Summary: The Council failed to secure alternative provision for Mrs X’s child, Y, after they stopped attending school due to health reasons. This caused Mrs X and Y distress and uncertainty and meant Y did not receive suitable education between May 2025 and July 2025. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council did not secure alternative provision for her child, Y after Y stopped attending school due to health reasons. Mrs X also complained the Council said it could only accept mental health cases that have gone through a Child and Adolescent Mental Health Service (CAMHS). Mrs X said the Council’s guidance does not say this. Mrs X said this meant Y missed months of education at school, caused Mrs X distress and her husband had to take time off work.
2. Mrs X wants the Council to apologise, secure suitable full-time alternative provision for Y and take Y’s wishes into consideration. Mrs X also wants the Council to review its policies so it can consider different ways of securing alternative provision and consider Education otherwise than at school (EOTAS) for Y. Mrs X wants the Council to be fined for failing to fulfil a statutory duty.

Back to top

The Ombudsman’s role and powers

3. 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).
4. 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).
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

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 have had an opportunity to comment on my draft decision. I have considered any comments before making a final decision.

Back to top

What I found

The Law

Alternative provision

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. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)).
17. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA).
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
19. 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]).
20. 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
21. 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.

22. 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.

The Council’s policy

23. The Council’s policy for the education of children and young people unable to attend school because of health needs says the Council is responsible for ensuring pupils with health needs are not at home for more than 15 working days without education. The policy says this can be 15 consecutive days or cumulative days with the same medical condition, and the Council will liaise with medical professionals to minimise the delay in starting support.
24. The policy says the Council will arrange suitable full-time education, or as much education as the child’s health allows, for children of compulsory school age who cannot receive suitable education because of illness. The policy says the Council need to ensure it provides the child with a good quality education.
25. The policy says there are circumstances where a school can arrange to deliver suitable education to a student who cannot attend because of health needs. There is no need for the Council to become involved in the arrangements unless there are concerns the education the school is providing the child is not suitable.

Background

26. Y has autism and sensory needs and has shown emotional-based school avoidance since a young age.
27. In May 2025, an educational psychologist said Y’s autism meant they were likely to struggle with the increased educational and social requirements of moving up school years. The report also said the parents had applied for an Education, Health and Care Plan (EHC Plan), but this had been declined. At the time of the report, the parents were considering appealing the decision.

What happened

28. In October 2024, Y struggled with full-time education and was moved onto a part-time timetable in school. The educational psychologist’s report completed in May 2025 reflected that Y had struggled to get to school consistently since December 2024.
29. Mrs X complained to the Council in April 2025. Mrs X complained the Council had not responded to her and about its failure to provide Y with a suitable alternative education. The Council responded in late April 2025, saying it was working with the school to make sure it had satisfactory provision in place for Y. The Council said it had a meeting planned with the school to discuss the support and provisions for Y. The Council said that for mental health cases, it could only accept cases that had been assessed through the CAMHS process, as their consultants were best placed to approve medical tuition. The Council told the Ombudsman that medical tuition was not in place for Y as it had not met the criteria.
30. On 5 May 2025, Mrs X escalated her complaint to stage two. Mrs X told the Council this was because it had not fully addressed or resolved her concerns at stage one and it had not secured a suitable alternative education for Y.
31. The educational psychologist visited Y’s school in April 2025 and the family home in May 2025 for meetings about Y’s needs and education. The educational psychologist’s report from 7 May 2025 said their involvement was because of concerns about Y’s attendance at school. The report said Y’s parents were supportive, but they could not offer Y a home education.
32. The educational psychologist’s report said Y had reached the point of burnout and feared returning to school. The educational psychologist recommended the Council consider an alternative approach to Y’s education at that time, with a view to gradually increasing Y’s skills of dealing with busy and less predictable environments. The report also said Y could do online learning before moving on to one-to-one learning with a tutor and then slowly reintroducing them to group work.
33. On 8 May 2025, the Council responded to Mrs X’s stage two complaint. The Council said it had seen no evidence to support Mrs X’s view that Y could not attend school due to their mental health, and it had not seen any reasons for Y not attending school. The Council said without a diagnosis or assessment of Y’s needs, it was difficult for it to assess what support they needed to attend school again. The Council said it did not see any merit in completing a review and so it considered the complaints process complete.
34. On 27 May 2025, Mrs X complained to the Ombudsman, saying the Council had not provided Y with a suitable alternative education, which meant they had missed months of school.
35. On 27 May 2025, the school told the Council that Y’s attendance at school was 35%. In response to our enquiries, the Council said it made a referral to the parent and family support advisor and arranged for a transition support worker and outreach support. The school arranged for Y to have online access to education so they could learn from home. The Council said there was evidence of regular check-ins online or in person, but it expected the school to manage this.
36. In October 2025, Mrs X told the Ombudsman Y was not attending school at all. Mrs X said the school had previously offered to provide some worksheets to Y, but this was not enough education and was not the same as having a teacher there to explain. Mrs X said Y was still not in school and had no mental health support or education for a year. Mrs X said the only education Y received in that time was what had delivered herself at home.
37. In December 2025, the Council told the Ombudsman it accepted there had been a gap in provision and it had given Mrs X conflicting information about section 19. The Council said the transition support worker visited Y at home six times over July and August 2025 and reported that Y engaged well but was anxious about returning to school.
38. The Council also told the Ombudsman that since it was restructured in April 2025, it had a new section 19 policy which means it now considered evidence from medical professionals other than just CAMHS when it decided about medical tuition.

My findings

39. The evidence shows that Y struggled to engage in full-time education from October 2024 and was placed on a part-time schedule to try and manage this. Y struggled to attend school from December 2024 and by May 2025, their attendance was an average of 35% for the year.
40. Between October 2024 and April 2025, it appears the Council was unaware that Y was struggling to attend school. In any event, the evidence shows the school was actively working with Y and Mrs X to try and get Y back into school during this time. The Council was not at fault for not considering its section 19 duty between October 2024 and April 2025.
41. It appears the Council became aware around April 2025 that Y was out of school. The evidence shows the Council failed to consider its section 19 duty and whether the educational materials the school was providing to Y were suitable for their needs. The evidence shows this remained the case until the end of the school year in July 25. This was fault. It meant Y missed around one term of education between April 2025 and July 2025. This caused Mrs X uncertainty and distress.
42. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
43. Considering Y received part-time education from October 2024 and the school were working with Y and Mrs X until April 2025, I have recommended £900 for the missed alternative educational provision and delayed transition between April 2025 and July 2025, in line with our Guidance on Remedies.
44. The Council also accepted it provided conflicting information to Mrs Y about the section 19 process. The Council’s stage two complaint response suggests it would only accept mental health cases that had been through CAMHS, rather than considering evidence from other medical professionals. This was fault. It caused delays to securing alternative provision for Y and caused Mrs X uncertainty over when and how the Council would secure the alternative education.
45. The Council has amended its section 19 policy since these events and it now considers evidence from medical professionals other than just CAMHS. This should prevent some delays experienced in this case in future and so no specific service improvements are required.

Back to top

Action

46. Within one month of the final decision, the Council has agreed to take the following action:
1. Review Y’s education to ensure it has considered suitable alternative provision and arrange a meeting with Mrs X to decide the best way to proceed with Y’s education.
2. Apologise to Mrs X for the uncertainty and distress caused by not securing alternative education for Y between April 2025 and July 2025 and for providing Mrs X with conflicting information.
3. The Council should also pay Mrs X £900 for Y missing around one term of suitable education between April 2025 and July 2025.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

48. I find fault causing injustice which the Council has agreed to remedy.

Back to top

Investigator's decision on behalf of the Ombudsman