Summary: Mrs X complained the Council refused to provide section 19 alternative provision for her son, Y, who could not attend school for medical reasons. As a result, Y had no educational provision. We found the Council was at fault for the advice it gave Mrs X and the way it explained its decision. However, we did not find this caused significant injustice to Y as the fault did not affect the Council’s decision.

The complaint

1. Mrs X complained the Council refused to provide section 19 alternative provision for her son, Y, who could not attend school for medical reasons. As a result, Y had no educational provision.
2. Mrs X said Y’s school were not meeting his needs and the school was not suitable. Mrs X has medical evidence from an NHS crisis team confirming school is a trigger for Y’s harmful thoughts.

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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(1), as amended)

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How I considered this complaint

5. As part of the investigation, I considered the complaint and the information Mrs X provided.
6. I made written enquiries of the Council and considered its response along with relevant law 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.
8. 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 found

School attendance

9. Section 7 of the Education Act 1996 requires parents of children of compulsory school age to ensure their child receives fulltime education by regular attendance at school or otherwise.
10. Councils can also prosecute parents for a criminal offence if they fail to ensure their child attends regularly at school. (s.444(1)(A) Education Act 1996)
11. Statutory guidance Working together to improve school attendance says schools, councils and families should work together to identify root causes of absence and remove barriers to attendance. This may include putting in place an early help plan, or assessing for an Education, Health and Care (EHC) plan.

Education support services

12. Under the Council’s graduated approach, each school must identify and address the Special Educational Needs (SEN) of pupils. This means ensuring pupils with SEN engage in school activities alongside pupils who do not have SEN.
13. High quality teaching, differentiated for individual pupils, is the first step in responding to pupils with SEN. Access to support is based on a cycle of Assess, Plan, Do, Review, as set out in the SEND Code of Practice (2015).
14. The Autism Social Communication, Education and Training Service (ASCETS) consists of teachers and support officers specialising in supporting schools, children and young people and their families to enhance the learning outcomes for autistic learners or learners with social communication differences. They mainly work in schools to support them to give suitable provision.
15. The Behaviour Outreach Support Service (BOSS) works alongside schools to support children and young people who may be experiencing behavioural difficulties or have an unmet or identified social, emotional mental health need. They also work collaboratively with families and schools to create and deliver bespoke support plans for children with behaviour or social, emotional mental health need.
16. With me in Mind (WMIN) is a mental health support team supporting children and young people. They give advice to schools to help children and young people stay in education. They also offer parental support.

Education when a child cannot attend school

17. 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.
18. 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)
19. 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)
20. 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.
21. Statutory Guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure minimal delay in arranging appropriate provision for the child. The Guidance says Councils should not unnecessarily demand continuing evidence from a consultant without good reason.
22. In new 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 a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. 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.
23. 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
24. 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.

25. 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.

What happened

26. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
27. Y started secondary school in September 2024 but stopped attending due to anxiety.
28. The school put in place a Special Educational Needs and Disability (SEND) plan to support Y to attend.
29. Mrs X sought an EHC needs assessment for Y on 30 September 2024. The Council agreed to carry out an assessment.
30. Mrs X wrote to the Council’s director of education on 9 October 2024 advising Y could not attend school and requesting alternative education. She said Y struggled with anxiety attending school due to the large setting. Y has Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD) which heightens his anxiety and fear of too many people in school. She said Y was awaiting an assessment for emotionally based school avoidance. Mrs X said integrating Y into the new school was unsuccessful as he found it overwhelming, leading to anxiety and mental health challenges. She said Y had been off school 26 days.
31. The Council advised Mrs X to contact its BOSS, who it said would be in touch with the school.
32. Miss X contacted the BOSS. She said the school tried to slowly reintegrate Y, but he only managed two hours with his father, doing animal care and playing games with the Special Educational Needs Coordinator (SENCO). Y was due to go back the next day to the learning hub but shut down at home and could not do it.
33. Internal Council emails state Y needed school avoidance support, and its Education Psychologist (EP) delivers training to schools on this. The Council asked an officer from the BOSS to attend a multi-agency meeting with the school.
34. A multi-agency meeting took place 18 November 2024. This included the EP, the ASCETS, the Special Educational Needs and Disability Information and Advice Service (SENDIAS), the BOSS, WMIN, and Y’s parents. The school wanted to review Y’s SEND plan, but his parents raised concerns about Y being in school at all. The EP was to start an assessment with Y and recommended his parents look at alternative provision. Y’s parents did not feel comfortable with Y attending a mainstream school, as people are a trigger for him, impacting his ASD, ADHD and anxiety. They said school made him suicidal. They asked about a medical pupil referral unit, but were told Y needed a referral from Child and Adolescent Mental Health Services (CAMHS).
35. BOSS determined this was not a case for them, due to school avoidance issues, and the EP and ASCETS were best placed to support Y alongside SENDIAS.
36. Mrs X spoke to Y’s doctor on 24 November 2024 because school attendance was now so distressing for Y it was giving him suicidal thoughts. Y’s doctor put Mrs X in touch with an NHS mental health crisis team.
37. The Council’s education Panel decided not to issue an EHC plan on 17 January 2025. The Panel considered school could meet Y’s needs with reasonable adjustments and he did not need special educational provision.
38. Mrs X complained to the Council on 21 January 2025. She said Y had only been in school two full days since September. She met with the school, BOSS, ASCETS, and the EP. They put adjustments in place but to no use. Y cannot cope with mainstream school. Mrs X involved the crisis team as Y’s mental health suffers when pressured to go to school. Mrs X said Y is entitled to alternative provision due to his health needs and it is down to the Council to provide this.
39. The Council responded to Mrs X’s complaint on 5 February 2025. It said:
• The Education Act does recognise the Council has a duty to provide alternative education for reasons of exclusion, illness or other, but this is in specific circumstances and does not apply in Y’s case.
• For illness and anxiety, the school is responsible for referring a pupil for more support where it has concerns the pupil cannot access school full time. The school can refer into inclusion panels for specific placements, with support of CAMHS, to help with anxiety and health.
• It considers mainstream school is still a suitable offer and it does not take parental referrals for alternative provision. Where a pupil needs more support, the school should request alternative provision and show evidence of need based on the graduated approach, including other services in their planning and support.
• It would recommend the school seeks advice from the EP, CAMHS, attendance services and the BOSS where suitable.
• It asked the BOSS to reach out to the school so it can offer support.
40. Mrs X said it was the Council’s responsibility to provide alternative provision due to Y’s illness. She said the Council’s response was the same as it was a few months ago and they had already had outreach teams in, but this was a waste of time. She said the EP agreed other provision would be suitable.
41. Council internal emails confirm the BOSS contacted the EP about Mrs X’s complaint. The EP was trying to arrange a meeting with Mrs X, the school, and ASCETS to set out a long-term plan with clear steps for Y’s re-integration. Y started attending school before Christmas, but the school tried to move things too quickly. Y had not been in school since Christmas but attended a virtual session with a key worker on Wednesdays. The EP’s recommendation was for the school to build time, and give Y work to do at home linked to his interests. Mrs X did not like the idea of schoolwork at home, as this was Y’s safe space.
42. The EP’s view was Y needed someone, such as Mrs X, to say “we can do this together”. When Y had been in school, he was fine, chatty and friendly. The EP felt school needed to be more realistic about how quickly the situation would change. And Mrs X had a heightened view of Y’s level of need, so it was difficult with conflicts of opinion.
43. The Council told Mrs X it was the school’s responsibility to educate Y until a medical professional judges it is not suitable for Y to attend school. At this point the CAMHS worker can make a referral to the medical pupil referral unit. It suggested Mrs X go through the school’s complaints procedure if she had a complaint about the education the school was providing to Y.
44. Mrs X had a meeting with the school on 14 February 2025 and asked if they told the Council Y had more than 15 days absence. The school said the EP is from the Council and they send an attendance register stating Y has been off due to illness.
45. After mediation, the Council agreed to re-assess Y for an EHC plan. However, it identified Y lives in Nottinghamshire so transferred the assessment to the relevant local authority on 20 May 2025.

My investigation

46. Mrs X told me Y started secondary school in September 2024 but only managed two days before he could not attend due to anxiety. Y had no alternative provision since September 2024.
47. Mrs X wrote to the Council’s director of children’s services, but was told the Council does not do parental referrals.
48. Mrs X sent medical evidence from the NHS crisis team to the Council and the school. The school ignored the evidence and recorded Y’s absence as unauthorised.
49. Mrs X told me she had meetings with the school about alternative provision, but none was provided. The Council told her to access support from the school, but this was not possible as she could not get Y into school.
50. The school has a Special Educational Needs hub, and gave Y an early leave pass so they could go there.
51. Mrs X said they managed to get Y to attend school for 30 minutes a week at one point, but this was doing things like playing football, and was not education. She said there were two graduated exposure plans, but both failed. The education psychologist came up with a plan for Y to attend school without other students, but the school then put Y in a cooking class with other students without telling Mrs X.
52. Mrs X said the school did not put any home working or online tutoring in place. Mrs X funded a private tutor once a week for an hour which Y had for three or four months.
53. The Council told me the school had been working on Y’s gradual return with structured support and ongoing monitoring and encouragement. It held regular three weekly review meetings to assess progress.
54. The Council also said the school had been working closely with the EP, ASCETS and WMIM.
55. There was a plan in place and Y was on the second step of the plan, attending school with a chosen adult for 30 minutes a week. The plan was to increase this to two 30 minutes attendances a week and increase the number of adults Y interacts with.

Analysis

56. The law is clear that councils must intervene and provide education if a school cannot make suitable educational provision for a child who is missing education through exclusion, illness or otherwise.
57. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This means once the Council was alerted to Y's absence it needed to consider its legal duties and act where appropriate.
58. The Council said it does not take parental referrals for alternative provision. That was fault.
59. The guidance envisages schools will make councils aware when a child has been, or is likely to be, absent for 15 days. However, nothing in the law or guidance states a request for alternative provision must come from the school and cannot come from parents. The Council’s duty to consider whether to provide alternative provision starts when it is alerted a pupil has missed 15 days of school. That is regardless of where the alert comes from.
60. The Council also said it was the school’s responsibility to educate Y until a medical professional judges it is not suitable for Y to attend school. That was also fault.
61. The guidance makes clear that medical evidence is not a necessity when councils consider their duty to provide alternative provision. They must not act inflexibly and must decide based on all the available evidence.
62. The Council needed to consider whether Y was receiving a suitable education, and whether this education was “reasonably available and accessible” to him.
63. The Council told us the school was working on Y’s gradual return with structured support and ongoing monitoring and encouragement.
64. I found the Council asked its BOSS to liaise with the school and professionals working with Y, including the EP. I found the Council based its decision on the suitability of Y’s education on the feedback it received from school and the EP about the support in place to help Y engage.
65. I therefore do not consider the Council’s fault in the advice it gave Mrs X caused injustice to Y. This is because, on balance, I consider it likely the Council’s decision would have remained the same. I consider it is likely the Council would have decided the education was available and accessible to Y and it therefore did not have a Section 19 duty to make alternative provision.
66. That is because, despite Mrs X’s medical evidence, there is evidence the school was trying strategies to re-integrate Y and make the education accessible. The school and the EP supported this approach, and they were aware of Y’s circumstances and Mrs X’s views. The Council could therefore only say the education was not accessible if all strategies had been attempted and had failed. But that was not the case when Mrs X requested alternative provision.
67. The Council was therefore entitled to decide Y could access education. And while I found the Council at fault for the advice it gave Mrs X and the way it explained its decision, I cannot ultimately challenge its professional judgement.
68. I appreciate Mrs X disagrees with this view and considered mainstream school was damaging for Y. It is not my role to give a view on this, and the Council was entitled to follow the views of the school and of professionals involved in supporting Y. 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.
69. When the Council agreed to reassess Y for an EHC plan it realised he lived outside the Council’s area. This meant another local authority was responsible for carrying out the EHC needs assessment and also considering whether to provide alternative provision.

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Recommended Action

70. Within four weeks of my final decision the Council should review Y’s case, and its responses to Mrs X, alongside the Ombudsman’s guidance to councils Out of school, out of sight? published July 2022. It should then provide refresher training to relevant staff on the Council’s section 19 duties under the Education Act 1996 and the Statutory Guidance.
71. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

72. I found the Council was at fault for the advice it gave Mrs X and the way it explained its decision. However, I did not find this caused significant injustice to Y as the fault did not affect the Council’s decision.

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Investigator's decision on behalf of the Ombudsman