Summary: There was fault by the Council, because it did not take responsibility for ensuring the complainant’s son had suitable alternative educational provision when he was unable to attend school. The Council has agreed to apologise and offer a financial remedy to remedy the injustice this caused.

The complaint

1. I will refer to the complainant as Mrs G.
2. Mrs G complains the Council did not make adequate arrangement to ensure her son, D, received educational provision, during a period he was unable to attend school for health reasons. Mrs G says this affected both D’s and her own mental health, and that she was unable to work because of it.

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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 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. In her complaint to the Ombudsman, Mrs G said D has experienced difficulty attending school since the 2023/24 academic year, and that the Council’s attendance team has been involved since January 2024.
9. The law says a person should approach us within 12 months of becoming aware of the matter they wish to complain about. This is called the ‘permitted period’. Any complaint which falls outside this period is late, and we should not generally investigate it.
10. In this case, Mrs G made her complaint to us in April 2025, meaning the period before April 2024 is late.
11. The law does provide us with the flexibility to disapply this restriction, where we consider it appropriate, but we must first be satisfied there is a good reason for a person’s delay in making their complaint. I have not seen evidence to suggest Mrs G could not have approached us sooner, and so I do not consider I have grounds to exercise that discretion here.
12. I am also unable to investigate Mrs G’s complaint about D’s provision after December 2024. This is because the Council issued an education, health and care (EHC) plan for D at that point, which named a particular school it expected him to attend. This was a decision Mrs G had the right to appeal to the SEND Tribunal, and did so. The question of whether the Council should instead have arranged alternative educational provision is therefore closely linked to a matter subject to appeal, meaning we have no jurisdiction to consider it.
13. Separately, Mrs G has also complained the Council has failed to secure the specialist provision set out in D’s EHC plan since its issue in December 2024. However, for the same reason, I cannot investigate this. This is because delivery of the specialist provision in the plan is dependent on D having a placement in either a mainstream or specialist educational setting, and is therefore also closely linked to Mrs G’s appeal to the SEND Tribunal.
14. For these reasons, my investigation has covered only the period April to December 2024.

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How I considered this complaint

15. I considered evidence provided by Mrs G and the Council as well as relevant law, policy and guidance.
16. I also shared a draft copy of this decision with each party for their comments.

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What I found

Alternative provision

17. 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.

Mrs G’s complaint

18. The following chronology will provide an overview of the key events relevant to this complaint. It is not intended to be a comprehensive account of everything that happened.
19. D has diagnosed learning difficulties. During the 2023/24 academic year he was in Year 6 at a mainstream primary school, but with low attendance. In March D was allocated a place at a secondary school (to which I will refer as School 1). Mrs G contacted the Council to express concern about the suitability of this placement, given D’s needs.
20. Between April and July, in expectation that D would find attendance at School 1 difficult, work was completed by the Council to facilitate his transition to secondary school. Meanwhile, D’s primary school took various measures to support his attendance there, but with limited success. Mrs G says D did not attend school at all in the last half-term of the year.
21. In September, D started on roll at School 1, but Mrs G says he did not actually attend school. The Council says its inclusion support panel heard D’s case on 11 September, and “agreed the request to explore” alternative provision through a specialist school (School 2).
22. A few weeks later Mrs G wrote to the Council to make a formal request that it arrange alternative provision under its section 19 duty. She identified a particular provider (Provider 1), with whom she said D had already had a successful preliminary session, and asked the Council to commission this.
23. In November, D started on roll at School 2, in a joint placement with School 1.
24. In January 2025, Mrs G submitted a stage 1 complaint to the Council. She explained D had not attended school at all since the May half-term, and had missed most Year 6, which she said the Council was aware of. Mrs G noted the Council had issued D’s EHC plan in December, and said it had named School 1 in the plan after “failing to identify” a placement that met D’s needs. She also noted the Council had said it would liaise with School 1 to arrange alternative provision, while D waited for a specialist placement.
25. Mrs G said School 1 had made clear it could not meet D’s needs, and did not feel it should be responsible for arranging his alternative provision. Although the school had arranged an alternative provider (Provider 2), this consisted of online learning which D could not access. Mrs G reminded the Council of its section 19 duty, and also of its duty to secure the specialist provision set out in D’s EHC plan.
26. In response, the Council confirmed Provider 2 was the current arrangement for D’s alternative provision. It said it had named School 1 in D’s EHC plan because it was not permitted to leave this section blank, but that it was liaising with School 1 to consider any supplementary provision it could arrange for D. The Council said it had discretion to decide whether its section 19 duty applied in any particular case, and if so, what type of provision was appropriate.
27. Mrs G submitted a stage 2 complaint in February. She disputed the Council had worked effectively with School 1, as she said D still had no suitable provision. She said School 1 was not suitable for his needs and reiterated he had had no education since May.
28. Mrs G also reiterated D had been unable to access online tuition with Provider 1 since it began in November. She said she felt caught up in a dispute between the Council and School 1 which party was responsible for arranging D’s alternative provision.
29. The Council responded to say School 1 was in receipt of funding from the Council to arrange alternative provision for D, and that it had met with the school to ensure it understood this responsibility. It repeated its comments that it was up to the Council to decide whether its section 19 duty applied, and said "[until] this responsibility is formally accepted, [it was] not required to arrange alternative provision”.
30. The Council also explained again it was the Council’s decision what constituted suitable alternative provision, and said it had received no evidence to suggest D was unable to access Provider 1’s services. The Council noted Mrs G had submitted an appeal with the SEND Tribunal about the placement named on D’s EHC plan.
31. Mrs G referred her complaint to the Ombudsman in April.

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Analysis

32. Under its section 19 duty, where a child is unable to attend school for a qualifying reason, the Council must make arrangements to ensure they continue to receive suitable education.
33. In this case, Mrs G says D’s attendance deteriorated during the 2023/24 academic year, and that he did not go to school at all for the last half-term of the year. He also did not start attending School 1 when the new year started in September. That suggests the Council’s section 19 duty was engaged during the period covered by my investigation.
34. In its response to Mrs G’s complaint, the Council explained it was a decision for the Council to make whether its section 19 applied in a particular case. This is true, in the sense it was for the Council to decide whether D was absent from school for a qualifying reason.
35. But I find the Council’s position on this difficult to grasp. The Council’s response to Mrs G’s complaint can be read to imply it did not agree, in this case, its section 19 duty was engaged. And, in my enquiries with the Council, I twice asked it to confirm, explicitly, whether it considered its section 19 duty was applicable in D’s case, but the Council did not respond to this question.
36. However, it is also clear the Council expected School 1 to arrange alternative provision, using the funding it had received from the Council. If the Council agreed alternative provision was necessary for D, it would appear to follow automatically that it considered its section 19 duty engaged.
37. Similarly, I note the Council held a meeting with School 1 soon after the start of the academic year, in which it agreed to explore alternative provision through School 2.
38. On balance, therefore, I consider the Council did accept its section 19 duty was applicable here.
39. Having provided it with funding, it is apparent the Council expected School 1 to arrange alternative provision. Mrs G has explained the school disputed it should be responsible for this, although it appears it did so anyway. In principle though, there is no reason a council cannot delegate alternative provision arrangements to a school, and so in the simple sense this is not fault.
40. The problem here arises from the fact Mrs G says the provision arranged by the school, Provider 2, was not suitable for D, because he could not access online tuition. While the Council can delegate the day-to-day implementation of a duty, it cannot delegate the duty itself, and so the responsibility for this apparent failure in the arrangements still falls to the Council.
41. In its response to the complaint, the Council said it had seen no evidence Provider 2 was not suitable for D. Again, in the simple sense, this is a valid consideration for the Council to make; but there is nothing I can see to show the Council actually investigated the situation at the time, to justify drawing this conclusion. Rather, it appears to have just assumed D should be able to manage the provision. This comment is, therefore, not convincing.
42. Taking these points together, I find fault by the Council. While it was entitled to ask School 1 to make the arrangements, that did not mean the Council’s duty was then entirely discharged, especially when it became apparent the school’s arrangements might be ineffective. The Council should have taken ownership of the situation at this point, and, if necessary, looked into making other arrangements.
43. In terms of the injustice this caused, I do not consider I can safely say D would definitely have received comprehensive alternative educational provision, for the entire period in question, were it not for the Council’s fault.
44. I am particularly conscious of Mrs G’s comments about D not being able to access online tuition. There are, evidently, alternatives to online tuition, such as having an individual, face-to-face tutor, but these are often in short supply, and there can be delays in identifying a suitable candidate with capacity to take on a new student.
45. On balance, therefore, I consider the injustice to Mrs G is one of uncertainty, and the frustration this caused, insofar as it is possible (though not definite) the Council could have made more suitable and effective arrangements for alternative provision for D.
46. To remedy this, and having considered our guidance on remedies, the Council should offer Mrs G a financial remedy of £300, and write a formal letter of apology to her, acknowledging the fault and injustice I have identified.

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Action

47. Within one month of the date of my final decision, the Council should:

• offer to pay Mrs G £300, to reflect the uncertainty and frustration it caused by not taking responsibility for ensuring D had suitable alternative provision; and
• write a letter of apology for the same reason. 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 in making the apology I have recommended in my findings.

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

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Decision

49. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman