Summary: Ms X complained the Council failed to provide suitable education for her child following their exclusion from school in November 2022. We found fault with the Council delaying putting in place alternative provision of education from 12 September 2023 until 25 September 2023. The Council agreed to apologise to Ms X and pay her £200 in recognition of for her child’s missed education.

The complaint

1. Ms X complained the Council failed to provide suitable education for her child following their exclusion from school in November 2022.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) 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. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. I have investigated Ms X’s complaint about her child’s access to education since 30 August 2023. I have not investigated any matters before this date.
9. The Ombudsman cannot investigate matters when a person takes more than 12 months to approach us with a complaint unless there is good reason to do so. Ms X brought her complaint to the Ombudsman on 2 January 2025 meaning matters before 2 January 2024 would be out of jurisdiction. I have exercised my discretion to investigate matters back to 30 August 2023. This is because the Council took about 14 weeks outside its complaint timescales in responding to Ms X’s complaint meaning Ms X could not have brought her complaint to the Ombudsman sooner. It is also of note this is the date the Council decided it should provide alternative provision of education for Ms X’s child and is near the start of the academic year 2023/2024. This forms the basis of a logical starting point for our investigation.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

Alternative provision of education

12. 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.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. 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))
15. 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)
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;
• consider (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.

18. 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.
19. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
20. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Elective home education

21. 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.
22. The SEN Code of Practice 2015 outlines that a council should work with a parent to ensure a child’s SEN needs are met when they are being electively home educated. The Code of Practice outlines that the Dedicated School Grant is intended to fund provision for all relevant children in the authority’s area, including home educated children. A council should fund children’s SEN needs where it is appropriate to do so.
23. The Department for Education confirms a local authority has no duty to assist a parent with costs they incur while electively home educating their children. However, a local authority must given “reasonable consideration” to any request for assistance from a parent who is electively home educating their child.
24. A parent can choose to end home education at any time by applying for school places or contacting the Council for support.
25. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

Council complaint handling process

26. The Council operates a two-stage complaints procedure.
27. At Stage 1, the Council says it will acknowledge a complaint within 5 working days and try to provide a response within 10 working days.
28. If a person is dissatisfied with a response at Stage 1, the Council says a person can proceed to Stage 2. The Council says it will provide a response at Stage 2 within 20 working days of receipt of the request.

What happened

Background

29. In November 2022, Ms X’s child, who I shall refer to as Y, was excluded from School 1. The Council arranged alternative provision of education for Y.
30. In February 2023, School 2 accepted a place for Y as Ms X’s preferred choice of school.
31. From February 2023 to the end of the academic year, Y struggled with attendance at school. Ms X liaised with both School 2 and the Council about Y’s inability to access School 2.
32. On 7 August 2023, Mrs X requested home tuition for Y from September 2023 and registered a formal complaint with the Council on 28 August 2023.

Matters relating to this complaint

33. On 30 August 2023, the Council agreed to provide tuition for Y in the interim while it made a referral to medical needs tuition to help reintegrate Y into School 2.
34. The Council liaised with Ms X about a suitable tutor for Y and agreed to provide 10 hours of tutoring each week for Y. The Council said this tutoring would remain in place until the medical needs tuition service approved a place for Y. The Council detailed that its longer-term plan was for an in-year transfer of schools for Y.
35. The Council issued a complaint response to Ms X on 20 September 2023. Within this complaint response the Council confirmed Y remained enrolled at School 2 but it was making a referral to medical needs tuition and had found a tutor that would provide interim provision for Y.
36. On 25 September 2023, Y started to receive 10 hours of home tuition each week.
37. The medical needs tuition service accepted Y and arranged for Y to begin provision with it on 17 October 2023. The medical needs tuition service produced a timetable for Y which included a minimum of 13 hours and 40 minutes of education each week. This education could rise to 22 hours and 30 minutes depending on Y’s wellness and success at placements.
38. Y did not attend the medical needs tuition service until the end of November 2023. Y went off ill for the rest of the term from 11 December 2023. Y returned to the provision in January 2024 but had sporadic attendance until the February 2024 half-term break.
39. On 19 January 2024, the Council told Ms X that all three of her school transfers had declined a place for Y. The Council explained how Ms X could appeal these decision, provided an information leaflet about appeals and advised the deadline to do so was 8 March 2024.
40. On 9 February 2024, the Council checked with Ms X if she had appealed the school’s decisions. Ms X advised she had not.
41. Following the February 2024 half-term break, Y only attended two further half day sessions at the medical needs tuition service.
42. The Council held a meeting for Y’s access to education on 7 March 2024. The Council advised its plan was for Y to return to School 2 through a slow reintegration plan with a bespoke timetable for Y. After the meeting, Mrs X told the Council Y did not want to attend School 2 and if the Council withdrew the medical needs tuition she would be forced to home educate Y.
43. On 18 March 2024, Ms X wrote to School 2 and the medical needs tuition service to advise them to de-register Y from school roll as she had decided to home educate Y.
44. On 15 April 2024, Ms X contacted the Council about a place for Y on a college course in September 2024. The Council contacted the college who added Y to the waiting list for this course.
45. The Council visited Ms X to check the home education in May 2024. Ms X reiterated her interest in Y attending the college course in September 2024.
46. In August 2024, Ms X asked the Council if Y was given a place on the college course in September 2024. The Council told Ms X that Y was still on the waiting list.
47. On 28 August 2024, Ms X requested consideration of her complaint at Stage 2. Ms X complained:
• That Y had not had access to suitable education for 18 months resulting in her decision to electively home educate Y in March 2024.
• Y had not been given a place at a college course in September 2024 and wanted to know why Y had not been given a place.
• She did not want to electively home educate Y in March 2024 and only decided on this as an act of desperation.
48. The Council acknowledged Ms X’s complaint on 30 August 2024.
49. On 6 September 2024, the college offered Y a place on the course because a place became available.
50. The Council issued its Stage 2 complaint response on 23 December 2024. The Council said:
• It provided alternative provision of education for Y from September 2023 to March 2024.
• It told Ms X how to appeal decisions by schools to decline Y but Ms X did not lodge any appeals.
• The meeting it held on 7 March 2024 discussed how to reintegrate Y into school because of Y’s low attendance at the alternative provision of education provider.
• Ms X decided to electively home educate Y despite alternative provision of education still being on offer.
• Following Ms X’s contact in April 2024, it added Y’s name to a waiting list for academic support sessions at college which became available for Y on 6 September 2024.
• The responsibility for Y’s education remained with Ms X as she was electively home educating Y and this course was supplementary support.
• It considered it should pay Ms X £500 for its delays in arranging alternative provision of education before September 2023.
• It apologised to Ms X for delays in handling her complaint and offered her £50 for these delays.
51. On 22 May 2025, the Council paid Ms X the £550 offered in the Stage 2 complaint response.

Analysis

52. As detailed in paragraphs 8 and 9, I have not investigated any matters before 30 August 2023. This means I have not investigated Y’s access to education before this date or the suitability of the Council’s offer of £500 for Y’s loss of education during this time.

Y’s education from 30 August 2023 to 17 March 2024

53. At the start point of this investigation, Y was not attending school at School 2 and Ms X had made a formal request for home tuition for Y.
54. When a child is not attending school and this is brought to the attention of a council, it should consider its Section 19 duty to provide suitable alternative provision of education for a child. When a council considers its Section 19 duty it should consider a child’s individual circumstances, decide if it should provide education for a child out of the school setting, put in place plans to reintegrate a child and keep any part-time provision under review.
55. The Council decided on 30 August 2023 that it should provide alternative provision of education for Y. In doing so, the Council decided that Y should remain enrolled at School 2 and that the goal of any alternative provision of education was to reintegrate Y into education. The Council decided it would initially provide home tuition for 10 hours each week with the view to this leading into provision at its medical needs tuition service. The Council’s plan was for the medical needs tuition service to then help support Y to reintegrate into mainstream school with the potential of an in-year school transfer.
56. The Council has considered Y’s individual circumstances when creating a plan for Y’s access to education in September 2023. The Council has created a suitable plan to provide alternative provision of education for Y with the ultimate goal to reintegrate Y into mainstream education.
57. The Council also contacted three different schools for Y for an in-year transfer but all three schools declined a place for Y. I cannot find the Council at fault for the school’s declining a place for Y; this was each school’s decision and outside the jurisdiction of the Ombudsman. The Council told Ms X how to appeal these decisions but Ms X decided against this. Again, this is not something I can find the Council at fault for.
58. Y initially engaged with the provision on offer through the home tuition. Y did not attend the medical needs tuition service until the end of November 2023 before going off ill in December 2023. Y’s engagement in the provision picked up in January 2024 but reduced significantly, following the February 2024 half-term break. Once this happened, the Council held a review meeting for Y’s access to education. At this time the Council reiterated the goal was for Y to access education in a mainstream school. When this meeting took place, Y’s school remained School 2.
59. The Council has followed the relevant legislation and guidance and I cannot find fault with the Council’s chosen level of provision for Y from 25 September 2023 to 17 March 2024. The Council kept a suitable offer of alternative provision of education on offer to Y throughout this time and kept this under review. The Council also tried to progress with the plan to reintegrate Y into mainstream school; this was the goal set out by the Council when it created the plan in September 2023.
60. While I cannot find fault with how the Council provided Y’s access to education from 25 September 2023 to 17 March 2024, the Council failed to make any alternative provision of education available to Y from 30 August 2023 to 25 September 2023. When a council is aware that a child will be absent from school for more than 15 school days, it should put in place provision from the sixth day of absence. The Council was aware that Y had been, and would continue to be, absent from school when it agreed to provide alternative provision of education on 30 August 2023. Given Y’s school term started on 5 September 2023, the sixth day of absence was 12 September 2023. The Council failed to provide alternative provision for just short of a further two weeks after this date; this was fault.
61. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
62. The Council’s fault caused Y to go without any educational provision for nine days. Based on Y’s individual circumstances and the loss of education, I consider the Council should apologise to Ms X and pay her £200 so she can source some catch-up provision for Y.

Y’s education since 18 March 2024

63. On 18 March 2024, Ms X decided to electively home educate Y. Ms X had every right to decide to home educate Y. In choosing to home educate Y, Ms X took on the financial responsibility for any costs involved in educating Y. While Ms X says she took this action out of desperation, the evidence shows the Council continued to make alternative provision of education available to Y when Ms X made her decision.
64. While Ms X was responsible for providing education for Y through elective home education, the Council still had a general duty to work with Ms X to provide support for Y’s education if requested. The Council also had a duty to consider the suitability of the education on offer by Ms X.
65. The Council visited Ms X in May 2024 to check the suitability of education on offer by Ms X. The Council also facilitated access to a course for Y which started on 6 September 2024 following Ms X’s request for this. The Council has acted in line with its responsibility to support and monitor Y’s home education as needed. The responsibility for Y’s education remains with Ms X since 18 March 2024 because of her decision to electively home educate Y. Should Ms X no longer wish the home educate Y, she would need to confirm this with the Council or apply for a school placement for Y. At this point the Council’s responsibility to provide education for Y would be reengaged.

Free school meals

66. Free school meals are provided for certain children in a school setting who meet the relevant criteria. Y received free school meals when attending school.
67. There is no specific legislation which provides for children to still receive free school meals when they are not attending school. However, local authorities should consider making equivalent food provision for children who are not attending school but are instead receiving Education Otherwise Than At School (EOTAS) under section 61 of the Children and Families Act 2014.
68. While such an expectation exists of the Council for children in receipt of EOTAS, this is not the same for a child who is receiving Section 19 alternative provision of education. This is because a child is still enrolled at a specific school. As such, any responsibility over provision of free school meals would be a matter for Y’s school to address and not the Council. This is outside the jurisdiction of the Ombudsman to investigate.

Complaint handling

69. The Council took slightly over one week outside its complaint timescales to provide a response to Ms X’s complaint at Stage 1 of its process in 2023. The Council then took just under 13 weeks to respond at Stage 2. Overall, the Council delayed by about 14 weeks outside its complaint timescales in responding to Ms X’s complaints. This was fault.
70. The Council has already apologised to Ms X for the complaint handling delays and provided a £50 payment as a symbolic gesture for the avoidable inconvenience and frustration caused. I consider the Council has already taken suitable action to address this fault.

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Action

71. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X for the nearly two-week delay in starting alternative provision of education for Ms X's child and provide a payment of £200 to Ms X for the missed education during this time.
72. The Council should provide us with evidence it has complied with the above actions.

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Decision

73. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman