Summary: Mrs X complained the Council failed to provide a suitable full time education to her child Y. She says this caused Y to miss education and distressed her and Y. The Council was at fault. It failed to assess whether Y was being suitably educated. This distressed Mrs X and Y. The Council has agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained the Council failed to provide suitable education for her child, Y, She says this caused Y to miss education and distressed her and Y.

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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. 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. 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 not investigated

6. I have not investigated matters prior to May 2024 more than 12 months before Mrs X complained to us. Paragraph 4 says we cannot investigate late complaints unless we decide there are good reasons. There are not good reasons to investigate Mrs X’s complaint before May 2024. I reference matters before this date for context.
7. I have not investigated matters after April 2025. The reasons for this are explained in paragraph 32.

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How I considered this complaint

8. I read Mrs X’s complaint and spoke to her on the phone.
9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background Information

11. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
12. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
13. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
14. 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)
15. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear medical reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated. 
16. 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. 
17. 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 

18. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
19. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)

What happened

20. This is a summary of events, outlining key facts and does not cover everything that occurred in this case.
21. In 2023 Y suffered significant anxiety which impacted his physical health and meant Y was unable to attend school. In January 2024 Y’s school started providing home tuition for Y. From April 2024 Y was receiving 6 hours per week home tuition.
22. Mrs X asked the Council to carry out an EHC Needs assessment for Y. In October 2024 the Council turned down Mrs X’s request. Mrs X appealed to the Tribunal.
23. In December 2024 Mrs X complained to the Council. Mrs X said the Council was ending Y’s home tuition and making Y return to school. Mrs X also complained the Council had not provided suitable full time alternative education provision for Y. Later that month the Tribunal decided the Council should carry out an EHC needs assessment of Y.
24. The Council replied to Mrs X’s complaint in January 2025. The Council said Y’s school had a legal duty to provide Y’s education and Mrs X should address any issues to the school. Mrs X was unhappy with the Council’s reply and escalated her complaint.
25. In April 2025 the Council issued its stage 2 complaint response. The Council said Y’s school was responsible for managing Y’s education and Mrs X should speak to the school if she felt stopping Y's home tuition would be harmful or the education provided was insufficient. The Council said it was only responsible for alternative education provision if a child had an EHC Plan or was not on a school roll.
26. The Council issued Y’s final EHC plan in April 2025. The Plan named Y’s school as Y’s education setting until July 2025 and a new school from September 2025.
27. In June 2025 Mrs X appealed to the tribunal against sections B. F and I of Y’s EHC plan.
28. Mrs X was not satisfied with the Council’s response to her complaint and has asked the Ombudsman to investigate. Mrs X would like the Council to provide suitable education for Y and make a payment for the impact of Y’s loss of education on her and Y.
29. In response to my enquiries, the Council said it first knew Y was not attending school in January 2025 and did not arrange alternative education provision because Y’s school was providing home tuition. The Council also said its stage 2 complaint response was incorrect in saying it was only responsible for alternative education provision if a child had an EHC Plan or was not on a school roll.

My findings

Education Provision

30. Paragraphs 11 to 13 say the Council must assess if it has a duty to arrange suitable education for a pupil who is out of school. The Council told us it first knew Y was not attending school in January 2025. However, the Council knew Y was out of school one month earlier when Mrs X complained in December 2024. At that time Y’s school was providing 6 hours one-to-one home tuition per week for Y. We would expect the Council to have objectively considered whether the education provided by the school was suitable for Y. There is no evidence the Council did this from December 2024 to April 2025. This is fault.
31. Paragraph 15 confirms there is no fixed definition of full time education and provision such as one-to-one tuition need not be full time. During December 2024 to April 2025 Y’s school was providing 6 hours of one-to-one home tuition to Y per week. Mrs X complained the Council was not providing full time education. However, some education provision need not be full time. Therefore, I cannot say 6 hours one-to-one home tuition per week was not suitable education for Y. As stated in paragraph 30, the Council should have considered whether the school's education provision for Y was suitable. If did not do so.
32. Paragraph 19 explains why I cannot usually investigate events after someone has an appeal right to the Tribunal. The Council issued Y’s final EHC Plan in April 2025. Mrs X has appealed to the Tribunal against the special educational provision and educational setting named in the Plan. The Council is of the view the setting and provision is suitable and available. Mrs X disagrees. The Tribunal will need to reach its own decision. Therefore I cannot investigate events after April 2025.
33. Mrs X and Y were distressed by the uncertainty caused by the Council’s failure to consider whether the school’s education provision for Y was suitable and whether the council owed Y a section 19 duty from December 2024 to April 2025. Mrs X and Y did not know whether Y’s education provision would have increased if further consideration had taken place.

Complaint response

34. The Council’s complaint response told Mrs X it was only responsible for alternative education provision when a child had an EHC Plan or was not on a school roll. This was wrong. This is fault. This distressed Mrs X.
35. I have no issue with the Council’s alternative provision policy. The Council has accepted that the complaint response mis-represented the policy. This appears to have been an isolated incident and not part of a wider systemic issue.

Remedy

36. I cannot say that Y’s education provision would have been different from December 2024 to April 2025 if the Council had considered whether the school's provision was suitable. However, Mrs X and Y suffered distress due to the uncertainty caused by the Council’s failure to consider this. I am recommending a payment of £150 to Mrs X for the distress caused to Mrs X and Y. This is in line with our guidance on remedies.

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Action

37. To remedy the outstanding injustice caused to Mrs X and Y by the faults I have identified, the Council has agreed to take the following actions within 4 weeks of my final decision:
• Apologise to Mrs X for the failure to assess whether Y was receiving suitable education. We publish guidance on remedies which sets out our expectations to remedy injustice. The organisation should consider this guidance in making the apology.
• Pay £150 to Mrs X for the distress caused to Mrs X and Y by the failure to assess whether Y was receiving suitable education.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman