Summary: Mrs X complained the Council failed to provide alternative provision for her child, Y when they stopped attending school due to anxiety. The Council was at fault, it failed to consider whether it owed Y a Section 19 duty and failed to maintain an oversight over their education while Y was not attending school. The Council agreed to apologise to Mrs X and make a payment to acknowledge the distress and uncertainty caused.

The complaint

1. Mrs X said Y had not been in full-time education since 2022 and had stopped attending school altogether from March 2024 due to anxiety. She complained the Council failed to provide Section 19 Alternative Provision (AP) for Y when they stopped attending school.
2. Mrs X stated this caused her family avoidable distress and financial hardship. She is seeking reimbursement for the educational expenses incurred and wants the Council to fund Y’s ongoing private tuition.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. 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)
7. Mrs X complained Y was out of full-time education since 2022 but stopped attending school entirely from March 2024 onwards. I will not investigate the Council’s actions prior to March 2024 as Mrs X’s complaint to us about these is late. There is no good reason why Mrs X could not have complained to us about these events earlier.
8. I am investigating the timeframe from March 2024 when Y stopped attending school until January 2025 when the Council issued its stage two complaint response.
9. 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)
10. The Council decided it would not issue Y an Education, Health and Care (EHC) Plan following Mrs X’s request to assess Y. Mrs X appealed the Council’s decision to the SEND Tribunal. I therefore cannot investigate this part of Mrs X’s complaint.

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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

Relevant law and guidance

Section 19 duty

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. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

Inability to attend due to ill health

16. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
17. 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))
18. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.

Health needs

19. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. 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
21. 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.

22. 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.

EHC Plans

23. 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.

SEND tribunal

24. 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.
25. There is a right of appeal to the Tribunal against a council’s decision not to issue an EHC Plan following an EHC needs assessment.

What happened

26. Mrs X has a child, Y, who has special educational needs. Y struggled to attend school full-time since 2022. In November 2023, Y was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD). To support Y’s learning and help them keep up with their education during this time, Mrs X arranged one-to-one tutoring in Maths and English which she privately paid for.
27. In March 2024, Y stopped attending school entirely due to anxiety. During this period, Mrs X waited for Y’s assessment for Autism Spectrum Disorder (ASD) and contacted the school to inquire about deregistering Y with the intention of beginning home education. However, the deregistration process was not completed, and Y has remained on the school’s roll.
28. The school did not record Y’s absence as authorised, as it determined the suspected ASD diagnosis was not sufficient medical evidence. There is no record the school informed the parents of this decision. Instead, the school implemented Special Educational Needs (SEN) support for Y which included measures to try and get them to attend at least part time. This support included providing a laptop for home use, issuing a time-out card to allow Y to leave class when needed, reducing Y’s timetable by two lessons, and allowing an additional 25% extra time for exams. Y also participated in a six-week mechanics’ course. Additionally, the school carried out monthly home visits as part of its safeguarding procedures.
29. In preparation for Y’s GCSEs, Mrs X consulted the school for guidance on the most appropriate subjects for Y to prioritise. Following the school’s advice, she arranged a comprehensive programme of private one-to-one tutoring in those key areas to help Y stay on track academically.
30. In May, the school requested support from the Council. However, the Council advised the school to contact its Special Educational Needs and Disabilities (SEND) team for guidance, particularly concerning Y’s medical needs. The Council also encouraged the school to consider alternative provision options.
31. In June Mrs X requested an Education, Health and Care (EHC) needs assessment hoping the Council would issue Y with an EHC Plan.
32. Following the EHC needs assessment request, the Council contacted Y’s school asking if it had made alternative provision for Y. Case records show the school failed to respond to this email. By this point, Y had not attended school for nearly three months.
33. In July, the school contacted the Council stating it had medical evidence Y was unable to attend school. The Council advised the school to consider alternative provision.
34. In October, following the EHC needs assessment the Council decided it would not issue Y an EHC Plan. Mrs X appealed this decision to the SEND tribunal.
35. After submitting the appeal documents, Mrs X also complained to the Council stating the Council had failed to provide Y with suitable alternative education.
36. In early November the Council enquired with the school if it had put alternative provision in place, and whether the school made a referral to Access to Education (A2E) - a provider for education services for children who cannot attend school through exceptional circumstances. The school said it had started Y’s referral to A2E. During a home visit the school said it discussed the option of Y accessing A2E with Mrs X.
37. Mrs X told us when the school offered Y access to the A2E programme, she did not fully understand what it involved. She believed it was a short-term solution aimed at reintegrating Y into the classroom. Mrs X said she informed the school she did not believe Y would ever be able to return to a mainstream classroom setting. She also explained Y had already established a stable routine with their private tutors, and that continuing with one-to-one tutoring was, in her view, the most effective way to support Y’s educational progress. She declined A2E as an educational provision for Y.
38. In December, the Council responded to Mrs X’s complaint, stating it had followed the latest guidance. After receiving medical evidence confirming that Y could not attend school, the Council advised the school to consider alternative provision. It also explained the school maintained regular contact with Y through home visits and had begun completing the necessary forms for Y to access A2E.
39. In January 2025, following advice from a solicitor, Mrs X asked the school to provide private tutoring which the school confirmed it was unable to do. Instead, Mrs X requested to trial the A2E programme.
40. A week after Mrs X’s request the school sent its A2E referral to the Council but to date Mrs X had not had an update from the Council on this.
41. Mrs X remained unhappy and complained to us.
42. Following our enquiries, the Council said it sees no reasons why Y cannot access education in school and it further said a medical panel decided in June 2025 the Council did not owe Y a section 19 duty as Y had access to provision which the parents chose to put in place.
43. In August 2025 the SEND tribunal issued a consent order for the Council to issue Y with an EHC Plan.

My findings

44. The Council was aware Y had stopped attending school in March 2024. At this point it had a duty to consider whether it owed Y a section 19 duty. There are no case records to confirm it considered this at the time or informed Mrs X of a decision. This was fault which caused Mrs X uncertainty.
45. The Council asked the school on multiple occasions to consider providing alternative provision. In July the Council received medical evidence that Y was unable to attend school. It advised the school again to look into alternative provision upon receiving this new medical evidence. While a council can arrange for schools to carry out its functions on their behalf, the council remains responsible. Therefore, the Council should have retained oversight to ensure this was carried out. There is no evidence the Council followed this up and considered, based on the evidence whether alternative provision was appropriate. This was fault.
46. Given the Council asked the school to put alternative provision in place, it is likely, on balance that the Council believed alternative provision was appropriate at the time. Had the Council kept oversight, it is likely Y would have been offered access to the A2E programme earlier. Instead, the school did not start to work on the A2E referral papers until November 2024 when the Council prompted the school. However, given Mrs X declined A2E in November, It Is equally likely, on balance she would have declined the A2E programme had the Council offered it earlier. Therefore, I can only say the delay has caused uncertainty.

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Actions

47. Within one month of the final decision the Council agreed to take the following action:
1. apologise to Mrs X for the distress, frustration, and uncertainty caused by its failure to consider whether it owed Y a Section 19 duty. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council agreed to consider this guidance in making the apology I have recommended.
2. pay Mrs X £1,000 to acknowledge the uncertainty the Council caused due to its lack of oversight and control between March 2024 and November 2024.
48. The Council agreed to provide us with evidence it has complied with the above actions.

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Decision

49. I completed this investigation finding fault causing an injustice. The Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman