Summary: Mrs X complained the Council failed to provide her daughter with alternative provision after she stopped attending school for medical reasons. We find the Council was at fault for its delay in considering its duties under section 19 of the Education Act 1996 and its failure to document its decision making. These faults caused Mrs X upset and uncertainty. The Council has agreed to our recommendations to apologise to Mrs X and make a payment to her to reflect her injustice.

The complaint

1. Mrs X complained the Council failed to provide her daughter, Y, with alternative provision after she stopped attending school for medical reasons.
2. Mrs X also complained about the Council’s failure to complete an occupational therapy (OT) assessment before it issued Y’s final Education, Health and Care (EHC) Plan and its communication with her about the OT assessment.
3. Mrs X says the Council’s faults have caused her and Y anxiety, distress and trauma.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I have investigated the complaint listed in paragraph one from January to November 2024 (when the Council issued Y’s final EHC Plan). Mrs X appealed to the SEND Tribunal about the content of Y’s EHC Plan (issued in November 2024) and the placement in the Plan. The courts have established that if someone has appealed to the SEND 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). This means that if a child is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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. Therefore, we do not have any jurisdiction to investigate matters after the Council issued Y’s EHC Plan.
10. I have not investigated the complaint listed in paragraph two. The injustice caused by the non-existent assessment is that the EHC Plan does not meet Y’s needs, which is the subject of Mrs X’s appeal to the SEND Tribunal. Secondly, the Tribunal has wide powers itself to determine what evidence it requires and it can make orders for costs. Therefore, the complaint is outside our jurisdiction. We do have jurisdiction to investigate Mrs X’s complaint about the Council’s communication with her about the assessment. However, I have decided not to investigate this matter because I do not consider the injustice from this alleged fault is significant enough to warrant our involvement. The main and more significant injustice is that the EHC Plan does not meet Y’s needs, which is the subject of Mrs X’s appeal and therefore outside our jurisdiction.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Alternative provision

13. 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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have.
14. 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”.
15. 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])

Focus report

16. 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
17. 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.

Education, Health and Care needs assessments

18. 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.
19. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. If the council decides not to carry out an assessment it must notify the parent, give reasons, and provide a right of appeal to the SEND Tribunal.

What happened

20. This chronology includes an overview of key events in this case and does not detail everything that happened.
21. Y has special educational needs. Mrs X applied to the Council to complete an EHC needs assessment for Y. The Council refused to complete an assessment. Mrs X appealed the Council’s refusal to the SEND Tribunal.
22. Mrs X sent a letter to the Council in February 2024. She asked it to provide Y with alternative provision. She said Y had not attended school (School A) since January 2024 because of her high levels of anxiety and emotional school based avoidance. She provided some medical information with her letter, including Y’s GP records. This stated Y was experiencing ongoing school anxiety, and she was often having tearful outbursts at home. The Council emailed Mrs X and said it could not consider her complaint because she had lodged an appeal to the SEND Tribunal.
23. The Council’s inclusion service reviewed Y’s attendance at School A in March. The inclusion service deals with children who are struggling to attend school. The officer noted Y’s attendance was low and that an inclusion officer should be invited to the next team around the family meeting to offer advice and support. A team around the family meeting is a collaborative session between family and professionals.
24. The SEND Tribunal heard Mrs X’s appeal and decided the Council should complete an EHC needs assessment for Y.
25. School A made a referral to the Council’s inclusion service in June. The Council arranged a meeting a few weeks later to discuss Y’s attendance. School A said it could offer its provision (Provision A) for children who have emotionally based school non-attendance. This is an onsite facility, which has a separate entrance to the main school site and uses a more unique timetable with a small number of children in the classroom. Mrs X had a tour around Provision A. She said she would discuss it with Y and bring her for a visit.
26. Mrs X emailed the Council in July and said her appeal to the SEND Tribunal was now finished. She said Y was still not attending School A because of her anxiety. She asked when it was going to provide Y with an education.
27. The Council’s inclusion service wrote to Mrs X at the end of July and said it was concerned about Y’s attendance at School A. It said she had a duty to ensure regular school attendance, and it hoped Y could access education at Provision A from September. It said School A would deal with any attendance issues.
28. Mrs X chased the Council for a response to her email from July about Y’s education in early August. The Council responded and agreed to investigate Mrs X’s complaint. It issued its stage one response a couple of weeks later. It said it was not responsible for providing an education for Y as she did not have an EHC Plan. It said for a school to authorise an extended absence due to a medical condition, there was an expectation that a parent should provide evidence. Its inclusion service could not confirm this had been made available. It also said School A made a referral to its inclusion service. A meeting took place, and during the meeting School A had agreed to provide support at Provision A.
29. Mrs X referred her complaint to stage two of the Council’s complaints procedure in September. She said Y agreed to try and look at Provision A in July. However, because of her anxiety, she could only manage to stand at the boundary of the school. Therefore, she was still not accessing any education. She also said she had provided medical evidence.
30. The Council agreed to issue Y with an EHC Plan in October.
31. Mrs X sent an email to School A in mid-October and copied in the Council. She said Y had only been able to visit Provision A for 10 minutes before she became overwhelmed and upset.
32. The Council issued its final response to Mrs X’s complaint. It said School A had continued to support Y to attend Provision A. Its inclusion service closed the case in August 2024, and it had provided advice to School A on how it could continue to support Y to attend Provision A. It also said she had not provided a medical report to School A.
33. The Council issued Y’s EHC Plan in late November. It named School A as the appropriate placement to deliver the provision in the Plan. Mrs X appealed to the SEND Tribunal about the content and placement in the Plan.

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Analysis

34. The Council was aware Y was struggling to attend School A in February 2024. It failed to investigate the matter and consider Y circumstances. This is fault. It wrongly said it could not investigate the complaint because Mrs X had appealed to the SEND Tribunal. Mrs X’s appeal should not have impacted its section 19 consideration.
35. The Council met with School A and Mrs X in June 2024 and all parties agreed that Y could try and access support at Provision A. This was not alternative provision, but it was a way of reintegrating Y back into education. Mrs X told the Council in her email from September Y could not access Provision A. The Council did not review Y’s case or do anything further. It wrongly closed the case to its inclusion service and left the matter to School A to deal with. It should have checked in with Mrs X and had an oversight of whether Provision A was working for Y. Its failure to do so is fault.
36. The Council said in its stage one complaint response it was not responsible for providing Y with an education because she did not have an EHC Plan. This is wrong and it is not in line with section 19 of the Education Act 1996.
37. The Council said Mrs X did not provide any medical evidence to support Y accessing alternative provision and it was satisfied with the steps School A had taken. Mrs X provided the Council with Y’s GP records and other medical information when she sent her email in February 2024. I have not seen any evidence the Council analysed this information, documented its decision making and clearly communicated to Mrs X whether what she had provided was sufficient to provide Y with alternative provision. The Council also did not consult with all the professionals involved in Y’s education and welfare. This is not in line with the recommendations set out in our focus report and is fault.
38. We cannot say, even on the balance of probabilities, if the Council had acted without fault whether it would have decided to arrange alternative provision for Y. It still may have decided Y had an education that was available to her at School A (and Provision A). However, its faults have caused Mrs X uncertainty, upset and distress. We make several recommendations to address this injustice.
39. We have found with the Council in other similar cases and made appropriate service improvements. Therefore, I have not made any further service improvement recommendations in this case.

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Agreed action

40. By 4 July 2025 the Council has agreed to:

• Apologise to Mrs X for injustice caused by the fault in this statement.
• Pay Mrs X £300 to reflect her uncertainty, upset and distress.

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

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Final decision

42. There was fault by the Council, which caused Mrs X an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman