Summary: Mrs X complained the Council failed to provide alternative provision to her daughter when she could not attend school. We found the Council at fault for not properly considering its duties for alternative provision, causing frustration, distress and missed education. The Council has agreed to apologise, make a symbolic payment to recognise the injustice, and take action to prevent future recurrence of fault.

The complaint

1. Mrs X complains the Council has failed to provide suitable alternative provision for her daughter while she has been unable to attend school. As a result, her daughter’s education and welfare have been negatively impacted, and has caused financial difficulties and distress to the family.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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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How I considered this complaint

5. I discussed the complaint with Mrs X and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care Plans

8. The council has a duty to make sure the child receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Alternative provision

9. 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.
10. We issued a focus report "Out of school, out of sight?" issued in July 2022, updated in August 2023. This highlighted 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.

Background

11. Mrs X’s daughter (“J”) has special educational needs, Autistic Spectrum Condition (“ASC”), with significant difficulties with anxiety, communication and social interactions. She has an Education, Health and Care (“EHC”) Plan. Before the events of this complaint, J had a bespoke package, including provision outlined in Section F of her EHC Plan relating to tutoring, as she had not been able to attend her previous setting.

What happened – summary of key relevant events

12. In September 2024, J started the “School” (an ASC unit), after a gradual planned transition to a specialist secondary setting. J attended for around four weeks and did not return due to high levels of anxiety.
13. In early October 2024, the School contacted the Council. It explained the work it carried out towards a smooth transition for J but even with this, it seemed too big a step for her. It requested the Council’s support.
14. A week later, Mrs X contacted the Council. She asked for help as J could not attend the School. It acknowledged and passed it to the EHC Plan team.
15. In late October 2024, Mrs X chased the Council. She said J’s mental health had deteriorated and she needed provision. The Council’s caseworker responded. They had discussed J’s difficulties with the School. The caseworker visited Mrs X to discuss a support plan for J. After advice from the Council, the School tried to implement a part time timetable for J to support reintegrating her back gradually.
16. In early November 2024, the School contacted Mrs X. As she did not think a part time timetable to be suitable, it offered an Artificial Intelligent (“AI”) robot to connect J to her teacher and peers. This is what it could offer as reasonable adjustments but said the Council may be able to offer more.
17. A week later, the School updated the Council of a welfare visit to J. She would not consider part days. The Council caseworker requested an EHC Plan review and noted J would need provision in place while it planned next steps. They updated Mrs X.
18. In mid-November 2024, the School contacted Mrs X. It set up work for J to do at home and set up the AI robot. The School shared this with the Council.
19. Three days later, Mrs X made a formal request to the Council for alternative provision for J.
20. In late November 2024, Mrs X contacted the Council as she was struggling with J. She said the School had not provided the AI robot. The Council said it understood the School offered farm provision to J. Mrs X said this would not work as J associated it with the School which triggered her anxiety. The Council noted medical evidence should be collated regarding Section 19. It arranged a home visit.
21. In early December 2024, the Council contacted the School with an update. It requested the input of an Educational Psychologist (“EP”) who advised some work towards understanding J’s barriers to assist an EHC Plan review for the end of January. The Council’s SEN team agreed J needed provision in the interim. It asked the School to look for activities for J.
22. Two days later, the School contacted Mrs X outlining its offers to try to help J back into school. It offered six hours of tutoring as it had exhausted other offers of provision. Mrs X said she had agreed to the robot but not heard anything more about it and was happy to try tutoring. Mrs X updated the Council of this.
23. In mid-December 2024, Mrs X formally complained to the Council and said the School’s offers were inappropriate for J’s level of needs. She said the Council did not respond to her request for alternative provision resulting in missed education for J.
24. In late December 2024, the Council responded at Stage One. An EP was involved in the preparation for the EHC Plan review. Regarding alternative provision, it expected schools to utilise all resources available to it. It said J’s non-attendance was due to long term SEND needs rather than a short-term health need. It did not have medical information to support Section 19 to be in place for health reasons. It expected the School to continue working with her about provision.
25. In early January 2025, the Council responded to Mrs X’s complaint at Stage Two. It said she needed to take up alternative provision directly with the School. The Council said it would remain involved to support.
26. Mrs X then complained to us. She said she had to source and pay for various activities for J herself, impacting her wellbeing due to the time and energy used.
27. Since Mrs X’s complaint to us, she said since March 2025, J had been receiving six hours of tutoring, arranged by the School.
28. At the start of April 2025, the Council issued a new final EHC Plan for J.

The Council’s response to my enquiries

29. The Council said it reflected on the negative impact of inconsistent case follow up with provision for J. It relied on the feedback from the School as the School was responsible for delivering provision and putting support in place for J when she no longer attended. It offered £250 to recognise this.

Analysis

30. The investigation is limited to considering the role of the Council. We cannot consider the actions of the School as they are outside our jurisdiction.
31. The Council became aware of J’s non-attendance in early October 2024 when the School contacted it for help. The Council took some steps by contacting the School and visiting Mrs X. The Council advised the School to try a temporary part time timetable and it was entitled to try this initially.
32. I note the Council generally had good contact with the School. The School updated the Council that J could not engage with this and outlined other reasonable adjustments it offered, some of which Mrs X declined (although she said the School did not provide the AI robot). By mid-November 2024, Mrs X formally requested alternative provision.
33. From this point, the Council appeared to place a high reliance on, and shift responsibility onto, the School for education provision. This is incorrect. This is fault, and indicates a clear training need for the Council. While a pupil’s school can arrange this, the ultimate responsibility for ensuring alternative provision is suitable and accessible remains with the Council.
34. We expect education provision to be based on an assessment of an individual child’s needs. While the Council acknowledged difficulties and I recognise Mrs X declined some offers, I cannot see records from the time to show whether and how the Council decided the offers were sufficient and suitable for J based on her needs, whether this was reasonably accessible for her, or whether it considered it should source or make other arrangements to J such as tutoring or other off-site provision. This also meant Section F provision was not being delivered, which is the Council’s duty.
35. The Council said it understood the School was making suitable provision and J had a suitable placement. But the Council has not provided supporting running case notes from the time to evidence its decision making. With a lack of contemporaneous evidence, I cannot see how it decided this. Therefore, I cannot be satisfied it demonstrated proper consideration of her circumstances.
36. There is also some uncertainty about whether provision could have been in place sooner had the Council taken more ownership on its alternative provision duty, rather than relying on the School.
37. The Council said it did not have medical information to support section 19 needed to be in place for a short-term health need. However, our guidance makes it clear that the Council should consider making alternative provision where a child is not able to attend school for any valid reason (not just medical and includes mental health needs) where it is clear the absence will be over 15 days. It should have considered all the evidence it had, even where there was no medical evidence, to make a properly considered decision about alternative provision. This is fault. This flawed decision caused uncertainty and frustration for Mrs X.
38. On balance, I recognise the Council made visits, offered advice to the School, and it took guidance from the EP. The Council’s approach appeared to focus more on preparing information for an EHC Plan review. These were appropriate steps, but this was not education.
39. The Council acknowledged some fault in response to my enquiries, but I have identified further specific areas of fault above. In my view, its remedy does not go far enough to recognise the injustice and have made recommendations below.
40. Overall, I find the Council at fault for the lack of alternative and Section F provision for J between November 2024 and March 2025. This caused injustice to J as she has missed out on education.
41. It is positive J has had tutoring in place since March 2025, arranged by the School. For now, I have considered the injustice up to this point. If Mrs X has concerns about the tuition or J’s education since, she needs to make a new complaint directly to the Council to give it an opportunity to consider through its complaints process first.

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Action

42. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
43. Within one month of the final decision:
• Apologise to Mrs X and J for the injustice caused by the faults identified (in line with our guidance on making an effective apology);
• Pay £1,350 as a symbolic payment to recognise the impact to J for the lack of education between November 2024 and March 2025. This could be used for J’s educational benefit; and
• Pay Mrs X a symbolic payment of £150 to recognise the frustration and distress caused to her.
44. Within two months of the final decision:
• It should share a copy of our "Out of school, out of sight?" focus report to relevant staff. It should highlight key points to ensure officers are aware of their responsibilities in relation to the Section 19 duty. This should include that it is the Council’s ultimate duty to arrange alternative provision, what factors they should consider when deciding if there is a duty for it to act, including assessing the child’s individual needs and circumstances. It should also remind staff to properly record its reasons for decisions made at the time.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council agreed to my recommended actions to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman