Summary: Ms X complained the Council failed to fulfil its duty to provide alternative provision when her son, Z, was unable to attend school. We have found the Council at fault for repeatedly failing to consider whether it owed a section 19 duty. This caused Z an injustice in the form of lost education provision between January 2024 and May 2024. We have not found the Council’s faults caused an injustice before January 2024. We have not investigated a loss of provision after May 2024, for the reasons set out in this statement. We have also found the Council at fault for its communication and complaints handling. The Council has agreed to apologise, increase the financial remedy previously offered, and provide guidance to relevant officers.

The complaint

1. Ms X complained the Council failed to fulfil its duty to provide alternative education provision when Z was unable to attend School J due to health reasons. Ms X said the Council failed in its duty between November 2023 and August 2024, leading to Z missing education provision during a key stage of his academic career.
2. Ms X said this affected Z’s overall wellbeing and educational attainment. Ms X also said this caused avoidable frustration, distress, and avoidable expense.

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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)
4. 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)
5. 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.
6. 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)

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What I have and have not investigated

7. Ms X’s complaint concerns the Council failing to arrange alternative provision between November 2023 and August 2024. In May 2024, the Council issued an EHC Plan, which continued to name School J as Z’s educational setting. The Council also provided Ms X with the right to appeal the content of the EHC Plan to the SEND Tribunal.
8. Paragraphs 18-22 set out the Ombudsman’s jurisdiction to investigate complaints about alternative provision, where a right of appeal exists. After 22 May 2024, Z’s loss of education provision was directly linked to the Council’s decision about the school named in Z’s EHC Plan. Ms X had the right to appeal this decision to the SEND Tribunal. I have not therefore considered any loss of provision after this point.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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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Relevant legislation, guidance and policy

Alternative provision/section 19 duty

12. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We refer to this as section 19 or alternative education provision.
13. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
14. 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)
15. 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.

16. 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 their duties are properly fulfilled.

Education, Health and Care Plans

17. 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 what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Appeal rights and the Ombudsman’s Jurisdiction

18. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.
19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
20. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Council’s complaints procedure

23. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in three working days. It will respond to stage one complaints in 10 working days and stage two complaints in 20 working days.

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What I found

Key events

24. Below is a summary of the key events leading to this investigation. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
25. Ms X’s son, referred to as Z in this statement, was in Year 6 at School J at the time of Ms X’s complaint.
26. In November 2023, Ms X said Z stopped attending School J for health reasons. Ms X said she told the Council when this happened. The Council told the Ombudsman it had no record of this.
27. In December 2023, the Council and School J exchanged correspondence about Z’s non-attendance. The Council gave School J advice, stating School J needed to consider the reasons for Z’s absence. The Council set out the actions School J could take depending on whether Z’s absence was due to medical reasons, special educational needs, or general attendance issues.
28. On 14 December 2023, Ms X met with the Council and School J. Ms X said the meeting was to discuss strategies to help Z return to School J in January 2024. After the meeting, the Council wrote to School J. It signposted to guidance on how to approach absences caused by medical needs, including the need to consider medical evidence.
29. I understand the Council also carried out an EHC needs assessment for Z around this time, agreeing to issue an EHC Plan.
30. In January 2024, Ms X said Z returned to School J on the first day of term. However, Ms X said the staff at School J were unhelpful, with there being interactions that distressed Z and set back his re-engagement. Ms X told the Council Z could not return to School J. She asked the Council to arrange alternative provision.
31. Ms X asked the Council for alternative provision three times in January 2024, but did not receive a reply. The Council corresponded and met with School J, offering advice about Z’s absence. School J authorised Z’s absences on medical grounds. I have seen internal Council correspondence where officers sought advice about how to approach Z’s case.
32. In February 2024, Ms X asked the Council for an update on Z’s EHC assessment. She also highlighted the Council’s lack of reply to her request for alternative provision. Ms X said this lack of response meant they may need to consider elective home education (EHE) for Z.
33. In March 2024, Ms X again asked the Council for alternative provision. Internal records show officers sought advice on how its section 19 duty intersected with the ongoing EHC needs assessment and the possibility of EHE.
34. The Council began working with Ms X and Z to offer support to transition to secondary education. This support included home visits and meetings with Z’s primary and potential secondary settings.
35. The Council issued Z’s final EHC Plan on 22 May 2024. This plan named School J as Z’s educational setting. The Council provided Ms X with the right to appeal the content of the plan to the SEND Tribunal.
36. In June 2024, Ms X asked the Council about Z’s transition arrangements for secondary education settings. Ms X also highlighted the Council’s lack of response to her request for alternative provision. Ms X said alternative provision would have helped prepare Z for the move to secondary school. Internal Council records show officers passed on these concerns.
37. On 10 July 2024, Ms X complained to the Council about its failure to provide alternative provision for Z, despite multiple requests. Ms X said she had been paying for a maths tutor and had subscribed to learning websites to provide Z with some learning. Ms X also said she had reduced her working hours to support Z.
38. On 23 July 2024, the Council wrote to Ms X to clarify her complaint and the outcomes sought. Ms X confirmed these a few days later. The Council said it logged Ms X’s complaint on 29 July 2024.
39. On 28 August 2024, the Council responded to Ms X’s complaint:
1. The Council partially upheld Ms X’s complaint about Z being unable to attend School J. The Council said School J felt it could meet Z’s need, but Z had not attended. However, the Council accepted Ms X felt School J could not meet Z’s needs. The Council said this should have been addressed between School J, the Council and Ms X at the time.
2. The Council said the EHC Plan it issued in May 2024 confirmed a new setting for Z from September 2024. The Council said because of this, there was no need for it to arrange alternative provision.
3. The Council upheld Ms X’s complaint about a lack of communication and support. The Council said it had made insufficient progress with Ms X’s request for alternative provision, despite there being medical evidence available to consider. The Council said the lack of clarity in its decision-making led to delays. It said it was improving its section 19 policy.
4. The Council upheld Ms X’s complaint about costs incurred for missed education provision. It offered Ms X and Z £1800 in recognition of Z’s missed education provision and apologised.
40. On 16 September 2024, Ms X escalated her complaint. She said the Council had breached its section 19 duty between November 2023 and August 2024. Ms X said she then had to provide EHE for Z. She said the lack of alternative provision left Z unable to cope with the transition to secondary education, affecting his wellbeing further. Ms X said the effort spent on securing an EHC Plan for Z had been effectively wasted.
41. In October 2024, the Council issued an amended EHC Plan for Z, confirming the EHE arrangements. On 3 October 2024, the Council responded to Ms X’s stage two complaint. The Council declined to consider the complaint further, stating Ms X had provided no new evidence and the outcome would not change.

Analysis

Did the Council act with fault?

Alternative provision

42. The Council said it had no record Ms X told it about Z’s non-attendance in November 2023. However, the Council and School J discussed Z’s absence in early December 2023, ahead of the meeting between all parties. On the balance of probabilities, I believe the Council was aware of Z’s absence from at least the beginning of December 2023, given its conversations with School J.
43. The Council offered School J advice about what steps it could take, depending on the reasons for Z’s absence. However, it is the Council’s responsibility to consider the reasons for a child’s absence and to decide whether it owes that child a duty under section 19. Instead, the Council placed the onus on School J to decide. Even if the Council delegates this decision to schools, the Council remains responsible. I have seen no evidence the Council considered this, or its wider responsibilities. I have found the Council at fault for not considering whether it owed Z a duty under section 19.
44. Ms X asked the Council to provide Z alternative provision multiple times in January 2024 and March 2024. I would expect the Council to properly consider these requests and any relevant evidence, decide whether it owed a section 19 duty, and clearly communicate its decision to Ms X. I have seen evidence the Council briefly discussed this with School J in February 2024, offering some general advice. However, I have again seen no evidence the Council considered whether it owed Z a section 19 duty, or communicated with Ms X about this. I have found the Council at fault for repeatedly failing to consider whether it owed Z a section 19 duty. I have also found the Council at fault for its poor communication with Ms X.
45. If left unaddressed, these faults could cause injustice to others in the future.

Complaint handling

46. The Council delayed acknowledging and responding to Ms X’s complaint at stage one of its complaints procedure. It took nine working days to acknowledge Ms X’s complaint and 35 working days to respond. I have found the Council at fault for these delays.
47. The Council responded to Ms X’s stage two complaint in 13 working days. This is within the timescales set out in the Council’s complaints procedure. I have not found the Council at fault for its handling of Ms X’s stage two complaint.

Did the Council’s faults cause an injustice?

48. I have not found the Council failing to consider its section 19 duty in December 2023 caused an injustice to Z. The Council, Ms X and School J met on 14 December 2023 to discuss ways to support Z returning in January 2024. Had the Council considered its section 19 duty then, I think it likely, on the balance of probabilities, the Council would have decided a section 19 duty did not apply. This is because it was possible Z could yet reintegrate quickly back into School J, with appropriate support. Some time would be needed to attempt this reintegration and evaluate its success. I do not believe the Council would have acted differently in December 2023, had it properly turned its mind to its section 19 duty.
49. The Council failing to consider its section 19 duty multiple times from January 2024 onwards caused Z an injustice. The Council made no decision about whether it owed a section 19 duty, despite the threshold requiring such a decision having clearly been met. I asked the Council if it accepted it had owed Z a section 19 duty. The Council said it was School J’s decision to accept the medical evidence supplied. It said it had discussed its duty internally, but School J had showed commitment to making arrangements for Z.
50. The Council again sought to defer responsibility for this decision to School J. However, even if the Council delegates this decision, it remains responsible. On the balance of probabilities, I believe it likely the Council would have accepted a section 19 duty to Z after January 2024, had it properly turned its mind to the question. This is because reintegration measures had been unsuccessful and because School J had accepted Z could not attend for medical reasons, marking Z’s absences as such based on available evidence that supported this. In its final complaint response, the Council also accepted it had not appropriately responded to Ms X’s requests for alternative provision. It further accepted a lack of clarity in its decision-making.
51. I therefore consider the Council’s faults meant it did not arrange suitable alternative provision for Z from January 2024, when it should have done. Z therefore missed education provision from the start of the academic term in January 2024. This loss of education provision, during a key transition stage of Z’s academic career, is an injustice.
52. To remedy this injustice, the Council offered £1800 for Z’s missed educational provision. This equates to £900 across two academic terms, the spring and summer terms in 2024. This figure is at the low end of the range set out in the Ombudsman’s Guidance on Remedies.
53. For the reasons set out in paragraphs 7 and 8, I cannot consider any loss of educational provision after the point the Council issued Z’s final EHC Plan, on 22 May 2024. I have therefore considered the remedy the Council offered for the period between January 2024 and 22 May 2024.
54. Having regard for the Ombudsman’s guidance, I consider the Council’s proposed remedy is insufficient. There are notable aggravating factors in Z’s case: Z received no education provision for a term and a half, other than provision Ms X directly arranged. This loss of provision occurred at a key point in Z’s academic career, the transition between primary and secondary education. I have recommended the Council increase its remedy to adequately reflect the injustice caused.
55. The Council’s delay in acknowledging and responding to Ms X’s stage one complaint caused Ms X avoidable time and trouble. This is an injustice that has not been addressed.

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Action

56. I considered the Ombudsman’s Guidance on Remedies when making the following recommendations.
57. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Increase the financial remedy offered and pay a total of £3000 in recognition of Z’s missed educational provision. This would include the £1800 the Council already offered, if this has not yet been paid. This is based on a figure of £2000 per term, for one-and-a-half terms, the spring and summer terms in 2024. In recommending this figure, I considered Z is a young child with special educational needs, who missed significant education provision during a key transition year of his academic career. Z received some provision, arranged by Ms X, which mitigated this loss slightly.
3. Pay Ms X £250 for the avoidable distress and uncertainty caused.
4. Share a copy of this decision and the Ombudsman’s focus report with relevant officers. This is to emphasise the Council’s responsibility to decide whether it owes a section 19 duty and the Ombudsman’s expectations of good administrative practice in how it adheres to this duty.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I have completed my investigation with a finding of fault, causing injustice. I have made 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