Summary: Mrs X complained that the Council failed to deliver education to her son while he could not attend school. We have found that the Council was not at fault for its offer of education. It considered its duties and made a decision which was not unreasonable. It was, however, at fault for providing Mrs X with some incorrect information. This did not cause Mrs X a significant injustice, and therefore we have recommended no further action.

The complaint

1. Mrs X complains that the Council failed to support her son, Y, when she withdrew him from school because of bullying.
2. Mrs X says:
• The Council failed to provide a ‘safe’ educational environment for Y.
• The Council failed to deliver alternative educational provision to Y when he was unable to attend school with anxiety.
• The Council’s social care service also refused to deliver support to Y, even though he had been exposed to harm.
• The Council refused to carry out an assessment of Y’s special educational needs.
• Mrs X was ‘forced’ to register Y for home-schooling, and the Council failed to support her to get him back into school.
3. Mrs X says Y suffered emotional and physical distress from the bullying he experienced.

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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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
8. 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.
9. If we are satisfied with a council’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)
10. 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

11. I have not investigated Mrs X’s complaint about the safety of Y’s school placement, because this is a school matter which is outside our jurisdiction.
12. I have not investigated Mrs X’s complaint that the Council refused to carry out an assessment of Y’s special educational needs. This matter has been appealed to the Tribunal, so it is outside our jurisdiction.
13. I have not investigated Mrs X’s complaint about a lack of social care and school reintegration support. I have seen no evidence that Mrs X has tried to address these things through the Council’s complaints procedure. Until she has done so – and the Council has been given the opportunity to provide a full and final response – we cannot look at them.
14. I have, however, investigated Mrs X’s complaint about the Council’s refusal to deliver education to Y after he stopped attending school.

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How I considered this complaint

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

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What I found

Law and guidance

17. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘section 19’ or ‘alternative’ provision.
18. Parents have a right to educate their children at home (Section 7, Education Act 1996). The parents take on financial responsibility for any costs involved. (Government guidance, ‘Elective home education’)

What happened

19. In early November 2024, Mrs X emailed the Council to say that Y had been suffering severe bullying at school (and had been assaulted 28 times). She said the school had done nothing to help. She said she would now withdraw him from school for his own protection and asked the Council to take “immediate action”.
20. Mrs X notified Y’s school that she was withdrawing him on the same day.
21. Three weeks later, Mrs X wrote to the Council again. She repeated the reasons why Y was not attending school. She confirmed that he had not been in school for three weeks. She asked it to deliver alternative provision under section 19 of the Education Act.
22. The Council told Mrs X it would deal with her request as a complaint.
23. Shortly after this – and before the Council had had the opportunity to respond to her section 19 request – Mrs X asked to educate Y at home. She said she had been “forced” to do this because of the lack of an available safe school, and because of the Council’s failure to deliver alternative provision to Y. She said, “The decision is not permanent. I will home-educate my son until any safe educational environment is offered”.
24. The Council wrote to Mrs X outside its complaints procedure. It said:
• Safeguarding issues were the responsibility of Y’s school.
• It did not recommend that she educated Y at home, because, if she wanted him to return to a school within the same academic year, it would be the same school she had just withdrawn him from.
• Although the Council could deliver alternative provision, this would be temporary and short term. And “[a] fundamental element of the support is reintegration to school”, which would require Y to start reattending the school Mrs X had just withdrawn him from.
25. The Council recommended that Mrs X seek a transfer. It provided information about how she could do this.
26. Shortly after, the Council also sent a complaint response to Mrs X. It told her:

Alternative education is arranged by the school who the child is enrolled with … The Local Authority would only arrange for Alternative Education if it was deemed suitable when a child is permanently excluded from a mainstream school.

27. Mrs X escalated her complaint. She said the Council, not Y’s school, had a duty to deliver section 19 provision. She said anxiety, which Y suffered from, was classed as a “mental health illness”.
28. The Council agreed to Mrs X’s home education application in mid-December.
29. Shortly after, the Council responded to Mrs X’s second complaint. It said:
• As Mrs X had decided to home-educate Y, she was now responsible for his education.
• If she wanted Y to attend a different school, she would need to go through its school admissions service.
• Alternative provision is for schools to arrange, unless the child is permanently excluded.
30. Mrs X says Y remains home-educated, although she is trying to get him back into school.

My findings

31. Councils (not schools) are responsible for making arrangements to deliver education to children if – for whatever reason – they would not get an education without those arrangements. This duty is not necessarily limited to children who have been permanently excluded, or even those who have medical issues.
32. Ordinarily, when a council is told that a child cannot attend school, it should seek and consider evidence to decide whether the school is available and accessible to the child, and whether it is, therefore, reasonable to expect them to return.
33. A council can ask a school to deliver alternative provision on its behalf. But the statutory responsibility remains with the council.
34. In Y’s case, there was no fault in the Council’s consideration of his circumstances or its decision on Mrs X’s request for alternative provision. Its explanation why a school transfer would be more appropriate for Y was a matter of professional judgment and does not appear to have been unreasonable.
35. Furthermore, by the time the Council had considered Mrs X’s request for alternative provision, she had already applied to home-educate Y. When the Council agreed this, Mrs X became completely responsible for Y’s education, which made any prior request for alternative provision irrelevant.
36. The Council did tell Mrs X that it only needed to deliver alternative provision if a child had been permanently excluded. This was not a fair reflection of its section 19 duties.
37. However, this matter caused Mrs X no significant injustice, because:
• By the time the Council told her this, she had already applied to home-educate Y.
• She had already been advised, separately, of the Council’s decision on her request for alternative provision – a decision with which there had been no fault.
38. Consequently, although the Council was at fault for providing incorrect information to Mrs X, it would not be proportionate to recommend further action.

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Decision

39. There was some fault in the information the Council communicated to Mrs X, but this caused her no significant injustice. There was no fault in how it handled her request for alternative educational provision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman