Summary: There was fault by the Council, because it did not arrange alternative provision for a child who could not attend school, and the Council has agreed to offer a financial remedy to reflect his loss of education. The Council was also at fault because of a delay in responding to the complaint, but this did not cause an injustice.

The complaint

1. I will refer to the complainant as Mrs C.
2. Mrs C complains:

• the Council did not agree to change her son, F’s, school placement, despite the school being unable to keep him safe;
• the Council did not arrange alternative provision for F when she withdrew him from school for this reason; and
• the Council delayed responding to her stage 2 complaint.

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The Ombudsman’s role and powers

3. 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)

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What I have and have not investigated

4. I have not investigated the first point of Mrs C’s complaint. This is because Mrs C has made an appeal to the SEND Tribunal about F’s school placement, which means we do not have jurisdiction to consider it, or any matter intrinsically linked with it.
5. My investigation has therefore covered only the second two points of Mrs C’s complaint.

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How I considered this complaint

6. I considered evidence provided by Mrs C and the Council as well as relevant law, policy and guidance.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

Legislative background

Alternative provision

8. 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.
9. 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)
10. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Mrs C’s complaint

11. The following will provide a summary of key events relevant to this complaint. It is not intended to give a detailed description of everything that happened.
12. F is on roll in Year 3 at a mainstream primary school. He often exhibits disruptive and dangerous behaviour. In response, in January 2024, the school placed F in a specialist class with several other pupils with behavioural issues.
13. In April Mrs C submitted a stage 1 complaint to the Council.
14. Mrs C said there was no information about the specialist class in any of the school’s published policies. She said F’s difficult behaviour had continued in the class, and that on several occasions the school had asked her to take him home. Mrs C said this meant F was not receiving education and was segregated from his peer group, which was in itself a trigger for his behaviour.
15. Mrs C said, as she did not feel the separate class was effective for managing F, she had now made the decision to keep him at home. She said the Council should now make arrangements for alternative provision under its section 19 duty.
16. Mrs C also explained she did not consider the school had the capacity to keep F safe, and that the Council had not provided proper support to the school in this regard. She asked the Council to undertake an education, health and care (EHC) needs assessment for F, and to find a suitable alternative placement for him.
17. The Council responded in May. It said it had supported the school in creating a risk assessment for F, which recommended several adaptations the school could make to help mitigate the risks to him and de-escalate his behaviour when aroused. The Council explained it remained satisfied the school could meet F’s needs, and that it expected him to return there.
18. Mrs C submitted a stage 2 complaint in June. She said the Council’s view the school could meet F’s needs was inconsistent with the fact they had agreed it would be appropriate to ‘unlawfully suspend’ him when necessary. She reiterated F was not safe while attending the school, and that it could not mitigate the serious risks to him, even with 1:1 support; and that segregation was having a negative impact on F’s mental health.
19. Mrs C explained again this was the reason she had decided to keep F at home, and that she considered the Council now had a duty to arrange alternative provision for him.
20. In July the school informed the Council it no longer believed it could meet F’s needs. The Council agreed to arrange alternative provision pending the finalisation of F’s EHC plan.
21. The Council commissioned an independent investigator to consider Mrs C’s stage 2 complaint, with the investigator submitting their report to the Council for adjudication in September.
22. The investigator did not uphold Mrs C’s complaint that F was inappropriately placed at the school, or that the Council should have arranged alternative provision for him. They also did not uphold Mrs C’s complaint the Council had not provided adequate support to the school in assessing F’s needs. However, the investigator found the Council had not given the school adequate support in assessing and managing the risks posed by F’s behaviour.
23. The investigator made several recommendations to the Council:

• progress F’s EHC plan;
• consider arranging catch-up provision to make up for the education F had lost;
• arrange alternative provision for F in a safe environment;
• consider reimbursing Mrs C for money she had spent on provision; and
• make a formal apology to Mrs C.

24. Later in September Mrs C approached the Ombudsman because she had not received the Council’s stage 2 response yet. We decided the Council should be permitted to finish its investigation and referred the matter back to it.
25. In October the Council issued F’s EHC plan. It named the original mainstream school as his placement. Mrs C has appealed against this to the SEND Tribunal, an appeal which remains outstanding.
26. In October the Council also provided its adjudication on the investigator’s stage 2 report. It accepted the investigator’s findings and recommendations, except for reimbursing Mrs C, because the Council had not agreed in advance to fund the provision in question.
27. After further discussion with Mrs C, in November the Council wrote to confirm it would not escalate her complaint further, and signposted her back to the Ombudsman.
28. Mrs C then referred her complaint to the Ombudsman again in March 2025.

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Analysis

29. I will address the two points of Mrs C’s complaint I have investigated in turn.

The Council did not arrange alternative provision for F

30. The law says a council must arrange alternative provision for a child who cannot attend school for one of several reasons, which include health conditions. This is a duty, which means it is something the council is legally required to do.
31. But this does not mean a council must always accept that a child who is not attending school is unable to do so because of a qualifying reason. Councils have discretion to decide a child should continue to attend school, and where they do, the duty to arrange alternative provision will not apply. Instead, a council should consider whether to use its powers to enforce their attendance.
32. In this case, Mrs C informed the Council in April 2024 she had withdrawn F from school because of her fears for his safety, and asked it to arrange alternative provision instead. However, in its response, the Council explained it was satisfied it was safe and appropriate for F to continue attending the school; a view shared, at the time, by the school.
33. I acknowledge Mrs C strongly disagrees with this, but as I noted earlier in this decision statement, we have no jurisdiction to consider the suitability of F’s placement at the school, because this question forms part of Mrs C’s appeal to the Tribunal.
34. And in fact, even if it did not, it is not the Ombudsman’s role to make operational decisions like this on the Council’s behalf. Our role is instead to identify administrative fault in the Council’s actions, and I cannot see any evidence of that here. Rather, Mrs C’s complaint arises from a difference of opinion. I do not, in any way, seek to dismiss or minimise her view, but this alone does not give me grounds to uphold her complaint.
35. In July the school advised it no longer felt it could meet F’s needs, and at this point the Council agreed to arrange alternative provision for him. However, Mrs C says the Council did not actually proceed to do so. Then, in October, the Council rescinded this decision, because it issued F’s EHC plan, naming the same mainstream school as his placement.
36. I should note that, for the same reason we cannot investigate Mrs C’s complaint about F’s placement, we also cannot consider the question of alternative provision from this point. This is because any decision about alternative provision is inextricably linked to the suitability of F’s named school, which is now a matter for the Tribunal to determine. Our jurisdiction is therefore limited to the period between the Council agreeing to arrange alternative provision in July, and the issue of F’s EHC plan in October.
37. As Mrs C has said, I have seen no evidence to suggest the Council actually made any arrangements for alternative provision for F, even after agreeing to do so.
38. The Council says it received advice from the school, that it could not meet F’s needs, on 17 July. I recognise it was not practical, therefore, for the Council to identify and implement suitable alternative provision for F before the end of the school year, which was a matter of days away.
39. However, the Council could have made arrangements during the school holiday, to ensure some provision was in place for the beginning of the new year in September.
40. Again, our jurisdiction here extends only up to the date the Council issued F’s EHC plan, which was 23 October. But this gives a period of approximately six or seven weeks – approximately half a term – when we can say the Council should have made arrangements for F to receive some provision, but did not. I find fault for this reason, with F’s consequent loss of education being an injustice to Mrs C.
41. I will note that one of the stage 2 investigator’s recommendations was for the Council to provide catch-up provision, to reflect a loss of two terms of education by F. The Council accepted this recommendation and has confirmed, in response to my enquiries, it is implementing this.
42. It is unclear to me whether this means the Council has accepted it was at fault for not arranging education for F over a period of two terms. Even if it has though, this does not affect our jurisdiction, which is limited for the reasons I have set out.
43. In accordance with our published guidance on remedies therefore, I consider the Council should offer Mrs C £450 to reflect F’s loss of education for a period of approximately half a term. I make a recommendation to this effect.
44. I find fault causing injustice in this element of Mrs C’s complaint.

The Council’s delay in responding to the stage 2 complaint

45. Mrs C submitted her stage 2 complaint on 10 June 2024. She says the Council told her its deadline for responding was 60 days (I will work on the basis this meant 60 working days).
46. It is unclear what date the stage 2 report was completed, as the report itself is undated. But the Council’s adjudication letter, which was the formal end of stage 2, is dated 3 October 2024. By my calculation this was 83 working days from the date of submission, meaning the Council missed its target by 23 working days, approximately one calendar month.
47. I consider this again to be fault. However, I am conscious the Council approached the stage 2 investigation in an unusually complex way here, by appointing an independent investigator, which we would not normally expect to see in this type of complaint. This being so, I do not consider a delay of 23 working days to be so excessive as to represent a significant injustice to Mrs C.
48. I find fault which did not cause injustice in this element of Mrs C’s complaint.

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Action

49. Within one month of the date of my final decision, the Council has agreed to offer to pay Mrs C £450, to reflect the loss of approximately half a term of education to F.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman