Summary: Mr X complained the Council failed to provide alternative provision for his child, Y, when they were unable to attend school from May 2024. We find the Council at fault for failing to consider whether Y required alternative provision. This caused Mr X frustration and uncertainty. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Mr X complained the Council failed to provide alternative provision for his child, Y, when he was unable to attend school from May 2024. Mr X told us the matter has caused himself and his family frustration and Y has missed out on education. Mr X would like the Council to provide a financial remedy and improve its services.

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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. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. The Council issued a final Plan for Y in March 2025. Mr X submitted an appeal against this Plan as he did not agree with the setting named (school A).
11. A further Plan was issued in May 2025 which named school A until July 2025 and a new setting, school B, from September 2025.
12. Y did not attend school A because his parent’s disagreed it was a suitable placement. Y’s parents used their right of appeal against the setting named in section I and this matter was subject to a Tribunal appeal.
13. I have not investigated any matters relating to the provision of education or special educational provision after the final Plan was issued in March 2025.

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How I considered this complaint

14. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Section 19 duty

16. 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.
17. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
18. 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.

Education, health and care plan

19. 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. 
20. 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.

What happened

21. The following is a summary of key events. It is not intended to be a detailed chronology.
22. In May 2024, Y received a one day suspension from his school, school A.
23. Following Y’s suspension, Mr X’s advocate wrote to the school to ask it to agree to and sign a ‘plan of care’. The letter sent alongside this proposed plan of care stated Y would not return to school unless the plan was in place. The letter also stated Y would return to school for morning sessions only and all other work was to be continued at home.
24. The school did not agree to sign the proposed plan of care and Y did not return to school.
25. The school contacted the Council’s attendance team for advice at the end of July 2024.
26. Y did not return to school in September 2024 for the start of the school year. The school made the Council aware Y was not attending school.
27. Mr X told us the Council agreed to complete safeguarding visits. In response to our enquiries the Council told us it has no record of any agreement to complete safeguarding visits and the officer who completed the initial home visit failed to record any details of the visit.
28. Between September 2024 and January 2025, the school completed monthly safeguarding visits and provided Y with work packs to complete at home.
29. Following a parental request for an Education, Health and Care needs assessment, the Council issued a final EHC Plan for Y in March 2025. This Plan named school A. Y’s parents appealed this Plan.

My findings

30. The Council were contacted by the school in July 2024. From this date the Council should have taken steps to consider whether it owed Y a duty to secure access to suitable, full-time provision. It is not clear, even on the balance of probabilities, whether the Council would have considered it owed Y a duty. This is because there is clear evidence the relationship between the school and Y’s parents broke down and Y’s parents decided to keep him off school when their proposed plan of care was not agreed to. The school continued to offer reintegration, 1:1 learning support and home learning to Y. The Council’s failure to consider its section 19 duty is fault which caused Mr X distress, frustration and uncertainty.
31. The Council failed to make a record of the home visit which was completed in September 2024. This means there is no evidence to determine what agreement was made in relation to safeguarding visits. This is fault which caused Mr X uncertainty and frustration.
32. The Council accepts it should have had oversight of Y’s case from July 2024, however the staff involved failed to keep records and inform the Council’s inclusion service of Y’s attendance difficulties. The Council recognises it failed to consider its section 19 duty, and this has caused distress and uncertainty to Y and Mr X. The Council has offered to apologise to Mr X and make a symbolic financial payment of £1000. I find this to be a suitable remedy for the injustice caused.
33. The Council has also said it will complete the following actions to prevent similar occurrences:
• The Council will review the systems and structures it has in place that ensure school leaders and the attendance team are aware of any pupils who have not been attending school for a sustained period of time, ensuring this is automatically flagged on the system so it cannot be missed.
• Any actions and timelines agreed between schools and the Council’s attendance team will be formally recorded.
• Where a pupil has missed 15 days of school, a referral will be made to the Council’s ‘access to education’ panel.
• The Council will consider mediation for parents and school leaders where the relationship has clearly failed.
• New headteachers in the Council’s area will be given a secure understanding of attendance procedures and processes.
• The Council will provide further information for schools around the correct coding for absences.
34. I consider these service improvements to be suitable for the faults and injustice identified so I have not made any further service improvement recommendations.

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Action

35. Within one month of the final decision the Council will:
• Apologise to Mr X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £1000 in recognition of the injustice caused to Y and Mr X by the Council’s failure to consider its section 19 duty and record details of the September 2024 home visit.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman