Summary: Ms X complained the Council failed to provide alternative provision for Z when Z was unable to attend school. I have found fault in the Council failing to properly consider if it had a duty under s.19 Education Act 1996 to provide alternative education in early 2025. The Council has agreed to apologise and review the situation by taking fresh decisions.

The complaint

1. In early 2025, Ms X complained the Council failed to provide alternative provision for Z, when Z became too unwell to attend school.
2. Ms X also complained about delay in completing Z’s Education, Health and Care (EHC) needs assessment.
3. Miss X said the matter caused her frustration and distress and impacted Z’s mental health.
4. Miss X wanted the Council to provide Z with alternative provision pending completion of the EHC needs assessment.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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

9. I have investigated the period from Autumn 2024 until the Council provided its final complaint response in mid-February 2025.
10. I have not investigated the period after mid-February 2025; Ms X has made a further complaint about this period (in May) which I am not satisfied the Council has yet had the opportunity to consider. While some of the issues raised in May are the same as the previous complaint, I am aware that Z has received further diagnoses, and this is an evolving situation. I consider it only fair to allow the Council the opportunity to consider the events after February through its own complaint process first. If Ms X remains dissatisfied with the Council’s response to her complaint about events after February 2025, then she can bring this to us to consider in future.

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How I considered this complaint

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

EHC Plans

13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). The Council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  Those consulted have a maximum of six weeks to provide the advice. 

S.19 education

15. 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.
16. 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)
17. 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)
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”.
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. Guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
21. 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
22. 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.

23. 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.

Elective home education

24. Parents and guardians have a right to educate their children at home (Section 7, Education Act 1996). Elective home education is distinct from alternative education provided by a council when a child is too ill to attend. In choosing to educate a child at home, the family take on financial responsibility for any costs involved.
25. Councils have a power, but not a duty, to provide support, for example funding or therapy at home, for children with special educational needs who are electively home educated. The Special Educational Needs (SEN) and Disability Code of Practice 2014 states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
26. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education, for example because home education is not being provided.

What happened

27. Ms X says Z has special educational needs and a history of trauma.
28. Ms X is Z’s special guardian.
29. Z had previous periods of home education in 2023/4, before the events that led to this complaint. Play therapy was provided from 2023, including while Z was home educated.
30. Attendance records show Z struggled to attend school in September 2024 and the school put in place a reduced timetable. Z attended reduced hours until December, when attendance stopped. School reported Z was developmentally delayed.
31. Z was seen twice by an educational psychologist in Autumn 2024 and continued to receive play therapy. Team around the child meetings were held with relevant professionals.
32. A request for an EHC needs assessment was made by school in December to consider if Z required an EHC Plan. That process is ongoing.
33. Ms X told me the Council’s elective home education officer was in touch with her in December but has not been in contact since.
34. A team around the child meeting was held in January 2024. Ms X view was that Z could not yet manage formal education or a school environment. Ms X was given advice by the Council that education otherwise than at school was not available (this would be because there was not yet an EHC Plan), and medical evidence from a specific professional would be needed to support a s.19 referral and this ‘may be a future route to look at’.
35. Ms says the Council’s inclusion officer pressured her to send Z back to school. The Council says a part-time reintegration plan was made in agreement with Ms X.
36. The plan was for Z to attend school two half days a week and then review this after six weeks. Meeting notes show that there would be ‘no pressure to increase this’.
37. The Council says it deemed two afternoons suitable education at that time as the intention was this would be for a short period and gradually increased. I have not seen contemporaneous evidence of this decision, so it is not clear to me if it was made at the time or this is the Council’s current view in response to my enquiries.
38. Ms X says Z’s health deteriorated when Z returned two afternoons, so she withdrew Z and deregistered him. The Council says Ms X decided to electively home educate Z in January a few days after the meeting.
39. Ms X disputes she is home educating electively. Ms X says she felt she had no choice but to deregister Z as the Council told her it would not provide alternative education without medical evidence from certain professionals, which she did not have. Ms X considers it would be detrimental to Z’s health for him to return to school.
40. There is evidence the school raised concerns about Ms X electively home educating with the Council and that, while it understood Ms X’s concerns about Z, it felt this decision may not be in Z’s interests, would reduce support to the family, and may not be sustainable. The school asked for the elective home education officer to contact the family.
41. Ms X made a formal complaint to the Council in January that after returning to school Z was wetting the bed, refusing to eat and vomiting. Ms X said she was keeping Z off school for health reasons. As Z had missed more than 15 days Ms X considered the Council should provide alternative education under s.19.
42. The Council’s complaint response in February repeated advice given at the January meeting that it would require medical evidence from a paediatrician, consultant, or mental health practitioner before it would consider s.19 education. It says Ms X had agreed to a gradual reintegration. The Council advised Ms X to obtain medical evidence to support her position for s.19.
43. In response to my enquiries the Council told me that it considers Ms X has been electively home educating since January and so it has no s.19 duty, Ms X having taken on the responsibility for educating Z. It says the EHC Plan is delayed as it is still awaiting educational psychology advice. A final EHC Plan was due in May and is still awaited.
44. The Council told me in relation to s.19 it does not insist on specific medical evidence and its practice “is in alignment with the statutory guidance, which would be to consider liaising with other medical practitioners should specific medical evidence not be quickly available”. The Council says it apologises if its advice to Ms X “appeared contradictory and not aligned with its current policy, which states we will liaise with other medical professionals in those circumstances”. The Council says its s.19 policy is currently being updated to reflect current practice and the statutory guidance, which will ensure that it avoids apparent contradictions such as this in future.
45. The Council’s current policy provides for a s.19 panel to consider cases weekly when children are out of school and missing education.

Analysis

Fault

46. The Council was aware Z was struggling to attend school in September 2024. The school put in a reduced timetable and Z attended regularly. We would not expect a Council to intervene when a child was attending regularly, and a school was using a part-time timetable on a short-term basis to support reintegration. I find no fault for the period up to December 2024.
47. In December 2024 the circumstances changed, and Z stopped attending. A meeting was held in January. The Council gave incorrect advice that s.19 provision could not be considered without medical evidence from a paediatrician, mental health professional or consultant. This is not in line with statutory guidance or the Council’s own policy.
48. In guidance “Summary of responsibilities where a mental health issue is affecting attendance” and “Working together to improve school attendance” the Government says professionals should provide cross-agency support through a team around the family to alleviate concerns about barriers to attending school. Guidance says Councils “must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education”.
49. Similarly, in R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said that it was not a precondition for alternative provision to be provided that parents have obtained a consultant’s report. “There may be other ways in which the child’s illness and inability to attend school come to the attention of the local authority”. The Judge said it was clear from section 19(1) itself that the responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds: it is the local authority’s decision.
50. I find that it was fault for the Council not to consider if s.19 education was required in January 2025 and to insist on specific medical evidence before it would consider a request. Even if a plan was in place for Z to attend two afternoons per week, the Council still had to decide whether this was a suitable level of education. It could, for example, have decided that Z attend school some hours and receive alternative education to supplement this to a level where the education was suitable for Z’s age, aptitude and SEN.
51. I am not persuaded the Council could rely on Ms X’s deregistration of Z as evidence she was electively home educating. There was evidence available from the team around the child meeting, from Ms X’s formal complaint, and from the school that Ms X was removing Z from school not as a positive choice to electively home educate but because she felt she had no alternative, based on the Council’s incorrect advice.
52. While the Council tells me it is satisfied Ms X is home educating, this ignores that Ms X’s complaint letters say the opposite. The Council’s home education officer did not contact Ms X when she deregistered, despite concerns raised by the school. I have seen no evidence the Council has sought to monitor the home education it says Ms X is providing. This is fault.
53. I also find the Council has failed to consider if it needs to provide support for Z’s SEN via funding or therapy to support home education. This is fault.

EHC Plan delay

54. The EHC needs assessment was behind schedule for the period (September 2024 to February 2025) I have investigated. Our usual approach for delays due to lack of educational psychology advice is to ask Councils to provide a symbolic payment for delay of £100 per month for each month the final Plan was delayed. As the final Plan was not due until May, this delay is something the Council should consider in response to the further complaint Ms X made in May, which is premature for us to consider.
55. The law and guidance requires professional advice to be provided within six weeks and says councils should not seek further advice if this is already available. It is not clear why the educational psychology advice from Winter 2024/5 is not sufficient for the purposes of the EHC needs assessment. Ms X has indicated she is content to use it, and I cannot see any explanation has been provided by the Council to Ms X on this point. This is fault.

Injustice

56. Z was not in receipt of fulltime education from Autumn 2024 to mid-February (the period I have investigated).
57. I have found it was fault for the Council not to consider whether its s.19 duty was triggered in January / February 2025 after the meeting or when it received Ms X’s complaint.
58. As the Council has not taken a decision under s.19, we do not know what its decision would have been. We do not know whether the Council would agree Z is unable to attend school due to illness or some other reason, or whether it considers Z can attend, or whether a dual approach of school and alternative education was merited. This uncertainty is an injustice.
59. The Council also did not consider in January 2025 whether it needed to provide support to Ms X for home education, given Z had significant SEN. This is fault. Again, as no decision was made, it is uncertain whether additional support may have been provided.
60. Any injustice for loss of educational support after mid-February is premature for us to consider. Ms X should allow the Council to consider this period under its own complaint process and can bring this complaint to the Ombudsman to consider if she is dissatisfied with the Council’s response.

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Agreed Action

Within four weeks of my final decision:

61. The Council will apologise to Ms X for the fault identified in this decision statement.
62. The Council will review whether it has sufficient existing professional advice to complete the EHC needs assessment and explain its view to Ms X in writing.
63. The Council will now take a decision whether it owes Z a s.19 duty setting out its decision to Ms X, in writing, with reasons. Such a decision is not contingent on a family providing specific medical evidence.
64. If the Council does not alter its decision that its s.19 duty is not triggered, and decides Ms X is electively home educating, it should go on to consider whether to use its powers to provide support to Z as a home educated pupil with SEN.
65. The Council will provide us with evidence it has complied with the above actions.

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Decision

66. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman