Summary: There was no fault in the Council’s decision to not put alternative provision in place after Mrs X’s child (Y) stopped attending school between November 2024 and February 2025. This was because there was a part-time timetable in place for Y which the Council kept under review.

The complaint

1. Mrs X complained the Council failed to implement alternative provision for her child, Y after they stopped attending school. Mrs X says as a result her child missed out on a suitable education.

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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. 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(i), 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)

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What I have and have not investigated

4. The courts have established that 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). This means that 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.
5. Y had a placement at a mainstream school, school A from September 2024 until June 2025. The Council issued an EHC Plan for Y at the end of February 2025. It did not name a specific placement but said that attendance should be in a mainstream school.
6. Mrs X stopped sending Y to school around the same time as she said it was unsuitable. Mrs X appealed as she wanted a small independent setting named in the EHC Plan. I cannot investigate Y’s education past February 2025. Doing so would involve looking at the Council’s decision about the educational placement in the EHC Plan and therefore trespassing on the Tribunal’s jurisdiction.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

Relevant law and guidance

EHC Plans

9. 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.
10. 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. 
11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Alternative provision

12. 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.
13. 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)
14. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
15. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream 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.

16. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Part-time timetables

17. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
18. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

19. Mrs X has a child Y with special educational needs (SEN). Y attended a mainstream school, school A. Y stopped attending school in November 2024 due to SEN related burnout.
20. At the end of November 2024, the school notified the Council it had put a part-time timetable in place for Y which the Council approved. Y was to attend school each morning from 08:40-10:45.
21. The school updated the Council a week later to say that Y had managed two days of the part-time timetable that week. Y was happy and enjoying the lessons. The school said their attendance was still a huge concern and this would be reviewed following a GP appointment Y had for burnout.
22. On 6 December, the Council asked the school for an update. The school provided a further part-time timetable to the Council mid-December where Y was doing further reduced hours (09:20-10:45). The school said Y was coming into school more regulated and there was a plan in place outlining the extra support needed.
23. In early January, the school submitted a further part-time timetable with increased hours for Y. Y was to attend 08:45-12:10 every day. The school told the Council Y was attending school in the mornings and there were multiple reasonable adjustments in place to try and support them. The family has an extra help plan in place and meetings are held every two weeks to review and increase the time in school. The school said there was a review on the 16 January to look at increasing Y’s attendance time to 13:30 next week.
24. On 20 January, Mrs X emailed the Council requesting alternative provision for Y until the Council found a suitable school placement for Y.
25. The following day the Council gave the following advice to the school:
• The school should consult with the Cheshire East Autism Team and an Educational Psychologist if it has not already done so;
• The school should complete the emotionally based school non-attendance (EBSNA) toolkit to shape its reintegration plan if it has not already done so; and;
• The school should explain to Mrs X that non-attendance may lead to the school marking the child as unauthorised absence and asking the Council to consider prosecution.
26. In early February the school notified the Council it had done the things it had asked. It said Y had not been to school at all that week as Mrs X did not feel it was suitable for Y. It said Mrs X no longer wants to do the part-time timetable. It said it was concerned as the school felt the timetable was working and Y was asking to stay in school longer. The school said it has done everything it possibly could to support Y and the matter required further escalation.
27. Approximately two weeks later, the Council issued Y’s final EHC Plan which Mrs X then appealed.
28. The same month, Mrs X raised a complaint with the Council that it had failed to put in place alternative provision since her child stopped attending school.
29. The following month the Council issued a final complaint response. It said it had not received a referral for section 19 alternative provision. It said it has an in-house tuition team for children too ill to attend school. It said it will contact school A to start the application for this.
30. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

The Council’s response to our enquiries

31. The Council said, from November 2024 to February 2025, it worked closely with school A, providing advice alongside reviewing Y’s part-time timetables on a regular basis. The Council said its approach was fully aligned with the statutory guidance, ensuring that support was proportionate. It also said it maintained ongoing dialogue with the school to monitor arrangements and offer guidance on best practice for managing attendance concerns.

My findings

32. When Y stopped attending school in November 2024, the Council put in place a part-time timetable for Y as a temporary measure as part of a reintegration plan. The records show the Council kept this under regular review and had regular communication with the school about this. The records show Y was making progress with this and their hours were set to increase in mid-January. There was no fault in how the Council implemented and managed Y’s part-time timetable.
33. When Mrs X requested alternative provision at the end of January, the Council contacted the school the next day to make further enquiries and ensure that Y had been offered all the support available. The school responded early February to say that it had done all that it could and this may need to be escalated by the Council further. Approximately two weeks later the Council issued Y’s EHC Plan which is the cut off period for our investigation. We would not expect the Council to consider its section 19 duty and implement alternative provision in this short timescale. Therefore, there was not fault in the Council’s decision not to provide Y with alternative provision.

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Decision

34. I find no fault.

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Investigator's decision on behalf of the Ombudsman