Summary: Miss X complained the Council failed to provide her daughter with a suitable education when she stopped attending school. We found fault in the Council’s communication with Miss X which caused her avoidable anxiety and frustration. The Council agreed to apologise and make a symbolic payment to Miss X.

The complaint

1. The complainant, Miss X, complains the Council failed to provide her daughter, Z, with a suitable education from November 2023 when she stopped attending school.
2. Miss X says, because of the Council’s failures, Z has barely accessed education since November 2023. This has impacted the type of educational provision Z may be able to access going forward and affected her well-being and their family life.

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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. 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)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
6. 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)
7. 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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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. 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

Children out of school and alternative provision

10. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
11. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
12. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
14. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
15. 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)
16. 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])

Part-time timetables

17. The DfE 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. 
18. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
19. 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. 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.

20. 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

21. The following is a summary of key events. It does not include everything that happened.
22. Miss X’s daughter, Z, was attending a mainstream primary school (the school) in Year 2.
23. The school contacted the Council on 20 November 2023 with concerns about Z’s school attendance. This followed a home visit the previous week from the Education and Welfare Officer (EWO). It was noted Z had not attended school since 26 October and Miss X had reported Z was in ‘burn out’ mode. It was further noted Z had a 100% attendance in the first half of the term although there had been previous attendance concerns. It was also noted that Z had been referred to Child and Adolescent Mental Health Services (CAMHS) by her GP but did not meet the threshold. It was confirmed that Z’s parents were providing regular updates and had explained Z would not get dressed and presented with emotional distress. The school advised they were happy with Z’s progress in September and were working with her parents to adapt school clothing due to Z’s sensory needs. The school sought some further support to understand Z’s needs to best support her in school.
24. There were several home visits by the EWO during the period October to December 2023. It was recorded that the school had not received any letters with medical evidence as to why Z could not attend school.
25. The Council has explained that decisions regarding Z’s provision were considered through a triage panel (TESSA), which is a multi-disciplinary forum involving health, education, and social care professionals. Decisions are made on a case-by-case basis, based on the information provided by the school, parents, and professionals, as well as records held by the Council.
26. Following the school’s contact on 20 November the Council made a referral to the TESSA triage panel the same day. This noted Z was currently on the neurodevelopmental pathway for assessment and awaiting a development paediatrician appointment/report. Strategies to support Z in school with learning and inclusion were sought to improve attendance. This referral was signed by Miss X on 20 November.
27. The Council provided a TESSA Plan to the school on 18 December which set out various actions.
28. The school received an Occupational Therapy (OT) report on 12 January 2024. The report recommended that Z may benefit from 1:1 support within the classroom, a sensory diet at school and various strategies that could be used both at school and home.
29. A private educational psychologist assessment was arranged by the school on 17 January. This recommended consideration of an education, health and care plan (EHCP) with an increased prospect of a need to consider specialist schooling.
30. A multi-agency meeting was held on 18 January which Miss X attended. Miss X suggested a full time timetable would not be productive and Z needed specialist provision although Z may not do well due to pathological demand avoidance (PDA) and dealing with the expectations at specialist provision. Miss X set out that Z did not want to go to any school. The timescales for an EHCP were highlighted and that a plan was needed for the interim period to support Z with some form of education. It was noted Z would need to be slowly reintegrated. Miss X asked about the Council providing education as Z had been absent for more than 15 days. The Council’s section 19 duties were acknowledged but that currently responsibility lay with the school.
31. There were meetings during January in which the school stated it could meet Z’s needs but Miss X did not agree. It was noted that illness was initially reported after the October half term but despite referrals nothing had been identified. The school further noted that Miss X had stated it was on GP advice that Z should not attend school but the GP advised this was not the case when contacted.
32. A review meeting of Z’s reduced timetable was held on 28 January. It was explained that section 19 was not granted due to a lack of medical evidence. The family highlighted that Z was struggling and the timetable was not working as Z had not been able to engage with her timetable. At a TESSA meeting on 29 January Miss X mentioned education other than at school (EOTAS) and it was noted there was no medical diagnosis. This meeting recorded the view that a tutor would be ‘too much’ for Z.
33. The school provided an update on 13 February. The school had been supplying work to be completed at home and weekly visits by a teacher. The document set out details of the efforts to support Z in school.
34. At a meeting held at the school on 22 February it was noted Z was now rejecting visitors at home. There was a discussion about being submissive to Z and the parental view of PDA. It was noted Z was attending morning forest school sessions and the parents were considering home schooling. It was recorded that the reduced timetable was being regularly reviewed and the parents were happy with the process and considered the forest school was of benefit to Z. Professional advice was given to challenge emotionally based school avoidance (EBSA) as taking away anxiety by non-attendance was not helping Z deal with the anxiety and it was important to build resilience. The parental view was that Z would be less anxious at a specialist setting. There was a note that Section 19 advice was to be sought.
35. There were further meetings during March and April. Miss X was advised at a meeting on 22 April that it would be difficult to progress a EHCP request as Z would need to be observed in a school setting and so an application would not be accepted. The Council accepted in its Stage 2 complaint response of 7 February 2025 that this advice was not accurate. The Council confirmed that although the school would have had difficulty in providing some of the evidence needed which would have impacted the overall quality of an application, it was not a barrier to an application to an EHCP needs assessment taking place. The Council apologised for providing Miss X with misleading information on this point and noted this would have caused her some additional time and trouble. The Council noted it had subsequently accepted such an application towards the end of May 2024.
36. There was a multi- agency review and timetable review meeting at the school on 4 June. This noted Z was attending and enjoying the forest school sessions. Z had also attended an orienteering session and virtual reality session. The timetable was shared and it was discussed how best to increase the offer to Z. There was no feedback on section 19 as the relevant officer was not at the meeting and this was noted as an action for the next meeting.
37. The school contacted the Council on 6 June about the parental request for section 19 provision for Z. This noted EBSA and that Z had been refusing to attend school from October 2023. The school noted it had worked hard to explore all options to ensure Z’s needs were met and set out what had been offered. This included an offer of staff to tutor Z but this was declined as Z was not happy when visitors come to the family home. This was being considered again as the school had offered an hour a week by a named person. The matter was discussed at panel on 10 June with a plan emailed to the school on 20 June.
38. There was a multi-agency review meeting and review of the timetable on 16 July. This followed a visit to the forest school on 3 July. It was agreed Z would continue to attend forest school with a transition plan to encourage Z’s attendance in Year 3. Miss X stated she was unhappy with what had previously been offered as she considered it was too much too soon and had left Z feeling overloaded. It was explained the reduced timetable needed to increase what was on offer to Z with no expectation that Z would have to attend all sessions but it was designed to build up to what Z was able to do over the period. There was a discussion of the observation at forest school held on 3 July. It was noted there were two approaches – one was to take away the thing causing the child distress but this may mean they struggled to build resilience or alternatively to ride through the difficult times so the child started to learn skills needed to negotiate difficulties. Z was not the only child that may become overwhelmed and lash out at school but this was managed and supported by the school for Z as for others. Miss X strongly disagreed with this approach. There was a discussion of the outstanding action of seeking advice about section 19 provision. It was confirmed this would not be provided if the school could meet need as previously advised. It was noted that with the reduced timetable in place and the adjustments the school had made it was considered they were meeting Z’s need. Miss X questioned the initial period when nothing was done. It was noted the school had made offers from the start but not all of which Z was able to accept. It was considered there was nothing at that time the school or Council could have offered that Z would have been able to accept. Miss X stated she did not want Z to continue at her current school and her view that whatever placement was agreed in future Z would not be able to tolerate full time provision. Miss X considered child led learning at a specialist placement would suit Z better. This was noted but while they were waiting for the outcome of the EHCP process there needed to be a plan for Z for September. There was a discussion about what subjects Z may be able to access and Miss X suggested PE, Art, sewing, crochet, DT, forest school and choir. This would be included in the next timetable.
39. Miss X made a formal complaint on 17 October. The Council responded to Miss X’s complaint on 12 November. This response set out the Council’s view that a suitable education was available to Z. The Council set out the process for considering a section 19 request and asked Miss X to provide medical evidence that Z was too unwell to attend school and it would consider this. The Council confirmed because of Miss X’s complaint it would provide more comprehensive training on section 19 for its EWOs.
40. The Council received a referral request on 9 December for section 19 provision. The Council acknowledged the request but confirmed that as Z’s attendance was being coded as ‘C’ (other circumstances) and there was no medical evidence stating Z was not well enough to attend school it would not agree section 19. The Council explained there was no evidence the school could not meet Z’s needs.
41. Z’s GP wrote a letter of support dated 8 January 2025 for receiving section 19 alternative provision. This set out that Z had been suffering from increased anxiety and difficulty in attending school since November 2023. The letter noted Z was still under the Neurodevelopmental Pathway and the consultant community paediatrician had noted Z had social communication difficulty, poor social skills, aggression and emotional dysregulation but was awaiting a final discussion with the Neurodevelopmental team. The GP set out their view that Z would benefit from having an alternative education. The Council reviewed the GP letter but noted it did not detail any medical needs.
42. The school advised the Council in January 2025 that it had exhausted all the available interventions to engage Z in attending school and were no longer able to meet her needs. A panel meeting held on 20 January recorded this outcome and agreed a placement for Z at school B (which was the parental preference) from September 2025.
43. The Council issued a final EHCP for Z at the end of January. This named school B and Z went on its roll from January 2025.
44. The Council issued a response to Miss X’s escalated complaint on 7 February. This noted the school had believed it could meet Z’s needs and a flexible timetable had been put in place with the offer of a home tutor and art therapy sessions. There was no evidence provided at the time to suggest the absence was due to a medical need.
45. Miss X brought her complaint to the Ombudsman in March.

Council response

46. The Council has confirmed that from 6 November 2023, the majority of Z’s absences were recorded using the ‘C’ code, which denotes Authorised Absence – Other Circumstances. Prior to this date, Z had achieved 100% attendance during the first half of the autumn term.
47. The Council stated that no alternative provision was arranged initially as the school advised it was able to meet Z’s needs. Z remained on the role of her mainstream school between November 2023 to January 2025.
48. Z was placed on a part-time timetable, agreed through the TESSA triage panel, with parental consent. This arrangement was designed to support Z’s gradual reintegration into full-time education. The Council confirmed the school worked collaboratively with it and relevant professionals to provide support aimed at improving attendance and addressing Z’s individual needs.
49. Miss X contacted the Council on 17 October 2024 to express dissatisfaction at the provision being delivered to Z. The Council processed this as a formal Stage 1 complaint. An action in light of the Stage 1 complaint was to provide Education Welfare Staff with Section 19 training to support with their knowledge and understanding.
50. The Council acknowledged receipt of a section 19 request on 9 December 2024. The Council says that as Z’s attendance was being recorded under ‘C’ code (Authorised Absence – Other Circumstances) and there was a lack of medical evidence confirming Z was unable to attend school it determined the section 19 duty did not apply.
51. The Council says it considered the following evidence when determining the section 19 duty did not apply:

• Attendance Record – Z’s attendance data as recorded by the school and reflected in the Council’s system.
• Information Provided by Parents - Correspondence and supporting details submitted by Miss X, including her views on Z’s ability to attend school and any barriers to attendance.
• Supporting Evidence - Documentation from the GP and other health professionals, including confirmation that Z did not meet the threshold for CAMHS intervention.
• School Reports - Information from the school regarding Z’s ability to attend and their assessment that they could continue to meet her needs.
• Professional Assessments - Notes relating to referrals for developmental pediatrics, speech and language therapy, and mental health services.

52. The amount of provision for Z during this period was determined through the TESSA triage panel. The decision that this level of provision was suitable took into account:

• Z’s age and stage of development.
• Her educational ability and identified needs.
• Professional assessments and recommendations discussed at the TESSA panel.
• The requirement for parental agreement to the proposed arrangements.
• Education, Health and Care assessment.
• School’s needs assessments

53. The Council says the above approach was intended to support Z in a structured and manageable way.
54. In January 2025 the school advised the Council it had exhausted all interventions available to them to promote positive attendance and meet Z’s needs. Z’s school advised the Council that they were unable to meet her needs.
55. The Council named school B which was the parental preference on Z’s final EHCP and Z went on its roll from 20 January 2025.

Analysis

56. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively. This means that once the Council was alerted to Z’s absence on 20 November 2023 it needed to consider its legal duties and take action where appropriate.
57. However, just because a child does not attend school does not necessarily mean the Council has a duty to make alternative, full-time arrangements. The Council needed to consider whether Z was receiving a suitable education, and whether this education was “reasonably available and accessible” to her.
58. The Council and school came up with a timetable of provision for Z to help try to reintegrate her back into school. I am satisfied the Council properly considered whether it had a duty to provide alternative education but decided it did not because of the steps Z’s school were taking and the provision on offer. While I recognise Miss X disagreed with this view, I cannot see any fault in how the Council came to this decision. There is also good evidence the provision in place for Z was being regularly reviewed with consideration of whether it was working in light of Miss X’s concerns
59. However, the Council has not provided evidence that it provided a clear explanation at the time to Miss X about its decision that the education was available and accessible to Z and it therefore did not have a Section 19 duty to make alternative provision. This is fault.
60. I note the Council provided more comprehensive training on section 19 for its EWOs as result of Miss X’s complaint. There was initial information provided to Miss X at a meeting in January 2024 about section 19 but she sought further advice in February. However, the associated action point from this meeting was not completed until a meeting in July. This was an important decision and the Council should have ensured a clear and timely explanation was provided to Miss X in writing. Miss X will have experienced avoidable anxiety and frustration in pursuing this issue with the Council for an extended period as a result. I am satisfied this caused injustice to Miss X.
61. It is not in dispute that Z had minimal education from November 2023. But I am unable to says this was because of fault by the Council. Miss X feels Z should have been receiving alternative provision. However, the Council considered what provision would be suitable for Z alongside professionals and worked with the school to offer a timetable to reflect this. I have not found fault in the Council’s actions.

62. I note the Council has already provided an apology to Miss X in its Stage 2 response dated 7 February 2025 for providing misleading information in April 2024 about whether an EHCP request would be accepted and acknowledged this would have caused Miss X additional time and trouble. It would also have introduced avoidable delay to the EHCP process although I note Miss X was able to make an application in May 2024. I consider this will have added to Miss X’s anxiety and frustration.

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Action

63. Within one month of the date of the final decision statement, the Council will:
• apologise to Miss X for its failure to provide a clear and timely explanation to her about its decision that the education was available and accessible to Z and it therefore did not have a Section 19 duty to make alternative provision; and
• pay Miss X £500 to recognise her avoidable anxiety and frustration.
64. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
65. The Council should provide us with evidence it has complied with the above actions.

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Decision

66. 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