Summary: The Council was at fault for not considering if it owed a section 19 duty to secure suitable alternative education for Miss X’s child (Y) after they stopped attending school. The Council has agreed to apologise and make a symbolic payment to remedy the distress, frustration and uncertainty caused.

The complaint

1. Miss X complained the Council failed to consider its section 19 duty and provide her child (Y) with alternative educational provision after they stopped attending school. Miss X said this caused her distress, frustration and uncertainty as Y went without a suitable education.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. Under our information sharing agreement, we will share this decision statement with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I 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).
8. Some of Miss X’s complaint is late. She said Y has not received a suitable education since 2022 but did not come to us until March 2025. There is no evidence Miss X could not have complained to us earlier about events before March 2024 and no good reasons to exercise discretion to go back further than 12 months. Therefore, I have investigated from March 2024.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
11. Y was on roll at mainstream school A in March 2024. Miss X said the school was unsuitable so Y was not attending. In October 2024, the Council issued a final Education, Health and Care (EHC) Plan naming school A. I cannot investigate anything past this point. Doing so would involve looking at the Council’s decision to name the same school and therefore trespassing on the Tribunal’s jurisdiction. If Miss X was unhappy with the Council maintaining school A as Y’s placement, it was reasonable for her to appeal this to the tribunal.

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How I considered this complaint

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

14. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Section 19 duty

15. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
16. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
17. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

18. 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

19. Miss X has a child, Y who has special educational needs. In March 2024, Y was on roll at a mainstream school, school A but Y was not attending.
20. In May 2024, the records show Miss X requested an EHC needs assessment which the Council agreed to. The school also put in place a reintegration plan which it recorded as unsuccessful.
21. In September 2024, Y received a four-week period of online learning but the records show they struggled with this due to significant gaps in their learning.
22. The Council issued Y’s final EHC Plan in October 2024 naming school A. If Mrs X disagreed with the placement named, it was reasonable for her to have lodged an appeal with the tribunal.
23. In February 2025, Miss X complained the Council had failed to provide Y with a suitable education after they stopped attending school.
24. The Council issued a final complaint response in May 2025 which said the following:
• It recognised it had limited oversight and apologised for this;
• Given the considerable amount of work undertaken by the school, it could not say that if it had properly overseen the situation, then it would have provided Y with a different educational offer; and
• It recognises there is some uncertainty over whether the Council may have provided something else had it been more actively involved.
25. Miss X remained dissatisfied with the matter and complained to us.

Council’s response to our enquiries

26. The Council said it was aware in January 2024 Y was not attending school. It said it is unable to provide any records from that time showing how it considered whether it owed Y a section 19 duty.
27. The Council said it has made progress in reviewing policies and procedures, including those relating to Section 19. However, it has not provided any detail or evidence around how it has improved its section 19 duty decision-making and recording keeping.

My findings

Section 19 duty

28. The Council was aware in January 2024 that Y was not attending school. By March 2024, which was the start point of this investigation, the Council should have considered the reasons for Y’s absence from school and made a written evidence-based decision about whether it had a section 19 duty and needed to arrange alternative educational provision. There is no record it did so. Therefore on balance it likely did not which was fault, as was the lack of record keeping.
29. The Council said the school has undertaken a considerable amount of work with Y. However, between March-October 2024, Y only had access to four weeks of online tutoring. However, even if the Council had properly overseen the situation I cannot say it would likely have acted different to put in place additional provision.
30. The faults identified therefore caused Miss X distress, frustration and uncertainty for six months about whether the Council owed a section 19 duty to Y and what educational provision Y was entitled to.

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Action

31. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the distress, frustration and uncertainty caused by the Council’s 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 should consider this guidance in making the apology I have recommended in my findings.
2. Pay Miss X £300 for the distress, frustration and uncertainty caused by the Council’s failure to consider whether it owed Y a section 19 duty.
32. Within three months of the final decision, the Council has agreed to:
1. Create an action plan to demonstrate how it will ensure the Council makes and stores clear and accurate records of section 19 decision making for children out of school.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman