Summary: Miss X complained the Council failed to provide education to her child Y. She also complained the Council failed to name a specialist education provider in Y’s Education Health and Care (EHC) Plan. Miss X says this caused Y to miss education and impacted Miss X financially. The Council was at fault. It did not provide education for Y. The Council has agreed to apologise and make a financial payment.

The complaint

1. Miss X complained the Council failed to provide education for her child Y while Y was out of school and failed to name a specialist education provider in Y’s EHC plan. Miss X said this caused Y to miss education and impacted Miss X financially.

Back to top

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. 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

6. I have not investigated Miss X’s complaint the Council failed to name a school in Y’s EHC Plan. Miss X has appealed this matter to the First-Tier Tribunal (Special Educational Needs and Disability) and it is out of our jurisdiction

Back to top

How I considered this complaint

7. I read Miss X’s complaint and spoke to her about it on the phone.
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 received before making a final decision.

Back to top

What I found

Background Information

10. 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.
11. 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)
12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established 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).
13. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).  
14. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
15. 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. 
16. The EHC Plan is set out in sections which include: 
• Section B: Special Educational Needs
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of educational placement 
17. We cannot investigate events after an appeal to the Tribunal. This is because the courts have established 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)
18. This means 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.
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parent or young person. If the parent or young person appeals then the period we cannot investigate ends when the Tribunal makes its decision or the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales for amending the plan.

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. In January 2024 Miss X asked the Council to complete an EHC needs assessment of Y.
22. In March 2024 the Council decided not to complete an EHC needs assessment.
23. In March 2024 the Council offered Y a place in a secondary school to start in September 2024
24. In April 2024 Miss X asked the Council to remove Y’s name from the register of the secondary school it offered to Y. The Council asked Miss X to explain what arrangements she was making for Y’s education from September 2024. Miss X said she did not want to accept the school placement. The response did not confirm what arrangements Miss X was making for Y's education. The Council withdrew the school placement offer.
25. Miss X appealed to the Tribunal in April 2024. She appealed against the Council’s decision not to carry out an EHC needs assessment of Y.
26. The Tribunal issued its decision in September 2024. The Tribunal said the Council should carry out an EHC needs assessment of Y.
27. In October 2024 the Council identified Y was not attending school. The Council’s records said Miss X was home educating Y. The Council contacted Miss X. She told the Council she was not electively home educating Y and Y was not in school for safeguarding reasons.
28. The Council decided not to take action against Y’s non-attendance at school because it was completing an EHC needs assessment for Y.
29. Miss X complained to the Council in January 2025. She complained she was having to home educate Y because the Council had not named a suitable school placement. She asked the Council to help meet costs she was having to pay to educate Y.
30. The Council responded to Miss X’s complaint a week later. The Council said it could not process her complaint because she had a right of appeal if she disagreed with the final EHC Plan.
31. The Council issued Y’s final EHC Plan the following day. Section I of the plan said Y needed a specialist school. It did not name a specific school.
32. Miss X appealed to the Tribunal in February 2025 against the Council’s decision not to name a school in Y’s EHC Plan.
33. In March 2025, the Council refused Miss X’s request for funding. The Panel agreed to provide home-based education support until it found Y a suitable school.
34. Miss X was not satisfied with the Council’s response to her complaint and its decision not to fund Y’s education. She complained again in March 2025.
35. The Council issued its Stage 2 complaint response in April 2025. The Council did not uphold Miss X’s complaint and repeated it would not fund Y’s education.
36. Miss X was not satisfied with the Council’s response and would like the Ombudsman to investigate. Miss X would like the Council to meet the costs of educating Y at home.
37. In response to my enquiries, the Council said it had incorrectly recorded Miss X as electively home educating Y. The Council said the mistake meant it took no action to arrange suitable education for Y from September 2024 to January 2025.

My findings

38. The law, referenced in paragraph 14, requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council knew Miss X refused a school place for Y in April 2024. It also knew Miss X had not said how Y would be educated from September 2024. The Council should have gathered information to decide if it owed Y a section 19 duty and if so if it should provide alternative education from September 2024. The Council did not do so. This is fault.
39. The Council also knew Y was not in school in October 2024. It knew Miss X was not electively home educating Y. This was a further opportunity for the Council to consider if a section 19 duty applied. . Again, the Council failed to consider its duties. . This is fault.
40. Paragraphs 17 to 19 say I cannot usually investigate events after someone has an appeal right to the Tribunal. The Council issued a final EHC Plan in January 2025. Miss X used her right of appeal. Therefore, I cannot investigate events after January 2025.
41. The Council accepted it failed to arrange suitable education for Y from September 2024 to January 2025. Y missed an academic term of education. I have recommended a payment of £1200 in line with our guidance on remedies for injustice caused by missed education provision and the consequent impact on Miss X having additional responsibilities as a result.
42. Following previous investigations, the Council has explained the steps it is taking to ensure it properly considers alternative provision for children not in education. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

Back to top

Action

43. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:

• Apologise to Miss X for the failure to provide suitable education for Y. We publish guidance on remedies which sets out our expectations to remedy injustice. The organisation should consider this guidance in making the apology.
• Pay £1200 to Miss X for not providing education for Y for one academic term. This money should be used for Y’s benefit.

44. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

45. I have completed my investigation. I have found fault by the Council which caused injustice to Miss X and Y.

Back to top

Investigator's decision on behalf of the Ombudsman