considered the education provision set out in their EHC Plan was accessible to them. So, it did not need to make any alternative provision nor refund provision paid for privately by Mrs E. It responded to Mrs E’s solicitor accordingly in January. The letter to the solicitor also referred to Mrs E’s outstanding complaint which it promised to respond to within 25 days .
42. However, it took a further two months for the Council to reply to Mrs E’s complaint at stage two of its procedure. In its final reply the Council defended not making alternative provision available to F before issuing their EHC Plan. It said that it considered F’s school could meet their needs, through making reasonable adjustments.

My findings

The scope of the investigation

43. As I explained above I considered I could only investigate the events covered by this complaint up to November 2024, when the Council issued F with an EHC Plan.
44. In its EHC Plan the Council named a mainstream school it considered F could attend, with the education provision to meet their needs set out in Section F of the Plan. Following issue of the Plan, Mrs E maintained that F could not attend the mainstream school because of their special educational needs and EBSA. The Council considered requests by Mrs E to make alternative provision available for F, but held to the view the mainstream school could meet F’s needs. Meanwhile, Mrs E also appealed the content of the Plan to the Tribunal, including the named school, arguing it could not meet F’s needs.
45. I found this dispute over the suitability of the school overlapped Mrs E’s request the Council make alternative provision for F because of their absence from school. F’s continued absence from school was due to their EBSA, which in turn resulted from their special educational needs. But the purpose of the Plan was to provide F with education to meet their needs, including taking account of their EBSA profile.
46. So, the Council, in its consideration of Mrs E’s request for alternative provision saw those matters as inextricably linked and I agreed they were. In which case, I could not investigate the Council’s decision not to offer alternative provision to F after issue of their EHC Plan. Because that decision was interlinked with the question of the suitability of the named school, which was a matter under appeal to the Tribunal.

Was the Council at fault before November 2024?

47. I had concerns about the Council’s policy for educating children with medical needs. I had no issue with the aims of the policy, nor the expectation it placed on schools to explore measures to keep children in school. But I found the policy too ‘hands off’ when it came to the Council considering individual cases. This is because it required schools to take the initiative if a child’s case was to go to the Council’s “inclusion panel”. This is in turn was the gateway for the Council commissioning alternative provision.
48. There is no fault in a council encouraging a procedure which asks schools to complete referral requests. But the Council is fettering discretion if it does not consider cases brought to its attention another way and that is a fault. Our view is that councils must consider alternative provision if they learn of a child’s absence from school, whatever the source of the information. This can include where a parent tells it or a school provides that information separate to a request for a case to go to the inclusion panel.
49. I also noted that in early 2024 the Council’s consideration of cases at its inclusion panel depended on it having medical evidence from a senior consultant. I accepted the Council would reasonably want some medical evidence where a parent argued a child was too ill to attend school. But this set the bar too high. Especially given that a child may have to wait to see a consultant. I was pleased to note the Council had subsequently removed this barrier from its policy. But it was fault that this was in place during some of the events covered by this complaint.
50. I considered these defects in policy likely impacted how the Council reacted when it first learnt of F’s absences from school. I found the Council had not provided a clear audit trail of its consideration of F’s case before November 2024. It knew from Mrs E’s request for an education, health and care needs assessment that by late January 2024 F had already missed some schooling. The form did not clearly state how much. But the concerns expressed by both Mrs E and the school should have been enough to prompt the Council to ask if it may have a duty to provide alternative provision. There was no evidence that it asked itself that question.
51. There was then evidence that between January and June 2024, F’s school had raised further concern at their continued non-attendance at school. The June 2024 emails showed an understanding that F’s case had been, or would be, discussed at an inclusion panel. Or in other words, the Council would consider making alternative provision. But the Council could not provide records showing such discussion took place, nor if it did, that it told the school or Mrs E of its consideration.
52. I found only two records suggesting the Council may have considered the request for alternative provision at all, before November 2024. First, in its response to Mrs E’s stage one complaint. But this contained no evaluation of F’s circumstances at the time. Instead, it rejected consideration of alternative provision based on the flaws in its policy set out above. Effectively, it shut the door on alternative provision before weighing the circumstances of F’s case.
53. Second, there was the note from July 2024, when senior officers discussed F’s absence from school. This suggested officers wanted to delay taking a view on whether to consider making alternative provision, despite knowing of F’s absence for several months. There was mention of F’s school having a reintegration plan to encourage their attendance. I also noted also the content of the school’s witness statement to the Tribunal which provided some detail of steps it had made to facilitate F’s attendance (or was willing to make). I assume officers were aware of this. But there was no record that showed officers had asked the key question about whether, even despite those efforts, education was accessible to F.
54. I found the Council at fault therefore for not adequately considering whether it should have made alternative provision available for F before November 2024.
55. In addition, I found the Council at fault for its complaint handling in this case. It failed to answer Mrs E’s stage two complaint within its publicised timescale, or anything approaching that. The Council persuaded me there was no systemic problem with its complaint handling, but that did not excuse the fault on this occasion.

What was the consequence of the faults?

56. On balance, I considered had the Council properly considered F’s potential need for alternative provision between February and November 2024, it would have done more to ensure they had some provision in place. That it did not, was an injustice to F.
57. I came to this view, finding the opinion of the Tribunal in July 2024 persuasive. The Tribunal clearly set out in its judgement that while it recognised F’s school had made efforts to support their education, it did not have a complete picture of their needs. And without that picture, F could not access school.
58. I cannot say definitively what F’s alternative provision may have looked like. I noted there was some evidence that Mrs E was reluctant to work with F’s school when it proposed learning assistants visiting the home or discussing a reintegration plan. I was also not persuaded F could have coped with the demands of a full-time curriculum nor provision that involved some part-time attendance at a school setting, without a needs assessment. But that did not lead me to find that Mrs E would not have engaged with any attempt to provide alternative provision for F. And clearly, F could cope with the limited alternative provision Mrs E arranged for them.
59. That provision mitigated some of the injustice caused to F. But that in turn only highlighted a different injustice. Mrs E paid for that provision when the Council should have offered some education provision to F, either directly or via consultation with their school. I considered the fairest remedy to this part of the complaint should therefore be for Mrs E to receive recompense for that. She provided records showing she spent just under £3300 on alternative provision for F, before the issue of their EHC Plan.
60. In terms of the impact of the poor complaint handling, I found this would have undoubtedly added something to Mrs E’s frustration, time and trouble above that which all complainants experience when they complain. So, I recommended a remedy for this also.

Back to top

Agreed Action

61. The Council has accepted the findings set out above. To remedy the injustice caused to Mrs E and F, it has agreed that within 20 working days of this decision, it will:

• apologise to Mrs E accepting the findings of this investigation (see also paragraph 62); and
• make a symbolic payment to Mrs E of £3500.

62. 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 agreed.
63. In addition, the Council has agreed to make the following service improvement, within three months of a date of this decision:

• it will revisit its current policy on making alternative provision for children who are out of school for reasons of illness, exclusion or otherwise. The policy will make clear the Council can consider making alternative provision in all cases where it learns of a child being out of school, not just where it learns of that absence from their school.

64. In my draft decision I also recommended the Council might to do more to issue advice to officers who decide on whether to make alternative provision on the importance of leaving an audit trail of their decision making. This was because of the Council’s failure to keep such an audit trail between January and November 2024. However, after considering representations by the Council on this point, I withdrew this recommendation. I recognised that after it issued F with an EHC Plan its record keeping on this point improved significantly. So, I accepted this showed a commitment by the Council towards taking accountability for its decision making.
65. The Council will provide us with evidence it has complied with the actions set out in paragraphs 61 and 63 above.

Back to top

Final Decision

66. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs E and F. The Council has accepted these findings and agreed action that I consider will remedy that injustice and help prevent a repeat. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman