The Investigation

The complaint

1. Mrs X complained that the Council delayed arranging alternative educational provision as agreed after her child, Y, was unable to attend school. Mrs X said this caused her distress, frustration and uncertainty about Y’s education.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

3. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance

4. 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.

5. 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)

6. 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) Another case (R(R) v Kent County Council [2007] EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question…”

What we have and have not investigated

7. 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). Some of Mrs X’s complaint is late as she says the Council delayed implementing alternative educational provision from September 2023 but she did not come to us until February 2025.

8. Mrs X’s complaint about matters between September 2023 and January 2024 is late. It was reasonable for Mrs X to complain to us earlier and there is no good reason to investigate those matters now. We have investigated matters between February 2024 and March 2025.

How we considered this complaint

9. We have produced this report following the examination of relevant files and documents and interviews with the complainant.

10. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

Background information

11. Mrs X has a child, Y, who has Special Educational Needs. Y is of secondary school age and part-way through their GCSE qualifications. Y has not attended school since September 2022 but remained on roll there.

12. Mrs X made a complaint to us in March 2023 about the Council’s handling of Y’s education for the 2022-2023 school year. In August 2023, we issued a final decision finding the Council at fault for failing to provide suitable alternative educational provision for two and a half terms during the 2022-2023 school year. Within one month of that final decision the Council agreed to:

• pay Mrs X £4,000 for the Council’s failure to provide suitable alternative provision for Y which caused missed education.

• ensure Y started to receive the alternative provision and reintegration programme.

13. Y should have received the alternative provision at the start of the new school year, September 2023. The alternative provision agreed was the purchase of some specialist equipment. The equipment would allow Y to interact with their class while learning from home.

What happened

14. In October 2024, Mrs X made a stage one complaint as the Council had still not put the alternative provision in place. Mrs X said Y had now missed another year of education and they were entering their GCSE years without any education or support.

15. In November 2024, the Council issued a stage one complaint response upholding the complaint. It accepted the alternative provision should have been in place in September 2023 following the Ombudsman decision. It attributed the delays to IT security restrictions for the specialist equipment. The Council said it could not provide a clear timeframe for the availability and use of the equipment due to compatibility issues with the IT requirements. The Council made a further offer of a bespoke alternative education package for Y to prepare for their GCSEs (provider B). The Council also offered Mrs X a further £4,000 as Y had missed another year of education because of the Council’s failure to provide alternative provision.

16. The Council records show it emailed Y’s school at the end of September 2024 advising it needed to make a referral to provider B and then the provider would give Y a placement as soon as possible. The Council provided records showing it chased the school to make the referral on at least nine occasions.

17. Mrs X remained dissatisfied and requested her complaint be considered at stage two.

18. In December 2024, the Council issued a stage two complaint response reiterating that the equipment was now not a suitable option, and it had put in alternative arrangements to replace this. It said that Y could access the new bespoke package from home with support from provider B.

19. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us as there was still no alternative provision in place.

20. The school made the referral to provider B at the start of January 2025. Following this, Y started their placement at provider B at the end of March 2025.

Conclusions

21. The Council identified, prior to the start of this investigation, that it owed Y an alternative provision under the section 19 duty. Following our final decision issued in August 2023, the Council should have put alternative provision in place for Y the following month which was the start of the next school year. It should therefore have been in place prior to February 2024 which is the starting point of this investigation. When it became clear the specialist equipment would not be available, it should have promptly put in place other alternative provision whilst it investigated the suitability of the equipment.

22. It did not attempt to put anything further in place for Y until September 2024 when it asked the school to make a referral to provider B. The Council asked the school to do this on at least nine occasions. However, we would expect the Council to have put alternative provision in place itself when the school had not made the referral by the end of the half term, a month later.

23. The Council allowed the matter to drift without meaningful progression for 13 months which was fault. This meant Y received no suitable education for three school terms since the start of our investigation, and following our previous finding of the same fault, one and a half of which were during a GCSE year. This has also caused Mrs X distress, frustration and uncertainty. If Mrs X has any concerns about the suitability of the current package implemented in March 2025, she can raise a new complaint with the Council.

24. The Council in its complaint response accepted fault and proposed a financial remedy of £4,000. However, we are not satisfied this is sufficient to remedy the injustice caused. This is due to the continuing fault and the impact caused by the length of time Y has been out of education which has spanned across a significant exam year. We have made further recommendations to remedy the injustice caused to Y and Mrs X and to prevent a recurrence of the same fault in the future.

25. We are concerned this case reflects a wider governance issue. The Council failed to do anything meaningful to ensure Y received alternative provision for an extended period, despite the previous Ombudsman recommendation. There appears to have been no oversight of the case and no urgency to ensure the provision needed was actually put in place.

Action

26. To remedy the injustice caused, within one month of this report the Council has agreed to:

• apologise to Mrs X to recognise the distress, frustration and uncertainty caused by its delay in arranging alternative educational provision for Y and for the three terms of education Y missed from February 2024 until March 2025. We publish guidance on remedies which sets out our expectations for how the Council should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology we have recommended.

• increase the financial remedy offered and pay a total of £5,900 to recognise the impact caused by Y’s missed educational provision between February 2024 and July 2024, and October 2024 and March 2025. This includes the £4,000 the Council already offered, if this has not yet been paid.

27. Within three months of this report the Council has agreed to:

• review its process to ensure it maintains oversight where it relies on schools to arrange its alternative provision, and takes timely action when a school does not arrange the provision or the provision planned cannot be put in place.

28. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

Decision

29. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and her child Y. The Council has agreed to take the action identified in par

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