Summary: Ms X complained the Council failed to provide her daughter with alternative provision while she was out of school. We find the Council at fault for failing to arrange a suitable full-time education or any alternative provision from October 2024 to February 2025. The Council also failed to meet its statutory duty to ensure the provision set out in her daughter’s Education, Health and Care Plan was delivered. This fault meant Ms X’s daughter missed out on education and special educational provision. This also caused Ms X and her daughter distress and uncertainty. The Council has agreed to apologise and make a payment to Ms X.

The complaint

1. Ms X says the Council failed to provide alternative provision for her daughter, Y, after it became aware she had stopped attending school in October 2024. She says it also failed to ensure Y received the provision set out in her Education, Health and Care Plan (EHC Plan). She says as a result Y’s education has suffered, her anxiety has become worse, and the family have experienced significant frustration and distress.

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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. 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. 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

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

What I have investigated

7. If a parent objects to the education setting named in a child’s EHC Plan, they have a right of appeal to the Tribunal. In usual circumstances a complaint about the suitability of an educational setting would therefore be out of the Ombudsman’s jurisdiction. However, although Ms X initially chose to home educate Y and remove her from her school’s (School A) roll, she later decided she did want Y to attend School A and considered it suitable. She then requested it to be the named setting in Y’s EHC Plan. Therefore, we can investigate this complaint.

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What I found

Education, Health and Care Plans

8. 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. 
9. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

General section 19 duty

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. [The provision generally should be full-time unless it is not in the child’s interests.] (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 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)

Elective Home Education

13. 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.

What happened

14. In September 2024, Y started Year 10. Y has an EHC Plan. Shortly after the start of term, School A contacted Ms X and advised it could not meet Y’s needs or deliver elements of her EHC Plan.
15. The Council sent a consultation letter to School A and said it intended to continue naming it in Y’s EHC Plan.
16. At the beginning of October, Ms X informed the Council she wished to deregister Y from School A with immediate effect and home educate her. The Council recorded Y as electively home educated the next day.
17. Around two weeks later, one week before the end of the Autumn half term, Ms X submitted a complaint to the Council about a lack of communication from its Special Education Needs and Statutory Assessment and Provision (SENSAP) team regarding Y’s education. She also said she wanted an educational setting for Y that met her needs and said she no longer wished to home educate.
18. The Council contacted Ms X that same week. It sent Ms X an elective home education guide and referral form. It advised Ms X she needed to return the form and outline plans for Y’s home education. It said it would send this to the SENSAP team, who would assess whether Y would receive a suitable education at home that would meet her special educational needs.
19. The Council then spoke with Ms X to discuss her wishes for Y’s education. Ms X told the Council she wanted a blended offer of education for Y. This would include two days of provision at an education charity where Y could study for a BTEC, and to attend School A on the other three days, as part of a phased return to full time attendance at School A.
20. Towards the end of November, the Council named School A in Y’s final EHC Plan. The Council contacted School A to let it know.
21. At the beginning of December, School A challenged the Council about being named in the EHC Plan. It explained Y needed a higher level of support than it was able to offer. The Council wrote to School A to explain it had to accept Y onto its roll since it was named in the Plan.
22. At the end of January 2025, the Council met with School A to discuss the blended model of education Ms X had suggested. The Council also contacted the education charity Ms X had identified to ask what provision it would be able to offer Y. The charity confirmed it could offer two days of provision per week, building up to three days if suitable.
23. The Council responded to Ms X’s complaint and apologised for the lack of communication from its SENSAP team. It explained this was due to staff capacity and an increased demand in service. It confirmed it had started the referral process for Y to attend the education charity Ms X wanted her to attend.
24. At the end of February, the Council arranged funding for a placement at the charity and set a start date for after the February half term. The Council also contacted School A to arrange a meeting with Ms X to discuss Y’s return.
25. Ms X complained to the Ombudsman in April.
26. In September, the Council offered Ms X and Y’s father a financial remedy in recognition of Y’s missed provision. It also said that from October 2024 to May 2025 Y was registered as electively home educated.

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Analysis

27. Y did not attend School A or receive any education from early October 2024 until late February 2025. Ms X elected to home educate Y at the beginning of October 2024. From this point, the Council no longer had a legal duty to provide education for Y.
28. However, later that month, Ms X told the Council she no longer wished to home educate Y and wanted her to attend School A again on a part time basis. From the moment it became aware Ms X no longer wanted to home educate, and School A refused to admit Y on its roll, the Council had a Section 19 (S19) duty to provide alternative provision for Y while she was not attending any educational setting. It did not fulfil this duty until the end of February, when it arranged provision at the education charity. This is fault.
29. The Council also had a Section 42 (S42) duty to ensure all special education provision in the Plan was delivered. This includes the named education setting. When the Council has named an education setting in a child’s final EHC Plan, that setting has a legal duty to admit the child. In this case, School A refused to take Y back on its roll. This means the Council had a duty to step in to enforce School A’s compliance with Y’s EHC Plan and accept her back on its roll.
30. There is evidence the Council made reasonable efforts to encourage School A to readmit Y. It reminded School A of its legal duties, met with School A, and facilitated meetings with Ms X to discuss School A’s concerns about readmitting Y. However, while the Council was undertaking efforts to secure Y’s readmission to School A, it still had a legal duty to provide S42 provision for Y from the moment it became aware Ms X no longer wanted to home educate. That it did not do so is fault.
31. The Council’s failure to meet its S19 and S42 statutory duties means that Y missed out on suitable education for a total of 13 weeks. She also missed out on the special educational provision set out in her EHC Plan for this period. As a result, Ms X suffered uncertainty and worry about Y’s education and Y has suffered distress and anxiety. I have recommended a suitable remedy to address this injustice below.
32. In September 2025, the Council paid a financial remedy of £1200 to Y’s family for her missed provision from November 2024 to February 2025. The family accepted this offer. While I acknowledge the Council’s remedy offer, it does not fully remedy the injustice caused to Ms X and Y by its fault. Our remedies guidance recommends £1650 to be a suitable remedy for this time period. I have considered the Council’s payment to Y’s family when calculating my remedy recommendation.
33. The Council has recently agreed to service improvements for other investigations relating to S19 and S42 provision. I have therefore not repeated these recommendations here as the Council should be given the opportunity to make these changes.

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Agreed action

34. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X for the distress and uncertainty caused by the Council’s faults.
2. Pay Ms X £450 for Y’s missed provision from October 2024, when Ms X told the Council she no longer wished to home educate Y, to February 2025. We would recommend Ms X uses this payment for Y’s educational benefit.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I find fault causing injustice for which I recommend a remedy. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman