Summary: We found fault by the Council on Mrs Y’s complaint about it failing to provide alternative education to her son, Z, who was without formal education from April 2024. It failed to show it properly considered whether it owed Z a duty to provide alternative provision. It also failed to communicate with her properly. The Council agreed to send an apology, make a payment for lost provision, a contribution towards advocacy and tuition costs, reviewing what happened, and reminding officers of what is expected of them.

The complaint

1. Mrs Y complains about the Council failing to:
1. provide alternative education to her son who was without any formal education from April 2024; and
2. communicate with her about his lack of education despite being told the school’s attempt to make alternative provision was unsuccessful.
2. As a result, her son was without education for 18 months which caused her a great deal of anxiety, frustration, as well as time and trouble trying to get it resolved. It has also cost her financially as she paid privately for online tuition.

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The Ombudsman’s role and powers

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. 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.
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. In her complaint to the Ombudsman, Mrs Y made it clear she was not complaining about the Education, Health and Care (EHC) plan process. This meant I have not investigated any complaint she may have about the Council and the EHC plan process.

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How I considered this complaint

8. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

Education, Health and Care plans

9. A child with special educational needs may have an EHC plan. This 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 education or name a different school. Only the Tribunal can do this.
10. 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 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)  

Alternative provision

11. 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.
12. 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)
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude, and to any special educational needs he or she may have. (Education Act 1996, section 19(6))
14. The courts have considered the circumstances where the section 19 duty applies. Case law 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)

Education otherwise than in school (EOTAS)

15. If a school setting, for example, is not appropriate for a child or young person, and the parent decides not to home educate, a council can arrange for any special educational provision they require to be delivered somewhere else and set this out in an EHC plan. The Council would be responsible for continuing to secure and fund that provision. (Children and Families Act 2014, section 61)

Personal Budgets

16. A personal budget is the amount of money the council identified it needs to pay to secure the provision in a child or young person’s EHC plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC plan themselves.

What happened

17. Mrs Y has a 15 year old son, Z, who she said was without any formal education from April 2024. His school, and Mrs Y, told the Council he was unable to access the alternative onsite provision the school offered. Z suffers from severe anxiety. She believes this, and issues with autism, stopped him going to school. She is unhappy with the poor communication from the Council about Z and his education.
18. In early 2024, the Council received a request for an Education, Health and Care Needs Assessment (EHC needs assessment) which involved getting the views of Z’s school. The EHC needs assessment is an assessment of the education, health care, and social care of a child. It allows a council to decide whether it is necessary for the child to have an EHC plan.
19. In May, as part of the EHC needs assessment process, the school explained Z had heightened anxiety preventing him from attending school or even leaving the house. He would not engage with home visits either. The school offered Mrs Y separate onsite provision in a smaller separate building with around 3 students each day running for two hours. The school noted Z would not leave the house to even drive past it. Given Z’s history, and how he coped with any setting away from home, the school considered it could not accommodate his complex needs. It could not meet Z’s needs within the normal resources available to pupils in a mainstream setting of school because of his anxiety. Without robust intervention, it would impact on his academic progress.
20. The school also noted Z attended a weekly 1:1 session set for one hour a week but only for 15 minutes. He refused to attend for onsite provision and home visits were now just quick wellbeing visits completed on the doorstep because of his anxiety.
21. The result of the EHC needs assessment was the Council deciding Z did not need an EHC plan. Mrs Y appealed the decision.
22. In August, Mrs Y emailed the Council about alternative provision for when Z went back to school the following month. She was told this would be considered through her appeal.
23. In September, the Council received another request for an EHC needs assessment. The same month, Mrs Y again asked about section 19 provision.
24. The following month, the Council agreed it would carry out another EHC needs assessment.
25. In January 2025, the educational psychologist gave advice which said Z:

• was not ready to attend an education setting and would need formal teaching online or in person.
• would need a weekly session of at least two hours with other young people which could be done through alternative provision. In response to our enquiries, the Council said this was similar to the school’s offer of onsite alternative provision.
• needed teaching in a setting with small class sizes (below 10) when he can attend a setting.
• will need, until ready for a setting, formal online teaching or in person teaching for at least two hours a day. If he can attend a setting, a time limited small friendship group was needed.
• also needed any transition to an educational setting to be carefully planned and at his pace.

26. In February, Mrs Y told the Council Z was not, and could not, attend school and again asked about its section 19 duty.
27. The following month, Mrs Y again contacted the Council and asked for a meeting to discuss section 19 provision. This took place in April.
28. The same month, the Council sent her its stage 1 response under its complaints procedure. It apologised for the poor communication and accepted it was below the standard that should be expected. To improve communication, it changed the way SEND officers are allocated cases. They now are allocated all young people with EHC plans within an individual school or setting. They are the key person to liaise with that school/setting. This allows closer working relationships and communication with schools and parents, so the SEND officer is easily identifiable. Officers are also receiving training on expectations for communications to improve response times.
29. The same month, it sent her the draft EHC plan. Mrs Y sent the Council what she felt would be needed to achieve what the educational psychologist advised. An officer asked to discuss this with her.
30. The discussion took place in May with the Council confirming there was a basic agreement to EOTAS and sent her a personal budget form to complete. The Council said it hoped to get some online learning in place before summer. Later that month, the Council told her it needed confirmation from its commissioning team for the online provision and did not want to finalise the EHC plan until it had it.
31. The Council also sent her its stage 2 response to her complaint. It explained its view that education was being offered by the school and since the issuing of the EHC plan, the Special Education Needs and Disability (SEND) officer continued to work with her to secure alternative provision. It again said the current placement at the school met his needs and continued to offer provision.
32. In June, the school asked to remove Z from the roll and the Council issued the final EHC plan, although Mrs Y disputes it issued it. This said he would be taught in a setting with small classes (below 10) but needed a gradual transition back into the education setting. He was not yet ready to attend a setting so would have formal teaching online or in person for at least two hours a day. It did not name a school or setting but said ‘Other Arrangements made by the Local Authority’.
33. Mrs Y confirmed since September, Z attended an online school. She claims there was still no final EHC plan. She said she left her job to help educate Z, spent £1,314.60 on advocacy help, and £170 for online learning which she paid for. She said she lost money because she had to reduce her working hours to help educate Z.
34. In response to our enquiries, the Council maintained:

• the school offered alternative provision which Mrs Y failed to take up. The school was the appropriate method for offering this and all options were not exhausted. The Council failed to say what these options were.
• the school could offer online learning, despite Mrs Y’s claim it could not. This was because it had done so during COVID lockdowns. This was why the Council refused to provide online learning.
• the SEND officer continued to work with Mrs Y to secure alternative provision.

My findings

Complaint a): failure to provide alternative provision

35. I found fault on this complaint for the following reasons:
1. The starting point is section 19. This states a council 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 Council needed to consider whether it was reasonably practicable for Z to access suitable education from the school. The Council had to ask whether what was offered was available and accessible.
2. In May 2024, the Council was alerted to the problems Z had with accessing education in the school’s response to the EHC needs assessment request. This told the Council anxiety prevented Z from attending school. It prevented him from even leaving the house. Nor would he engage in home visits, which had become nothing more than brief wellbeing checks on the doorstep. While the school offered alternative provision onsite in a separate building, Mrs Y could not even get Z to agree to drive past and view it. The school noted his history and explained it, as a mainstream school, was not a suitable setting for him with the normal resources available to it.
3. While the Council decided Z did not need an EHC plan, there was nothing to show it considered, at this point, whether its duty under section 19 now applied considering what the school had said about attendance and its alternative onsite provision. There was no evidence showing the Council considered whether what was offered through the school was available, suitable education for Z, and reasonably practicable for him to access. There was no evidence of the Council considering whether it needed to make alternative provision, such as online learning, in these circumstances. I consider these failures amount to fault.
4. The evidence showed Mrs Y then contacted the Council in August, asking about section 19 alternative provision. She was concerned about what would happen when the new term started the following month. The Council said it would be dealt with through her appeal against its decision to refuse to do an EHC needs assessment.
5. There was again no evidence showing the Council turned its mind to whether it owed Z the section 19 duty at this point and whether it needed to provide alternative education. The Council had evidence Z had problems accessing school and the onsite provision. It also had a direct request about alternative provision. This was an important time for Z as he would shortly start a new academic year.
6. In September, the Council received another request for an EHC needs assessment and again Mrs Y asked about section 19 alternative provision. There was no evidence of the Council considering whether it owed him a section 19 duty or whether it should make alternative provision.
7. By January 2025, the Council had further updated evidence about Z from the educational psychologist advice it received as part of the EHC needs assessment process. This brought several important points to the Council’s attention. The advice told the Council Z was not yet ready to attend an education setting and would need either online formal teaching, or in person teaching. This was needed until Z was ready to attend a formal setting again which needed careful planning for this transition.
8. There was no evidence showing the Council considered whether it needed to make alternative provision at this point or what steps were needed to get Z to start attending a setting. The Council said the school provided online learning during lockdown so could do so again for Z but, it failed to provide evidence of exploring this with the school or Mrs Y. Nor was there evidence of the Council exploring the problems Z had accessing onsite alternative provision. There was nothing to show the Council asked whether this was still a problem. It did not show whether, after all the time that had passed, it had explored whether onsite provision by the school needed abandoning for the time being.
9. There was a meeting between officers and Mrs Y in April 2025 to discuss her further request about section 19 provision. No evidence of what was discussed at that meeting was provided. This means I am unable say whether the Council properly considered section 19 or not at this point.
10. While there was some email evidence between Mrs Y and the Council about his EHC plan, and the possibility of online provision by the end of the school academic year, there was no evidence Z received it.
11. The Council was not expected to become involved in situations where a child could still attend school with some support,t or where a school has made arrangements to deliver suitable education outside of school. Taking account of all the evidence, I am not satisfied the Council showed it objectively considered whether the education arranged by the school was suitable.
12. There was nothing to show the Council considered whether it was reasonably possible or not for Z to attend this onsite school setting in all the circumstances. While the education provision offered by the school might have been available, there was no record showing the Council turned its mind to whether it was accessible to Z.
13. If the Council decided the section 19 duty did not apply, it should have considered whether it needed to look at taking enforcement action against Mrs Y. There was no evidence of it considering this.
14. On balance, I am satisfied the above failures amount to fault. During this 17-month period, the Council was aware of the problems Z faced but failed to show it considered whether it needed to provide alternative suitable education. This was despite being alerted to the difficulties Z had attending a school setting.
15. I am satisfied these failures caused an injustice to Mrs Y and Z. This includes:

• a loss of opportunity for the Council to have properly considered its section 19 duties promptly.
• a loss of education from April 2024 to September 2025 when Z began to receive online learning. I consider he lost 4 terms of education (1 x April-July 2024; 1 x September-December 2024; 1 x January-March 2025; 1 x April-July 2025).
• some expenses paid by Mrs Y for online learning.
• frustration, anxiety, and the stress caused over a prolonged 17-month period.
• costs of advocacy help obtained because of the identified failures.

Complaint b): failure to communicate

36. I found fault on this complaint. This is because the Council accepted there were communication problems with Mrs Y. I am satisfied this caused her an injustice. It caused further frustration.

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Action

37. I considered our guidance on remedies. I also considered:

• the apology the Council gave Mrs Y for its poor communication and the actions it said it took to ensure this cannot be repeated in the future.
• the needs of Z, his age, the impact on Mrs Y with additional caring responsibilities that resulted, and the period covered.

38. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y an apology for the injustice caused by the failures to: properly, and promptly, consider whether it owed the section 19 duty; keep a record of any consideration of the section 19 duty throughout the case.
2. Pay £6,800 to Mrs Y for the injustice caused by the identified fault about loss of education provision (£1,700 x 4 terms which was calculated at: 1 term x April-July 2024; 1 term x September-December 2024; 1 term x January-March 2025; 1 term x April-July 2025).
3. Pay £1,000 contribution towards her advocacy costs provided Mrs Y produces satisfactory evidence showing she was invoiced, and paid, for these services during this period.
4. Pay £170 for the tuition costs she paid provided Mrs Y produces satisfactory evidence showing she was invoiced, and paid, for these services during this period.
5. Review why the failure to properly consider section 19 alternative provision happened and act to ensure this cannot be repeated on future cases.
6. Remind all relevant officers of: i) the need to consider section 19 alternative provision throughout a case where concerns are raised about a child not attending school; and ii) make a record of the decision-making process
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I found the following on Mrs Y’s complaint against the Council:

• Complaint a): fault causing injustice; and
• Complaint b): fault causing injustice.

41. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman