Summary: Mrs Y complains the Council did not act when her child, who I will call C, stopped attending school in July 2023. Although the Council allocated a secondary school from September 2023, Mrs Y said it was unsuitable for C. Mrs Y asked for a bespoke package of education to be delivered outside of school. We find fault in the parts of the complaint within our jurisdiction because the Council did not consider whether C needed alternative provision in November 2023 when the school confirmed C was not attending. There is also fault in the Council’s handling of the complaint. The Council will apologise and make a symbolic payment.

The complaint

1. Mrs Y complains the Council failed to take appropriate action to ensure her child, who I will call C, continued to have access to suitable education once they stopped attending school from July 2023.
2. The Council issued an EHC plan for C in January 2024 which named the school already allocated to them. Mrs Y says the school was unsuitable for C and she asked the Council to deliver a package of ‘Education Other than at School’ (EOTAS).
3. In the meantime, Mrs Y says C missed a significant period of education due to the Council’s inaction. She wants the Council to provide an appropriate remedy in recognition of this.

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The Ombudsman’s role and powers

4. 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)
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. 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)
7. 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(1), as amended)

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What I have and have not investigated

8. I have exercised discretion to investigate matters from September 2023 when C started secondary school. Although this event is more than 12 months ago, the Council failed to respond to the stage two complaint in March 2024 which meant that Mrs Y was prevented from complaining to us sooner.
9. I have not investigated what happened after January 2024 because the Council issued a final EHC plan naming the school which C was already allocated to. Mrs Y appealed the plan because she did not agree with the school named and instead wanted a package of bespoke EOTAS which the Council did not agree to provide. I consider that Mrs Y’s complaint to the LGSCO is too closely connected to the matters which she appealed, and the end date of my investigation is therefore January 2024.

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How I considered this complaint

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

Section 19 of the Education Act

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
15. When considering whether to provide alternative provision, councils must have regard to statutory guidance, ‘Arranging education for children who cannot attend school because of health needs’. This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged to deliver suitable education outside of school.

Education Health and Care Plans and appeals

16. 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. 
17. There is a right of appeal to the Tribunal against the following.

• Decision not to carry out an EHC needs assessment or reassessment.
• Decision not to issue an 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.
• Decision to cease to maintain an EHC plan.

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)

What happened

19. Mrs Y has a secondary school aged child who I will call C. In September 2023 C transferred to a mainstream secondary school. Mrs Y says she told the school almost immediately that C was unable to attend. She says the school offered no alternatives or solutions to C’s non-attendance. At this time, C did not have an EHC plan.
20. Mrs Y contacted the Council on 3 October 2023 to explain that C was unable to attend school, and the school had made no other arrangements. Mrs Y said, in her view, C needed alternative provision to be made under Section 19 of the Education Act because of their inability to attend any school due to their complex special educational needs, anxiety and school related trauma.
21. On 25 October 2023 Mrs Y had a meeting with the school. Records from that meeting note: “reduced timetable” and “parents have requested section 19”.
22. The Council made a phone call to the school on 23 November 2023 regarding C’s ongoing absence. Notes of that call show the school told the Council it planned to submit a referral within the next week to request alternative provision for C on medical grounds.
23. C remained out of school. On 2 January 2024 Mrs Y contacted the Council to request a package of EOTAS because she felt that C was unable to attend any school.
24. Two days later the Council finalised and issued C’s EHC plan. In Section I, the plan named the mainstream school already allocated to C.
25. Mrs Y complained to the Council in February 2024. The Council responded in March. In summary, it said the following.
• Between September 2023 and January 2024, C did not have an EHC plan and so their school remained responsible for providing suitable education.
• The school met with Mrs Y in October 2023 to outline what alternative arrangements they could offer for C, but Mrs Y declined these.
• The Council accepted it failed to respond to Mrs Y’s request for EOTAS in January 2024. The Council also accepted it named the school on C’s EHC plan before first consulting with the school.
26. Dissatisfied with the Council’s response, Mrs Y made a stage two complaint on 4 March 2024. The Council failed to log the complaint and did not respond.
27. Mrs Y approached the LGSCO in early 2025. We referred Mrs Y’s complaint back to the Council because she had not received a final response signposting her to the Ombudsman. The Council responded to Mrs Y’s complaint on 3 April 2025. It did not uphold any further points of complaint and signposted Mrs Y to us.

Was there fault in the Council’s actions causing injustice to Mrs Y and C?

28. 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. 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.
29. 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.
30. In C’s case, the Council issued an EHC plan on 4 January 2024 naming the mainstream school which Mrs Y said was unsuitable for C’s complex needs. This decision carried a right of appeal which Mrs Y used. For the reasons explained in paragraphs five and nine of this statement, and as further explained above, we have not investigated what happened after January 2024 because the disagreement about the type of provision C needed was connected to the grounds of appeal. I do not consider the complaint about the provision available for C from January 2024 is separable from the appeal.
31. This investigation has instead focussed on what happened between October 2023, when Mrs Y reported that C had stopped attending school, and January 2024 when the Council issued the final EHC plan. The Council has provided records to show that C’s school offered alternative arrangements in October 2023 which Mrs Y declined. I do not think the Council was at fault in October 2023 because it was entitled to allow the school some time to make adjustments for C and to see whether those adjustments were successful before making other changes.
32. On 23 November 2023, notes from a telephone conversation between the Council and the school record that the school planned to make a referral the following week for alternative provision on medical or mental health grounds. The Council took no action between 23 November and 4 January whilst it waited for the referral. However, the school did not make the referral. The Council believes this may have been because the school knew the Council was in the process of finalising C’s EHC plan.
33. The Council was at fault because it did not make its own decision about the need for alternative provision once the school’s referral did not materialise. This is because a referral was not required for the Council to consider whether its duties under Section 19 were engaged. The duty to arrange suitable education for children who are unable to attend school due to illness, exclusion, or any other reason lies directly with the Council, not the school. While information from a school can assist in assessing a child’s needs, councils must act on any indication that a child is without suitable education and should not wait for a formal referral before considering or arranging alternative provision.
34. Where fault by a council has resulted in a loss of educational provision, we usually recommend a financial remedy of between £900 and £2,400 per school term, reflecting the impact of that loss. If the child would not have been able to manage full-time education, or received part-time education instead, this amount may be adjusted proportionally to reflect the level of provision that should have been delivered. In situations where it is not possible to say, on the balance of probabilities, whether the Council would have accepted that a section 19 duty applied, we may instead recommend a symbolic payment to recognise the uncertainty caused by the failure to make a documented decision.
35. The Council’s failure to consider the request for alternative provision caused injustice in the form of uncertainty because we cannot say on the balance of probabilities whether C’s allocated school continued to be available and accessible for them to attend. The Council has agreed to make a symbolic payment of £300 in recognition of that uncertainty.
36. There is also fault in the Council’s complaint handling because it did not log and respond to the stage two complaint made by Mrs Y in March 2024. The Council did eventually respond to the complaint in March 2025 after the LGSCO’s request. The Council’s complaints policy says: “If your request to progress your complaint to Stage 2 is accepted, a senior manager who has not previously been involved with your complaint will be asked to reinvestigate the matter”. While the Council did pass the complaint to a senior manager, there is no evidence the manager reinvestigated the matter. The stage two response largely replicated the stage one response without further analysis. The Council therefore failed to meet the standards expected under its own complaints process. This fault caused injustice to Mrs Y in the form of frustration, time and trouble.

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Action

37. Within four weeks of my final decision, the Council has agreed to:
• Apologise to Mrs Y for the injustice caused by the failure to consider its Section 19 duties and to decide whether to arrange provision for C once their school did not make the referral. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Pay £300 to Mrs Y. This is a symbolic payment in recognition of the uncertainty caused by the Council’s failure to consider whether it was necessary to arrange provision for C in line with its duties under Section 19 of the Education Act.
• Pay a further £150 to Mrs Y in recognition of the significant time and trouble caused by the failure to log and reinvestigate her stage two complaint.
38. Within eight weeks of my final decision, the Council will also:
• Remind relevant officers of the need to consider and clearly record decisions about requests for alternative provision under Section 19 of the Education Act, irrespective of whether a referral has been received from the child’s school. This is because the Section 19 duty lies with the Council, not the allocated school. Any records made by officers should outline the Council’s rationale for any such decisions and particularly with reference to the availability and accessibility of the child’s allocated school. The Council may issue this reminder via a staff briefing or team meeting and should provide us with evidence of this.
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice which the Council has agreed to remedy with the actions outlined in the above section of this statement.

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Investigator's decision on behalf of the Ombudsman