Summary: Ms X complained the Council failed to put in place suitable alternative provision after her child stopped attending school. The Council failed to demonstrate that it kept its duty to arrange alternative education provision under review for a period of seven months. This caused Ms X avoidable frustration and uncertainty and to recognise this, the Council has agreed to apologise and pay Ms X £300. For the rest of the period Ms X complained of, the Council kept this duty under review as we would expect and was not at fault.

The complaint

1. Ms X’s representative complained the Council:
• failed to arrange suitable, full-time alternative provision for Ms X’s child, Z, from November 2023; and
• put pressure on Ms X to deregister Z from school and electively home educate Z instead.
2. Ms X’s representative said this caused Ms X avoidable distress and financial loss and caused Z to miss out on education.
3. Ms X said she wants the Council to reimburse her for the money she spent on providing Z with alternative education and put suitable alternative provision in place without delay.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
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)
9. 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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What I have and have not investigated

10. I have exercised discretion to look at events beyond the date of the Council’s final complaint response in late October 2024. I have investigated events starting from November 2023 and ending in late May 2025.
11. I have decided to use discretion because I am satisfied the Council has had an opportunity to respond and provide evidence covering this period through its response to our enquiries. It also would not be reasonable to ask Ms X to make a new, separate complaint about this later period, as it is too closely linked to the issues that began in 2023.

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How I considered this complaint

12. I considered evidence provided by Ms X’s representative and the Council as well as relevant law, policy and guidance.
13. Ms X’s representative and the Council were given an opportunity to comment on a draft decision. All comments received were considered before making a final decision.

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What I found

Law and guidance

EHC Plans

14. 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.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans.
16. If after a parent or young person applies for an EHC Plan, the council decides not to conduct an EHC needs assessment, it must give the child’s parent or the young person information about their right to appeal to the Tribunal.

SEND Tribunal

17. 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.
18. 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). The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
19. 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). 

Section 19 duty (alternative provision)

20. 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.
21. 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)
22. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
24. 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])

Part-time timetables

25. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
26. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Focus report

27. 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
28. 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

29. 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.

Elective home education

30. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

Attendance at school

31. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents if they fail to ensure their child’s regular attendance at school.

What happened

32. In November 2023, Ms X’s child, Z, was on roll at a mainstream school. Z has additional needs but did not have an EHC Plan.
33. Z’s attendance at school reduced significantly and in mid-December 2023 a team around the family meeting was held. The Council attended, along with the school and Ms X. Professionals noted Z’s current needs and challenges. They noted the school had put a part-time timetable in place but Z had not felt able to attend even on a reduced schedule. They agreed the timetable should be reduced further and agreed other changes that should be tried to reintroduce Z to school full-time.
34. Another team around the family meeting was held in February 2024. Again the Council, the school and Ms X attended. Z’s attendance had reduced further and Ms X said the school was not suitable to meet Z’s needs. Ms X said she had now applied for an EHC Plan for Z and Z was on the waiting list to be assessed for several neurodevelopmental conditions.
35. Professionals noted Z had been given a small amount of work by the school to complete from home and was still refusing to attend school. Homeschooling was discussed but there is little detail in the record apart from making clear Ms X did not want to homeschool Z. It noted Ms X was funding therapy privately for Z. It was decided following the meeting that the school would continue with the current support plan.
36. The Council decided on 1 March 2024 that it would not assess Z for an EHC Plan. The Council said its SEND manager, health representative, social worker and specialist teacher considered Ms X’s request and accompanying evidence, but did not agree Z needed an EHC Plan, as their needs could be met by their current school. The Council sent Ms X several resources around emotionally-based school avoidance (EBSA) that Ms X could access, as well as resources that may assist the school. Ms X appealed the Council’s decision not to assess Z for an EHC Plan.
37. The Council did not attend any other meetings to review Z’s part-time timetable for the next seven months. The Council said its view during this period was that Z should be attending school and the school was reviewing the reintegration plan every two weeks. However there is no record between March 2024 and September 2024 that shows how the Council kept this under review or how it decided the reintegration plan was still suitable.
38. The Council was aware Z’s attendance was still very low, as it had recently considered Ms X’s request for an EHC Plan where this was made clear. Additionally in June 2024 Ms X asked the Council if Z could have more work to do at home as she was not attending school. The Council responded to Ms X on 13 June. It said it would ask the school to send work home but whether to do this was at the school’s discretion. It noted Ms X was still chasing further medical evidence relating to Z’s needs.
39. Ms X complained to the Council in August 2024. She said Z had special educational needs and mental health issues affecting their ability to attend their mainstream school but no alternative provision had been put in place. Ms X also said she felt pressured by the Council to homeschool Z.
40. The Council responded at stage one in September 2024. It said:
• The Council had decided it did not owe Z a section 19 duty, as its efforts were focussed on reintegrating Z back into their school through the part-time timetable and support plan;
• At the present time, the Council’s view was Z should be attending their school as they had a suitable school place available; and
• It did not agree it had pressured Ms X to homeschool her child but apologised if there had been any miscommunication.
41. The school commissioned some part-time provision for Z in September 2024 – a combination of forest school and online learning. Ms X also arranged part-time alternative provision for Z and paid for this herself.
42. The school made a referral to the Council to seek medical tuition for Z due to their ongoing absence from school. The Council considered the request at its medical panel in early October 2024 and declined to provide this. The panel said the medical evidence received still did not demonstrate that Z was unfit to attend school. The panel noted Z had anxiety and special educational needs and asked for more evidence and information to be provided around this.
43. The Council decided around this time that it would assess Z for an EHC Plan. The Council’s educational psychologist carried out an assessment of Z’s needs in October 2024.
44. Ms X complained at stage two of the complaints process. She said the part-time timetable had been unsuccessful, so the Council should now put in place alternative provision instead. The Council responded at the final stage of its complaints process in late October 2024. It said:
• The school had put in place suitable measures and Ms X had an outstanding application for an EHC Plan for Z. It said no further outcome could be achieved through investigation at stage two and signposted Ms X to the Ombudsman.
45. The Council reviewed Z’s part-time timetable again in early December 2024. The Council said no advice was required and the school should continue offering the current support.
46. The Council held another medical panel in January 2025 after it asked for further evidence at its last panel. It maintained there was still no medical reason Z was not attending school and said, “if the family will not engage with a suitable re-integration plan with the school, then school should move through prosecution process”.
47. Also in January 2025, the Council decided following its assessment that Z did not need an EHC Plan. It said while Z had special educational needs, these could be met through the resources ordinarily available to Z’s mainstream school. Ms X appealed this decision to the Tribunal.
48. The Council reviewed Z’s part-time timetable again in March 2025. It said its advice was for the school to explain to Ms X that further non-attendance at school would be unauthorised and legal proceedings would be considered.
49. Ms X’s legal representative sent the Council new medical evidence in early May 2025 – a detailed report from a psychiatrist which included a new diagnosis. The solicitor asked to meet with the Council to seek a resolution regarding Z’s education, before they applied for a judicial review of the Council’s decision.
50. In response, the Council considered Z’s case again at its medical panel. It decided based on the new medical evidence, it would be unlikely to prosecute for non-attendance and that it owed Z a section 19 duty and would arrange alternative provision.

