Summary: Mrs X complained that the Council failed to meet its Section 19 duty to ensure her daughter, K, received suitable education when she was unable to attend school due to anxiety. We find that the Council failed to properly consider its duty to provide alternative education for K, which resulted in K not receiving sufficient education. The Council has agreed to make a payment and apologise to Mrs X and K.

The complaint

1. Mrs X complains that the Council failed to meet its Section 19 duty to make alternative educational provision for her daughter, K, when she was unable to attend school due to anxiety. She says that K did not receive full-time education between September 2019 and July 2024 and, as a result, her education and welfare have suffered.

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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. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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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What I have and have not investigated

8. Mrs X made complaints to the Council in June 2024, November 2024 and February 2025. She received a final response from the Council in March 2025 and contacted us shortly afterwards. As explained in paragraph three above, we cannot normally investigate matters that a complainant has known about for more than 12 months. I have exercised discretion to investigate events since September 2023. I have not investigated earlier matters as I consider it would have been reasonable for Mrs X to complain about them sooner.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council have 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 government guidance

11. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
12. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. 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)
16. Councils should begin the process of arranging suitable alternative provision as soon as it is clear an absence will last more than 15 days. (Arranging Alternative Provision)
17. 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.

Background and key events

18. Mrs X’s daughter, K, experiences anxiety and struggled to attend secondary school.
19. In July 2023, when K was 15 years old and in Year 10, the Council’s Inclusion Team met with Mrs X and the school’s Special Educational Needs Coordinator (SENCO). It was agreed that from September 2023, K would attend work experience three days per week, and attend school on the other two days, with a view to gradually increasing her hours in school.
20. In August 2023, Mrs X asked the Council to carry out an Education, Health and Care Needs Assessment (EHCNA).
21. In October 2023, an officer from the Council’s SEND team contacted the school to ask about the amount of education K was receiving. The school provided a copy of her timetable and attendance record. It showed that K had been attending work experience once or twice a week for a few hours, and that she had been into school on three occasions for meetings with her mentor or art teacher.
22. In January 2024, an officer from the Council’s Inclusion Team contacted the school for an update. The school advised that K had started to have online lessons in Maths and English for 40 minutes, four days a week. K was no longer attending work experience and was only going into school to meet her art teacher.
23. In March 2024, after initially refusing to carry out an EHCNA, the Council agreed to issue an EHC Plan. A final Plan was issued in June 2024.
24. K started attending college in September 2024.

Analysis

25. Under Section 19 of the Education Act 1996, councils must arrange suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, would not receive suitable education without such arrangements. Suitable education should be full-time (unless a child’s health means full-time would not be in their best interests), and appropriate to the child’s age, ability, aptitude and any special educational needs.
26. Councils are not required to intervene where a child is able to attend school with support, or where a school is making suitable alternative arrangements. However, councils should be able to demonstrate that they have objectively considered whether the education available to the child is suitable. I am satisfied that, at the time the plan was put in place in July 2023, the Council considered the school would be arranging suitable education for K from September 2023.
27. Councils should regularly review the provision offered to ensure it continues to be appropriate for the child. The duty under Section 19 is triggered when the council knows, or ought reasonably to know, that suitable education is not reasonably available and accessible to the child.
28. By October 2023, the Council was aware that K was not attending school or work experience as planned. She was attending work experience one or two days per week for a few hours and had attended school on only three occasions, limited to meetings with her mentor or art teacher. She was not receiving any lessons in Maths or English, which were particularly important as she was taking GCSEs that year. There is no evidence to show that the Council considered at that stage whether this amounted to suitable education, or whether it was required to arrange additional education under Section 19. This was fault. Had the Council properly considered the matter, it would likely have taken action to ensure K received some tuition in English and Maths.
29. By January 2024, the Council knew K was no longer attending work experience and was only receiving online Maths and English tuition for two hours and forty minutes each week, alongside fortnightly meetings with her art teacher. There is no evidence of medical advice indicating that full-time or increased provision would have been contrary to K’s health needs. Nor is there evidence of a structured reintegration plan setting out how provision would increase to full-time education within a reasonable period.
30. I have seen no records demonstrating that the Council considered whether this level of provision was suitable, or whether it was required to arrange additional education under Section 19. The absence of such records is fault, as councils are expected to maintain clear records of their decision-making. In the absence of evidence to the contrary, I find on the balance of probabilities that the Council did not properly consider its Section 19 duty at that time. This was fault.
31. Had the Council properly considered the matter in January 2024, I consider it unlikely that it would have concluded that two hours and forty minutes of education per week constituted suitable education. While a reduced timetable may be appropriate for a temporary period where supported by evidence and accompanied by a clear plan to increase provision, there is no evidence of such justification here.
32. On the balance of probabilities, had the Council discharged its Section 19 duty properly, I consider it would have concluded that insufficient education was reasonably available and accessible to K and it would have arranged additional alternative provision.

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Action

33. The Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to Mrs X and K. 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 when making the apology.
• Pay Mrs X £3400, on behalf of K, to recognise the injustice caused to them by the Council failing to arrange suitable education for K when she could not attend school. I have considered our guidance and the specific circumstances in this case when determining the appropriate remedy.
34. The Council should provide us with evidence it has complied with the above actions.
35. The Council says it has made improvements to its service. It has completed a restructure, produced a Section 19 policy and created new job roles. The Council sent us evidence of its new Section 19 procedures following a recent investigation of a similar complaint. I have therefore not made any further service improvement recommendations.

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Decision

36. I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman