Summary: Mrs X complained the Council falsely claimed she removed her son, Y, from his school and the Council had not provided any alternative education because of this. Mrs X said this distressed her and Y has missed education. The Council was at fault. It did not provide Y with education for one and a half academic terms and provided wrong information in the complaint response. This frustrated Mrs X and Y missed education. The Council agreed apologise and make a financial payment.

The complaint

1. Mrs X complained the Council falsely claimed she removed her son, Y, from his school and the Council had not provided any alternative education because of this. Mrs X said this distressed her and Y has missed 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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

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. 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.
10. 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)
11. 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)
12. 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? updated August 2023
13. 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.

14. 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.
15. 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

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. Y has an EHC Plan. The plan named school B. A trusted adult could not support Y from September 2024. This impacted Y’s attendance. Mrs X told the Council Y was struggling to attend school B.
18. School B held Y’s annual review in October 2024. School B said it could not meet Y’s needs and asked the Council to look for an alternative placement. The following day school B told the Council it would end Y’s placement in six weeks. Mrs X asked the Council to provide alternative education the following week.
19. The Council started to consult with education providers for tuition for Y. The Council received several positive responses to its consults.
20. The Council agreed provision C would provide tuition for Y in mid-November 2024. After the first session, Mrs X asked the Council for a different tutor. The Council asked provision C to provide a different tutor.
21. At the end of November 2024, the Council had an agreement with provision C to provide Maths and English tuition for nine hours per week.
22. Provision C completed work with Y from November 2024. The session logs record mentoring work, but do not provide any evidence of any education or tuition.
23. Mrs X complained in March 2025. She complained Y had no education since November 2024.
24. The Council issued its complaint response in April 2025. The Council said it understood Mrs X decided to remove Y from school B. The response said it was consulting with education providers and offered to meet Mrs X.
25. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to find Y a school.
26. In response to my enquiries the Council confirmed Mrs X did not agree to electively home educate Y and there was a gap in alternative provision from March 2025.

My findings

27. Councils 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”.
28. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
29. The Council has accepted Mrs X did not electively remove Y from school. It is unclear why the Council said she had in its complaint response. This statement meant information in the complaint response is wrong. This is fault, frustrating Mrs X.
30. The Council completed several referrals for tuition when it was aware Y was not attending school. The Council noted tuition started but only evidenced mentoring support. It had not evidenced any education or tuition.
31. The Council has not evidenced any decision making to confirm mentoring was all Y could engage with at the time. Without this decision making, and no evidence of any education provided, I cannot say the Council provided Y with suitable education, required under the act referenced in paragraph 9. This is fault. Y has missed education since November 2024. I am only recommending a remedy until the Council issued its complaint response in April 2025. Y missed one and a half academic terms of education.
32. I would usually make service improvement recommendations in a case such as this, but I can see other Ombudsman investigations made these. The Ombudsman is actively monitoring the Council’s learning from these recommendations.

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Action

33. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for the frustration caused by the incorrect information in the complaint response and not providing Y with any education for one and a half academic terms. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £1,500 for not providing Y with education for one and a half academic terms. This money should be used for Y’s benefit.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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