Summary: The Council was at fault for failing to consider delivering education to Mrs X’s son while he was not attending school. It also caused significant delays in deciding his special educational needs support. These failings affected Y’s education and caused Mrs X distress. Mrs X also paid for tuition for Y for around a year when the Council did not respond to her requests for support. The Council has agreed to refund Mrs X for the tuition and will make symbolic payments to Mrs X and Y to recognise their injustice.

The complaint

1. Mrs X complains that:
• Her son, Y, stopped attending school in October 2024. The following month, she began requesting that the Council deliver alternative provision to him (because, in her view, he could not attend school because of “severe anxiety”). But, despite numerous messages and emails (and a formal complaint), she received no response from the Council.
• Because of this, Mrs X has had to pay for alternative provision herself. She has also had to pay for dyslexia and occupational therapy assessments, and for a private therapist (for Y’s anxiety).
• Over this period, the Council has also caused a significant delay in deciding Y’s special educational needs support. The process took almost two years, partly because of a delay to an educational psychology assessment.
2. Mrs X says the Council has caused Y to lose education. She says she has suffered a financial injustice from paying for tuition, and both she and Y have suffered distress.

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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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or if further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. If we are satisfied with a council’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 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. Although Mrs X reports that she paid for dyslexia and occupational therapy assessments, it is unlikely I would be able to decide whether it was necessary for her to pay for them.
8. When conducting needs assessments, councils should request reports from relevant professionals. But Mrs X obtained the reports in question before the Council had started its needs assessment.
9. It is certainly true that the Council used the reports when it eventually decided Y’s special educational needs support. But it is unlikely that I would be able to reach a view on whether Mrs X needed to pay for the reports at the time, or whether the Council would have subsequently commissioned (and paid for) its own reports. The suggestion that Mrs X commission her own dyslexia assessment was made by Y’s school, not the Council.
10. For these reasons, I have not investigated this matter.
11. I note that Mrs X has also paid for Y to receive input from a therapist. But it is unlikely I would be able to reach a view on whether this input was necessary, because it is not included in Y’s education, health and care (EHC) plan. So I have not investigated this matter either.
12. I have, however, investigated the rest of Mrs X’s complaint.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law and guidance.
14. Mrs 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

Law and guidance

15. A child or young person with special educational needs may have an EHC plan. This document sets out the child’s needs and what arrangements should be made to meet them. (Children and Families Act 2014, section 37)
16. If the council refuses to do an EHC needs assessment, the child’s parent can appeal that decision to the SEND Tribunal. (Statutory guidance, ‘The SEND code of practice’)
17. If the council concedes such an appeal, it must do the assessment. And if, following the assessment, the council goes on to issue an EHC plan, the whole process (from the council’s concession of the appeal to the plan being issued) must take no more than 14 weeks. (SEND Regulations 2014, Regulation 45)
18. Councils must arrange suitable education for children 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’ provision.
19. When a council is considering whether to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
20. If specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP”. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
21. It is up to a 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])
22. When a council arranges alternative education, this should begin as soon as possible, and no later than the sixth day of the child’s absence. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
23. Alternative education must be full-time unless the council decides this would not be in the child’s best interests for reasons of their physical or mental health. (Education Act 1996, sections 3A and 3AA)
24. The law does not define full-time education, but alternative provision should be equivalent to the education a child would receive in school. If they receive one-to-one tuition, for example, fewer hours may be needed as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
25. We have issued guidance on how we expect councils to fulfil their responsibilities to provide alternative provision. (‘Out of school, out of sight?’ published July 2022)
26. We recommend that councils:
• Consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
• Work with parents and schools to draw up plans to reintegrate children into 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.

What happened

27. In October 2024, Mrs X requested an EHC needs assessment. The Council responded in November, refusing her request.
28. In early December, Mrs X emailed the Council’s Director of Education. The email address she used was correct.
29. In a letter attached to the email, Mrs X said Y was unable to attend school “because of his severe sensory processing difficulties and Autism which is also creating severe anxiety”.
30. Mrs X asked the Council to deliver alternative educational provision, and said she believed “a reduced level of education would be in [Y’s] best interests, preferably home based”. The letter also summarised Y’s mental health issues.
31. Y’s school says he stopped attending school completely in December because of his autism and anxiety, and Mrs X “informed us she had applied for Section 19 provision [from the Council] straight away”.
32. The school says that, from January 2025 onwards, work was available for Y online and Mrs X also arranged tutoring. It also says it “kept chasing Section 19 provision - via LA/and Attendance Team”.
33. In February, Mrs X appealed to the SEND Tribunal against the Council’s decision not to conduct an EHC needs assessment. In her appeal form, which was provided to the Council, she said:

“[Y] no longer can attend school due to trauma and anxiety in the school environment. Severe panic attacks occur. Despite school providing reasonable adjustments he can not attend. He is currently learning with an online tutor but is missing a proper education.”

34. In March, Mrs X also emailed the Council’s Director of Education again and said she had not had a response to her previous request for alternative provision. She said Y had been out of school for four months.
35. Later in March, the Council conceded Mrs X’s appeal and, in early April, wrote to Mrs X and agreed to do an EHC needs assessment.
36. Later in April, Mrs X made a complaint to the Council. She said she had requested alternative provision for Y in November 2024 and had followed this up with telephone calls and emails, but had “received no response or communication [from the Council] whatsoever”.
37. Mrs X told the Council that it had failed in its statutory duty to Y under section 19 of the Education Act. She said that, as a result, she had been forced to pay for Y to receive private tuition.
38. In May, the Council exchanged correspondence with Y’s school. It said Y had been discussed at its ‘section 19 panel’ (although it has provided no evidence related to the panel). It asked the school for more information about the education Y was receiving. It also asked whether the school could meet his needs.
39. In response, Y’s school told the Council that it could not meet his needs, because:

“… he cannot attend school. We have made all reasonable adjustments that have been suggested but his attendance due to mental health and sensory needs is the biggest barrier.”

40. It said it had offered Y a reduced timetable and various other things, but “None … have worked and attendance has worsened. Online learning also provided. Regular home visits and meetings to reintegrate”.
41. In early June, the Council told Y’s school that it was working on Y’s case and would contact the school with a decision. However, the school says it did not hear back from the Council until the end of summer term, when, it says, the Council said it would not deliver alternative provision to Y because it was waiting for the outcome of his EHC needs assessment.
42. Mrs X wrote to the Council again in June and July, dissatisfied with how long its EHC needs assessment was taking, and with its lack of communication. The Council did not respond.
43. From September, Y continued to receive online work and private tuition (paid for by Mrs X). His school says it received no update from the Council about alternative provision for Y.
44. In mid-September, after receiving correspondence from Mrs X’s MP, the Council responded, acknowledging the delay to Y’s EHC needs assessment. It said Y was on the waiting list for an educational psychologist.
45. However, the Council also said:

“[Y] is on roll at … School and the school is responsible for his educational arrangements, not the Local Authority. If [Mrs X] has concerns regarding the current arrangements the school are making for [Y’s] education, she may wish to contact the school directly to discuss her concerns.”

46. In October, the Council confirmed to us that it had not responded to the complaint Mrs X had submitted in April.
47. Later in October, the Council’s educational psychologist completed their report. The Council issued a draft EHC plan in November.
48. Also in November, the Council’s attendance officer discussed Y with his school. The officer recorded that Y had anxiety and was a ‘school refuser’. They said a section 19 request had been refused by the Council, and absences were unauthorised. They said Y’s school was sending work home for him.
49. There are no records to demonstrate the Council’s decision-making on whether to deliver alternative provision to Y. But it says it did not arrange the provision because:
• He was getting education from his school.
• It would be disruptive to him to deliver alternative provision when his EHC needs assessment was ongoing (as there could have been a further change to his educational arrangements when the EHC plan was issued, if there was a change of placement).
50. In December, the Council agreed to name Y’s current school in his EHC plan (with support for the school to meet his needs).
51. Y’s school agreed to start funding Y’s tuition (which Mrs X had previously been paying for) in February 2026. The Council then issued his EHC plan in March.

My findings

52. It is not the Ombudsman’s role to decide whether a child can attend school. Nor can we decide whether alternative provision should be delivered, or what form that delivery should take.
53. However, we expect councils to meet their statutory responsibilities, which, under section 19 of the Education Act, are clear. If a child cannot attend school for illness or other reasons, and arrangements have not already been made to deliver suitable education to them, the council must make such arrangements. This remains the council’s responsibility even if the child is on roll at a school.
54. In practice, when a council receives a report that a child cannot attend school, we expect it to consider the child’s circumstances, and then – in light of those circumstances – to decide whether its duty to deliver section 19 provision has arisen. All decisions should be properly explained, with reference to relevant evidence, including medical evidence.
55. In Y’s case, the Council did not consider Mrs X’s request for alternative provision for around five months after she made it.
56. Despite Mrs X then making a formal complaint, and despite this complaint seemingly eliciting some form of section 19 consideration by the Council, it did not respond to either her section 19 request or her complaint.
57. The Council’s records refer to Y’s case being discussed at ‘section 19 panel’ and to Mrs X’s request for alternative provision being refused. But there is no record of any of this consideration or decision-making. If a decision was made to reject
    Mrs X’s request, there is no evidence of (or explanation for) it.
58. The Council also failed to respond to further correspondence Mrs X sent about Y’s lack of education in the summer term of 2025. It did respond to her MP the following term; however, despite knowing that Y was not attending school (and may not have been able to attend school), it incorrectly told the MP that it had no responsibility for his education.
59. The Council should have issued Y’s EHC plan by June 2025, but partly (although not entirely) because of delays finding an educational psychologist, it did not do so until March 2026 – a delay of nine months.
60. For these reasons, I have found that the Council was at fault.
61. I am satisfied that both Mrs X and Y suffered injustice.
• For Y, an opportunity was missed to decide how his educational needs could be met over a significant period (although his injustice was somewhat mitigated by the tuition he received at Mrs X’s expense).
• Mrs X paid for Y’s tuition over much of the same period. She also went to a considerable amount of time and trouble contacting the Council and trying to get it to respond.
• The significant delay to Y’s EHC plan meant there was a delay to the provision in the plan being made available to him. The delay also caused a corresponding delay to the Council’s handling of Mrs X’s section 19 request.
62. The Council should now act to recognise the injustice suffered by Mrs X and Y.
63. I have considered whether it would also be appropriate to recommend that the Council take steps to improve its service. However, I note that we have recently investigated complaints against the Council about similar matters and have made service improvement recommendations. Time will tell whether these are effective.

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Action

64. Within four weeks, the Council has agreed to:
• Write to Mrs X with a detailed apology for the areas of fault I have identified. We publish guidance which sets out what we expect an effective apology to look like. The Council will consider this guidance when writing to Mrs X.
• Invite Mrs X to provide invoices for what she spent on Y’s tuition between December 2024 and January 2026.
65. Within six weeks, the Council has agreed to:
• Refund Mrs X for what she spent on Y’s tuition.
• Pay Mrs X a symbolic financial remedy of £250, on Y’s behalf, to recognise that – because of the Council’s failure to deal with Mrs X’s section 19 request in late 2024 – it is now unclear whether Y missed out on any suitable education on top of the tuition Mrs X paid for.
• Pay Mrs X a further financial remedy of £900, on Y’s behalf, to recognise the injustice he suffered from the significant delay to his EHC plan.
• Pay Mrs X £600 to recognise that the Council’s failure to deal with her section 19 correspondence and its failure to issue Y’s EHC plan on time caused her distress. This payment also recognises the considerable amount of time and trouble she went to in trying to get these matters resolved.
66. The Council will provide us with evidence it has done these things.

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Decision

67. The Council was at fault, and this caused injustice to Mrs X and Y, which the Council will now take action to address.

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Investigator's decision on behalf of the Ombudsman