Summary: Mrs X complained the Council failed to provide education for her child who has been absent from school since January 2024. We found fault with the Council failing to ensure Y had access to suitable education for time periods totalling two terms and one week from 21 February 2024 to 21 March 2025. The Council agreed to apologise to Mrs X and pay her £3,325 for Y’s missed education. The Council also agreed to remind staff about the importance of acting in line with government guidance over timescales for considering its Section 19 duty. And, the Council agreed to provide training to staff about how it should consider and carry out its Section 19 duty.

The complaint

1. Mrs X complained the Council failed to provide education for her child who has been absent from school since January 2024.

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The Ombudsman’s role and powers

2. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. 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).
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation 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 organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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 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

8. I have investigated Mrs X’s concerns about the Council failing to provide suitable education for her child since January 2024.
9. I have ended my investigation from 21 March 2025. This is because the Ombudsman cannot keep an investigation open ended and a council must be given opportunity to respond to a complaint before the Ombudsman investigates. In this matter, 21 March 2025 was a suitable end point for this investigation because this is the date the Council finalised Mrs X’s child’s EHC Plan and the Council had issued its final complaint response before this date.
10. Once the Council finalised the EHC Plan, this formed the basis for how it would support Mrs X’s child’s access to education. Mrs X had an appeal right about this EHC Plan to the SEND Tribunal and has already engaged in mediation with the Council. This presents a jurisdictional bar for the Ombudsman because of the cross-over between Y’s inability to access school and the support from the EHC Plan.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. 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

Alternative provision of education

13. 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.
14. 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)
15. 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))
16. 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)
17. 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
18. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

19. 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.
20. 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.
21. 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.

What happened

22. Mrs X’s child, who I shall refer to as Y, was attending primary school in year 5 until 18 January 2024. Y stopped attending school prompting Y’s school to contact the Council to request a Pupils Educationally at Risk (PEAR) meeting to discuss Y.
23. On 21 February 2024, the Council held a triage meeting with the school. The Council recommended the school put in place an early help referral and to submit a full PEAR referral for the Council to consider. The Council decided it was not appropriate to provide home learning for Y at this time.
24. Y’s school submitted a formal PEAR referral on 6 March 2024. At this time, Y’s school confirmed that Y had not been in school since 18 January 2024.
25. On 18 March 2024, Y’s school met with the Council again to discuss Y. Y’s school said it was not still able to get Y into school despite offering different options. The Council did not make notes about its decision to support Y at this time.
26. The Council held a PEAR panel on 16 April 2024. At the panel, Y’s school confirmed Y was not attending school but when she does attend she engages with no issues. The medical information did not state that Y was medically unfit to attend school. The Council confirmed following the meeting it would:
• Write to school to provide tools to help construct a reintegration plan for Y;
• Work alongside school for Y’s anxiety;
• Tell school to contact a private psychiatrist to get their input to inform co-construction of an intervention or transition plan to support Y back into school.
• Progress with HALOs if school and parents provided evidence to support this but Council had its concerns over the suitability of this.
27. The Council followed through on this action and on 24 April 2024 spoke with Mrs X. Mrs X told the Council she wanted to work with the school and she was willing to do anything the Council could offer with support for Y. The Council responded to advise it would be happy to support with co-construction for a reintegration plan for Y.
28. Y continued to struggle to access school despite support on offer from Y’s school. The Council has shown no input for Y’s education after 24 April 2024.
29. On 23 September 2024, Mrs X made a formal complaint to the Council. Mrs X said:
• Y was enrolled at a school but had been struggling with attendance for two years.
• Despite the school’s best efforts and a reintegration plan in place, Y had only managed minimal attendance since January 2024.
• The Council was aware of this situation but had failed to put in place steps to ensure Y received a suitable education.
• She wanted the Council to provide alternative provision of education for Y as soon as possible.
30. On 24 September 2024, Mrs X submitted an EHC Plan Needs Assessment application to the Council.
31. The Council spoke with Mrs X on 25 September 2024 about her complaint. Mrs X explained her concerns about the lack of plan for Y’s education. The Council said it planned to offer a mentor for Y to begin the reintegration process who will help to co-construct a reintegration plan and discuss a graduated approach to engagement with education. Mrs X returned the completed consent form for the mentor on 26 September 2024.
32. On 1 October 2024, the Council’s mentor contacted Mrs X and arranged a first home visit for 7 October 2024. The mentor completed this home visit as promised and confirmed with Mrs X that a fixed reintegration timetable had yet to be provided for Y.
33. During the mentor’s home visit on 14 October 2024, they talked through a proposed reintegration timetable with Y to get Y’s input. The mentor reported this to the Council and said that Y was completing schoolwork sent home by Y’s school. The mentor suggested use of a “class robot” so Y could sit in on classes in real time remotely.
34. Following discussions with the school, the Council did not progress with the mentor’s suggestion for use of the “class robot” and instead agreed to provision of online learning. On 18 October 2024, Mrs X liaised with the mentor and Y’s school about online learning and provided the information needed to set this up.
35. Following the mentor’s weekly visit on 21 October 2024, the Council provided extra information about online learning to Mrs X at the mentor’s request. The mentor said they hoped to grow a rapport to promote Y into school.
36. On 25 October 2024, the Council issued a Stage 1 complaint response to Mrs X. The Council said:
• Following a referral from Y’s school it held a PEAR panel meeting on 16 April 2024. This panel meeting advised Y’s school to bring clinical experts together to inform a suitable support and reintegration plan for Y.
• It contacted Mrs X following the panel meeting who confirmed she wanted to work with the school to get Y back in as often as possible.
• Because it did not receive any further contact from Y’s school it considered the graduated response was working.
• Following Mrs X’s complaint in September 2024, it contacted her and arranged for a mentor to work with Y and help co-ordinate reintegration into school.
• It had now arranged for Y to access online learning which meets its Section 19 duty to provide education for children who are unable to attend school despite there being no medical evidence that Y cannot attend school.
• It does not consider it is failing its statutory duty since there is no medical evidence to support Y’s non-attendance.
37. On 5 November 2024, Y’s mentor confirmed Y could access online learning and provided the relevant login details. The mentor said there was no pressure to access this immediately and the online learning provider would be in touch to arrange a meeting as requested by Mrs X.
38. On 7 November 2024, a formal reintegration plan was created for Y. This reintegration plan included access to education through online learning and Y’s input and comments about the timetable. The plan outlined that Y would slowly reintegrate into the school setting. The goal was for Y to attend 50% of afternoon sessions in school by the end of the Spring term and 80% of all lessons by the end of the year.
39. Y’s school shared the reintegration plan with Mrs X on 14 November 2024.
40. Y started to attend online learning sessions on 18 November 2024.
41. Mrs X sought consideration of her complaint at Stage 2 of the Council’s complaints procedure on 21 November 2024. Mrs X said:
• It disagreed with the Council’s statement that it had no duty to provide Section 19 education for Y because there was no evidence she was medically unfit to attend school. Mrs X said Y had three mental health needs that made it difficult for Y to attend school.
• Y’s attendance records shows Y cannot attend school and Y’s school put in a request for Section 19 education meaning they also consider Y cannot attend school.
• Even if the Council considered Y was medically fit to attend school, they should still provide Section 19 education because of the “other reasons” category.
• The Council should have followed up with Y’s school and not relied on the school contacting it about the reintegration plan.
• While the Council has provided online learning from 18 November 2024 there is no evidence the Council has considered Y’s individual needs when making this offer.
42. On 19 December 2024, Y’s mentor issued a closing report for their intervention work with Y following discussions with the Council about withdrawal of this service. Y’s mentor confirmed Y had been accessing education through online learning and Y’s school had sent a range of resources home for Y. The mentor noted Y was still not attending school and suggested strategies moving forwards which could be beneficial for Y.
43. The Council declined to issue an EHC Plan Needs Plan for Y on 31 December 2024.
44. On 6 January 2025, the Council issued a Stage 2 complaint response to Mrs X. The Council said:
• It had reviewed the medical evidence and believed that with suitable support Y’s school would a suitable learning environment for Y.
• Y’s school had already implemented various support strategies and a graduated reintegration approach.
• It introduced online learning to eliminate concerns about Y’s lack of engagement in learning causing anxiety as a contributing barrier to reintegration in school.
• Online learning was ready to use from 18 October 2024 but the delay in starting this was because Mrs X wanted a meeting with the provider.
• It will consider consulting with medical professionals to enquire about what a child with similar presentation to Y should be able to manage in terms of accessing education.
45. Mrs X made a mediation request over the decision not to issue an EHC Plan needs assessment on 17 January 2025.
46. On 24 January 2025, a psychological report issued for Y confirmed Y had stopped accessing online learning and that while interventions had been put in place this had not resulted in a lasting change. The report detailed that it was unlikely Y “will be able to access mainstream education in a consistent manner without significant change to the interventions offered”. The report made a range of recommendations of support for Y.
47. On 21 March 2025, the Council issued a Final EHC Plan for Y. Mrs X made a mediation request about the content of the Final EHC Plan on 27 March 2025.

Analysis

21 February 2024 to 6 March 2024

48. It is not the role of the Ombudsman to investigate the actions of a school. I could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
49. The first evidence of Y’s school or Mrs X telling the Council about Y’s absence is on 21 February 2024 during the triage meeting. At the time of this meeting, Y had been absent from school for over 15 school days.
50. The Council had a duty to consider Y’s access to education when the school made it aware of Y’s difficulties in accessing education at this triage meeting. The Council’s Section 19 duty does not always mean it must provide education for a child not attending school. The Section 19 duty means the Council should consider a child’s individual circumstances and decide whether suitable education is available to this child or whether it needs to provide suitable education itself.
51. At the time of the triage meeting on 21 February 2024, the Council decided that suitable education was accessible and available to Y at the school. The Council decided it did not need to provide education for Y and provided advice to Y’s school about how it should support Y. I cannot find fault with the Council’s decision making at this time.

6 March 2024 to 16 April 2024

52. Following the triage meeting, Y’s school followed the advice from the Council and subsequently submitted a formal PEAR referral on 6 March 2024. This referral reiterated that Y was still absent from school since 18 January 2024.
53. The Council took six weeks to consider this at panel. Of which, four were school weeks. The Council should being making decisions about what course of action to take for a child missing school, including arranging education, from the sixth day of absence. Taking six weeks rather than one week to form a panel to make such a decision following confirmation a child is still absent from school is delayed action; this is fault.
54. As the Council should have considered Y’s circumstances and decided whether to put education in place from the sixth day of absence, the Council’s delay caused Y three weeks of missed opportunity for education caused by the fault of the Council.

16 April 2024 to 24 April 2024

55. At the PEAR meeting, the Council has shown it considered Y’s individual circumstances surrounding Y’s absence from school. The Council concluded there was no medical reason Y could not attend school; this was a decision the Council was entitled to make on the evidence available.
56. The Council decided that despite Y being medically fit to attend school it should seek professional input for Y to produce a reintegration plan. The Council decided it should work alongside Y’s school in co-construction of this plan.
57. The Council followed the relevant guidance and legislation in deciding not to provide Alternative Provision of education for Y. The Council made a merits decision it was entitled to make to work with the school to form a reintegration plan and support Y back into school. I cannot find fault with the Council.
58. The Council acted correctly to liaise with Y’s school and Mrs X about the outcome of the PEAR meeting and start the process of putting its decided actions into place.

24 April 2024 to 25 September 2024

59. Once the Council decided that Y could access education at Y’s enrolled school with the support of a co-produced reintegration plan, it had a duty to work with Y’s school and Mrs X to draw up the reintegration plan. The Council also had a duty to keep this under review and ensure Y was back in education as soon as possible.
60. Despite Mrs X telling the Council on 24 April 2024 she would accept any offer of support the Council could provide, the Council failed to involve itself with Y’s reintegration plan. A council can delegate responsibility of provision to a school and entrust a school to take day to day actions of a reintegration plan. But, a council has a responsibility for oversight and support of a child’s reintegration into school. The Council failed to provide any support to Y’s school or Mrs X and failed to review progress. While the Council has stated it assumed Y’s school would contact it if progress was not being made, this is a failure to meet its responsibility.
61. The Council was at fault from 24 April 2024 to 25 September 2024. This fault resulted in Y receiving minimal education with only sporadic attendance at school over one term and one week.

25 September 2024 to end of Autumn term

62. Following Ms X’s complaint, the Council arranged for a mentor to work with Y. This mentor’s role was to help facilitate production of a suitable reintegration plan for Y and help support Y back into education.
63. The Council has taken the correct steps to take control of Y’s reintegration into school. The mentor worked with Y and got Y’s input on the reintegration plan ensuring that Y’s voice was heard in this process. This mentor also started the process of trying to break down barriers Y had to education in school. The mentor also made suggestions to the Council about what provision to put in place for Y in the home setting to help support her access to education. I cannot find fault with the Council’s actions.
64. The input from the mentor resulted in the Council setting up online learning for Y. The Council’s rationale for online learning is appropriate given that it wanted to provide education for Y to prevent her falling behind her peers to remove this particular anxiety. The Council retained a primary focus on using the reintegration plan by creating a balanced timetable of education with a gradual introduction of education and exposure to school. The Council also formed this timetable following input from Y to ensure her voice was heard and shows a consideration of Y’s individual circumstances.
65. Y accessed online learning regularly from 18 November 2024 through to the end of term.
66. Overall, from 25 September 2024 to the end of the term, the Council has taken suitable steps to provide education for Y in a manner which it considered was appropriate and suitable to support Y’s reintegration into school. A council does not have to provide full-time education as part of Section 19 provision but should consider the relevant factors when making its decision about how to provide education. The Council has shown in this instance a suitable and proportionate approach through the mentor, reintegration planning and online learning. I cannot find fault with this.

January 2025 to 21 March 2025

67. Y’s mentor stopped on 19 December 2024 despite Y still being absent from school. The Council made this decision to stop provision of the mentor because it had concerns this service was enabling continued absence from school. The mentor confirmed that Y was not accessing school and made recommendations to help support Y.
68. Y also stopped accessing online learning in January 2025 with Y only attending three sessions on 8 January 2025, 16 January 2025 and 22 January 2025. A psychological report completed of Y also confirmed Y had stopped accessing online learning on 24 January 2025. This report also detailed what support should be put in place for Y to help her access education.
69. The Council decided on 6 January 2025 that Y’s school was suitable for Y and that Y could access this school if suitable support was put in place. The Council was entitled to make this decision and, in theory, it did not need to provide any alternative provision of education following this decision. However, the Council failed to ensure any support was put in place to help Y reintegrate into school as recommended by the professionals working with Y. The need for support to access school was part of the Council’s decision that school was suitable and access for Y.
70. There is no evidence of the Council providing any input to help Y access education from the start of the January 2025 term to 21 March 2025; this was fault. This is despite the Council being aware that Y was not accessing online learning and having recommendations available to it from relevant professionals. The Council was at fault for Y missing 10 weeks of education with only a few online learning sessions worth of education.

Recommendations

71. 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.
72. From 21 February 2024 to 21 March 2025, the Council has been at fault for Y missing two terms and one week of full education. During this time period of fault, Y has only been able to access sporadic days in schools and a small number of online learning sessions. This time period does not include from 25 September 2024 to the end of the Autumn term.
73. I have considered Y’s individual circumstances, including being in a key academic year or year 6, and our guidance on remedies. This considers the lack of formal educational provision Y received caused by delays and lack of monitoring by the Council. This is balanced against the provision provided by Y’s school and the small number of online learning sessions accessed in January 2025. I consider the Council should pay Miss X £1,600 per term for Y’s missed education totalling £3,325. Mrs X may use this to source any suitable catch-up provision she considers appropriate for Y.

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Action

74. Within one month of the Ombudsman’s decision the Council should:
• Apologise to Mrs X for her child’s lost education and for the inconvenience and frustration this matter has caused Mrs X.
• Provide a payment to Mrs X of £3,325 for Y’s missed educational provision from February 2024 to 21 March 2025 totalling two terms and one week. Mrs X may use this to source any suitable catch-up provision she considers appropriate for Y.
75. Within three months of the Ombudsman’s final decision the Council should:
• Remind staff that Government Guidance outlines a council should be considering its Section 19 duty (Education Act 1996) to provide education for children and, if applicable, putting this in place, from the sixth day of a child’s absence.
• Provide training to staff about its Section 19 duty (Education Act 1996). Namely about the Council’s responsibility to work with schools and parents to draw up reintegration plans and to retain oversight of a child’s reintegration into school ensuring that a child is back in school as soon as possible.
76. The Council should provide us with evidence it has complied with the above actions.

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Decision

77. 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