My findings

Alternative provision (section 19)

51. Our role is not to ask whether a council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
52. November 2023 – February 2024
53. My investigation begins in November 2023. When Z’s attendance reduced significantly, the Council attended two meetings - December 2023 and February 2024 - where it reviewed Z’s needs, progress and the school’s reintegration plan. The Council considered its section 19 duty and decided it did not owe one as Z should be supported back to attending their school full-time. There was no fault in the Council’s actions during this time.
54. March 2024 – September 2024
55. Between March 2024 and September 2024, the Council did not attend any further meetings to review the part-time timetable and the reintegration plan. Z’s attendance dropped to almost zero in this period and the Council said the school was reviewing the situation every two weeks. 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.
56. The Council failed to demonstrate it sufficiently reviewed and kept across Z’s part-time timetable while Z was not attending school between March 2024 and September 2024 and this was fault. This fault has caused Ms X frustration and uncertainty about whether the Council might have been able to offer additional support during this time that would have been of benefit to Z.
57. October 2024 – May 2025
58. The next time the Council considered its section 19 duty and recorded this was in early October 2024, after the school made a referral to the Council for some medical tuition for Z. The records show the Council then kept its section 19 duty under review regularly from this time onwards, considering it in December 2024, January 2025, March 2025 and May 2025. The Council maintained during this period that a section 19 duty was not owed, Z’s needs could be met at their mainstream school and there was no medical reason Z could not attend. The Council also came to the same decision when it decided in January 2025 that Z did not need an EHC Plan.
59. Ms X disagreed strongly with the Council. Her view was she had provided medical evidence and information about her child’s needs and her child had not felt able to attend their school since late 2023. Ms X said this should have been sufficient to demonstrate that her child was unfit to attend school. However the Courts have found that it is a judgement for councils to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence.
60. Between October 2024 and May 2025, the Council considered the evidence as we would expect it to and kept its section 19 duty regularly under review. It came to a different conclusion than Ms X did. However as there was no fault in how the Council made its decisions during this time, we cannot question the outcome. The Council was not at fault.
61. Once the Council was sent new medical evidence in May 2025, it decided there was a medical reason Z was not attending school and it did therefore owe Z a duty to arrange alternative provision.

Elective home education

62. Elective home education is an option available to parents. Ms X complained the Council pressured her to consider this option, despite her saying she wanted Z to attend a different school that could meet their SEN needs.
63. I understand that Ms X may have felt pressured to home educate her child. However I have not seen sufficient evidence to say on balance, that the Council was at fault for pressuring her to provide elective home education.

Service improvements at Surrey County Council

64. Following several cases this year where the Ombudsman found similar fault and injustice in relation to alternative provision, the Council has agreed to make improvements to its service.
65. The Council has already used our investigations as learning cases with staff and is reporting back to the Ombudsman on its action plan for resolving these issues. These service improvements are still underway. As these service improvements would not have taken effect yet during the period Ms X complained of, I have not repeated any service improvement recommendations here. However, we will continue to monitor any trends and issues through our casework.

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Action

66. Within one month of the date of the final decision statement, the Council has agreed to:
• apologise to Ms X and pay her £300 to recognise the frustration and uncertainty caused by the Council’s failure to demonstrate how it kept its section 19 duty to her child under review between March 2024 and September 2024.
67. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
68. The Council should provide us with evidence it has complied with the above actions.

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Decision

69. I have found fault causing injustice and the Council has agreed to take action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman