Summary: We found there was no fault in the Council’s decision to decline to provide alternative education to Miss X’s daughter under Section 19 of the Education Act. There was delay in the Council’s investigation, which represented fault by the Council. However, we found the delay did not cause injustice in itself.

The complaint

1. Miss X complains that:
2. The Council turned down her application for an Education, Health and Care Plan (EHC Plan) for her daughter Y, and there were problems with mediation prior to her appeal.
3. Her daughter, Y, did not receive an education since a failed transition to new school year in September 2024. She complained her daughter had not been provided with a suitable education since that time. This had a detrimental impact to her daughter’s education and impacted her mental health. Miss X also complained she has been unable to work and the situation also had a detrimental impact on her.

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The Ombudsman’s role and powers

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. The law says we cannot normally investigate a complaint or parts of a complaint if 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)
6. 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)
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. We cannot investigate the Council’s reasons for not agreeing to an Education Health and Care Plan (EHC Plan) or matters that relate to Miss X’s appeal. This is because Miss X has the right to appeal the decision and raise these issues with a Tribunal. We have considered the second part of Miss X’s complaint about her daughter’s education.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss 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

Section 19 of the Education Act 1996

11. Section 19 of the Education Act states 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. 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)

Attendance

13. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.

Part-time timetables

14. 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. 

Our Focus Report ‘Out of school, out of sight’ updated August 2023

15. 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.
16. 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.

What Happened

17. Miss X’s daughter, Y, moved year groups from September 2024. Y struggled with this and her attendance reduced as a result. At around the same time, Miss X applied for an Education Health and Care Plan (EHC Plan) for Y, which the Council declined.
18. The Council’s records indicate that the school contacted its attendance helpline in September 2024. The records noted Y had a diagnosis of ASD, ADHD and OCD. However, the school considered it could still meet Y’s needs. The school told the Council there was no medical information showing Y could not attend. At the time, the Council advised the school to create an attendance contract and have regular review meetings.
19. The Council says the school raised concerns about Y’s lack of regular attendance in late October at a regular meeting.
20. Miss X asked the school to provide alternative provision for Y while she was not able to cope with attending school full-time. I understand this prompted the school to make a referral to the Council’s medical pathway for advice about absence due to medical needs and the potential for alternative provision. The Council told the school to produce a reintegration timetable, planning for Y’s phased return to school. It proposed Y should attend school 20% of the time, with the intention that this would be built up over time. The school put this in place for the Autumn term.
21. In January Miss X complained to the Council. Her complaint stated Y was only attending school 20% of the time while on a reintegration timetable. She stated the school made a referral for alternative provision in December but nothing had happened. She considered the Council was not meeting its legal duty to provide an education.
22. The Council responded to the complaint on 5 February. It apologised there had been a delay following up the request for alternative provision. The Council stated statutory guidance was for schools to manage health needs and continue to educate a child and provide support, however, if a school could not meet a child’s health needs, the Council should consider putting alternative provision in place. The Council noted interactions staff had had with the school and the approach taken to date. It Council acknowledged its response to Miss X’s request had been delayed. It stated it would investigate by the end of February and respond further. Due to the delay it upheld Ms X’s complaint. The Council also provided a link to help and support with emotionally based school avoidance.
23. The investigation did not reach a conclusion by the end of February. The Council met the school in March. After considering the circumstances, the Council considered the issue was an attendance concern and the proposal remained that the school would offer an attendance and re-integration plan to be implemented at the start of the summer term. It stated this would be monitored by the school and Access and Inclusion Officers.
24. In early April the attendance contract between Miss X and the school was cancelled. The school stated this was due to a lack of engagement. The Council discussed Y’s situation with the school again in April and May 2025 and there is evidence various professionals were consulted. The Council records noted the issues that Miss X raised about Y’s medical and mental health. However, it decided that Y’s school could offer support to overcome barriers to attendance that had been raised. It noted this support took account of the comments of an Educational Psychologist which were provided in late 2024 as part of the EHC Plan Needs Assessment. As such, it considered the school could continue to meet Y’s needs. As the Council decided her school remained suitable for Y, it expected the school to provide Y’s education and it decided alternative provision by the Council was not appropriate.
25. In the Council’s final response to the complaint in May 2025, it reiterated its apology that its investigation had been delayed. However, it stated it was confident the school was carrying out its duties and the Council considered this an attendance issue. It stated it had arranged for officers from its Special Educational Needs team (SEND) to make contact with the school to ensure the school was aware of the support that they could obtain from the Council. The Council apologised again for the delay in investigating and coming to a decision.
26. The Council noted this was a complex case. In June, it decided, after investigating and taking legal advice, that it should issue a Notice of Improvement to Miss X about Y’s attendance. There were also Team around the Family (TAF) meetings being held to discuss the issues and consider what support could be provided.
27. In September 2025 Y moved to a new school which she is attending with some support. The Council explained its position remains that the previous school was able to meet Y’s needs.

What should happen

28. If a pupil is not attending school we expect councils to consider their individual circumstances and determine whether it is reasonably practicable to expect them to attend the school place they have. In reaching this decision we would expect the Council to take account of any medical or mental health issues the child is experiencing and whether the school can meet the child’s needs. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]).
29. I found no fault in the Council’s decision not to provide alternative education. I say this because the evidence shows the Council had been in contact with the school and that it had regard for the situation and Y’s circumstances. The Council also took advice and various professionals were involved. The school was offering support and the Council considered it was able to meet needs, so the placement was available and accessible to Y. Ultimately, the Council decided that because the placement was available and appropriate, it should treat the situation as an attendance issue and its Section 19 duty was not engaged. It did not consider it was appropriate for it to provide alternative education under Section 19 of the Education Act as a result.
30. While I understand the circumstances were difficult for Miss X and for Y, I found this was a decision the Council was entitled to reach, and it made its decision without fault. As, a result I have no grounds to question it.
31. There was a delay in the Council investigating the situation when it was raised by Miss X in her complaint in January. It recognised and apologised for this in its responses to Miss X’s complaint. While this delay was fault by the Council, I found that because the school was available and accessible and working towards reintegrating Y to school during their period, the delay in the investigation did not cause significant injustice in itself, and the apology already offered by the Council is an appropriate remedy for the delayed investigation.

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Decision

32. I find fault in the delayed investigation, but this did not cause injustice. I found there was no fault in the Council’s decision not to provide alternative education.

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Investigator's decision on behalf of the Ombudsman