Summary: Mrs Y complained that the Council failed to provide her child with a suitable education. We have not found fault with the Council.

The complaint

1. Mrs Y complains the Council has failed to provide her child, Z, with a suitable education since November 2023 while they have been unable to attend school.
2. Because of this Z has missed more than a year of education impacting their self-confidence and wellbeing. Z is worried they won’t be able to catch up on the education they have missed.
3. Mrs Y wants the Council to apologise and take action to put things right.

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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.
5. 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)
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

Z’s educational provision from December 2023

7. I have not investigated Mrs Y’s complaint the Council failed to make suitable alternative educational provision for Z after 15 December 2023. This is when the Council notified Mrs Y of: its decision not to issue Z with an EHC Plan; and her right to appeal to the Tribunal against the decision.
8. This is because:

• 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;
• 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); and
• 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 decision not to issue an EHC Plan, the special educational provision or educational placement in an EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

9. 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.
10. Mrs Y had the right to appeal against the Council’s decision not to issue an EHC Plan from 15 December 2023. She exercised this right in January 2024.
11. In my view, Z’s non-attendance at school is linked to Mrs Y’s disagreement about the Council’s decision not to issue Z with, and specify SEN provision and an educational placement for them in, an EHC Plan. On this basis we cannot investigate Mrs Y’s complaint about a lack of alternative educational provision for Z from 15 December 2023.
12. I have investigated whether the Council properly considered its duty to make alternative provision for Z from November 2023, when they stopped attending school, until December 2023 when it decided not to issue an EHC Plan.

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How I considered this complaint

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

What I found

What should have happened

Alternative education provision – the section 19 duty

15. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Our guidance

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. These were that 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.

What happened

18. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

19. In 2022 the Council declined Mrs Y’s request it carry out an Education Health and Care (EHC) needs assessment for Z.
20. Mrs Y appealed to the Tribunal against this decision. On 15 March 2023 the Tribunal ordered the Council to complete an assessment for Z.

September to November 2023: Z starts at secondary school

21. The EHC needs assessment was still underway when Z started at secondary school in September.
22. Z stopped attending school in November. Mrs Y says this was because of their very high level of anxiety about school.
23. On 24 November Mrs Y told the Council Z was unable to attend school. She asked it to make alternative educational provision for them.

December 2023: Council’s response to the request for alternative provision

24. In its response to Mrs Y’s request, the Council told her:

• it had decided not to provide Z with alternative provision because the EHC needs assessment did not conclude it was necessary;
• Z’s mainstream school’s assessment was her needs could be met there; and
• there was currently no case for it to make alternative provision for Z.

25. Z’s school told the Council it had reviewed a detailed letter from Mrs Y about Z’s circumstances. Their view was there was currently no professional evidence to support Z’s absence from school. Until supporting evidence was received it would continue to record the absence as unauthorised.
26. On 15 December the Council told Mrs Y it had decided not to issue Z with an EHC Plan. It said:

• It had noted the concerns regarding Z’s school attendance. The school could explore options available for alternative provision, if it felt this was required, without any EHC Plan being in place;
• While it recognised Z had some special educational needs (SEN), the evidence suggested these could be met from the ordinarily available SEN support. It was not necessary to make any additional or different provision for Z in an EHC Plan; and
• She had the right to appeal to the Tribunal against its decision.

January 2024: Appeal to the Tribunal

27. Mrs Y appealed to the Tribunal against the Council’s decision not to issue Z with an EHC Plan. She said Z’s school could not meet their needs. Z’s anxiety was now so bad that they could not attend school.

Events from January 2024

28. In November 2024, Mrs Y complained to us about the lack of alternative educational provision made for Z from November 2023, when they stopped attending school.
29. In January 2025, the Tribunal allowed Mrs Y’s appeal and ordered the Council to issue Z with an EHC Plan.

My decision - was there fault by the Council causing injustice?

November to December 2023

30. I do not consider there was fault by the Council in the way it considered its section 19 duty and whether it should make alternative provision for Z during this period.
31. This because it promptly considered and responded to Mrs Y’s request. And the information I have seen indicates the Council properly considered relevant evidence from the recently completed EHC assessment and the school before making its decision not to make alternative provision for Z at that point. I also note it had not been provided with any medical evidence to support the request for alternative provision.

December 2023 to January 2025

32. I have not investigated whether the Council failed to provide Z with a suitable education during this period for the reasons explained in paragraphs 8 to 12.

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Decision

33. I have not found find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman