Summary: Mrs X complains the Council failed to make alternative provision for her son Y when he could not attend school and provided inadequate responses to her complaints. We find the Council at fault for its complaint response which caused Mrs X uncertainty. The Council has agreed to apologise.

The complaint

1. Mrs X complained the Council failed to carry out its duty to make alternative educational provision for her child Y. In particular she complains the Council failed to:
1. Make suitable educational provision under its section 19 duty for Y who became unable to attend school due to anxiety and other health conditions.
2. Provide timely and adequate responses to her formal complaints. 
2. Mrs X says the Council’s failings led to Y suffering isolation, loss of confidence and loss of educational progress. She also said it caused her significant distress and financial hardship.
3. She would like the Council to apologise, provide a financial remedy, reimburse her expenses and review internal processes and staff training.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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

Law and guidance

Section 19 duty

10. 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.

Establishing a section 19 duty

11. 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.
12. 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.

Arranging person centred provision

13. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
14. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

Early intervention

15. Alternative provision can support early intervention in mainstream schools to improve school capacity and capability to respond to rising issues over behaviour, attendance, mental health or other needs. Interventions can reduce the likelihood of children becoming persistently or severely absent, reducing preventable exclusion and the need for longer term placement into alternative provision.
16. Early intervention can take the form of outreach work, supporting children whilst they remain at their home school. This might be through direct work with individual children or their parents, or more general work to build capacity in the home school to address behaviour or other issues before they escalate. (Arranging Alternative Provision. A Guide for Local Authorities and Schools. Department for Education)

What happened

17. Y started school year 1 in September 2023.
18. Mrs X said Y stopped being able to attend school from May 2024. She said this was because he had pathological demand avoidance and anxiety.
19. The Council was aware of Y’s low attendance in September. A Council Educational Psychologist (EP) became aware through contact with Y’s school. The EP spoke to Y’s parents and arranged a joint meeting with the school.
20. At the meeting they agreed some steps with the hope of increasing attendance. This included planned time in school with an Emotional Literacy Support Assistant (ELSA)
21. At the beginning of October Y’s school made a section 19 referral to the Council with input from the EP.
22. The Council considered the referral at a panel meeting later in October. It decided it had a section 19 duty. It decided the alternative provision would be met by commissioning a specialist education provider to support Y’s school to improve his attendance. I will refer to the provider as Provider A.
23. Provider A had a meeting with Y’s school, his parents and the EP.
24. The ELSA started sessions at school in November. They were about once a week. They were short visits to school. Records of the sessions show Mrs X reported Y refused to attend school on about half the occasions. On the other half of the occasions Y agreed to sit in the classroom for short periods.
25. Also in November the school and Y’s parents had a meeting to review progress. Y’s parents said they had visited a different specialist education provider that they wanted Y to attend. I will refer to this as Provider B.
26. In early December Y saw a doctor that had seen him in the past. The doctor wrote a letter that said Y refused home education apart from coding and refused to leave the house to go to home education groups.
27. Throughout January the sessions with the ELSA continued. The records show the same pattern of non-attendance and short sessions in the classroom.
28. At the end of January there was a meeting with the Council EP, school, Y’s parents and Provider A. It was recorded Y was currently refusing to leave the house.
29. At the beginning of February the Council said it had a meeting because Y was not attending school. The Council made contact with Y’s school to gather more information.
30. Later in February the Council had another meeting with senior officers and a Council EP to discuss Y. The Council said it discussed Provider B, but was concerned Y was not leaving the home so may not be able to attend a placement. The Council decided to consider tuition in the home as alternative provision.
31. The Council had a meeting with Y’s school to consider tuition in the home. The Council recorded Y’s school said it would not be possible because Mrs X wanted the home environment to be separate from a learning environment.
32. At the end of February the EP wrote a report as part of a separate process regarding Y’s education. It referred to short sessions with the ELSA to provide a foundation for re-engagement at his school.
33. At the beginning of March the Council decided to refer Y to its Mental Health Improving Attendance Team (MIAT). Mrs X consented to the referral to MIAT.
34. MIAT’s stated role was to provide a range of services including mental health support, school advice, and family assistance aimed at improving school engagement and attendance. It offered regular support sessions. The intention of the MIAT referral was to work with Y and his parents to re-engage him with school.
35. At the end of April Mrs X made a stage one complaint to the Council. She complained it had arranged no alternative provision. She said she wanted the Council to consider a placement at Provider B or similar setting.
36. In mid-May Mrs X escalated her complaint to stage two. The Council had not responded to her stage one complaint.
37. MIAT worked with Mrs X and Y. It completed three home visits. MIAT stopped working with Mrs X because she withdrew consent. Case notes record this was because she believed the issue was the lack of provision, not parenting approach. MIAT formally notified Y’s parents and other parties it was no longer involved in early June.
38. The Council started consulting with educational placements as part of a separate process regarding Y’s education. It sent consultations to placements including Provider B.
39. The Council responded to Mrs X’s complaints in mid-June. The Council said it considered Y had access to a suitable education placement at his school. It said it may be able to offer a placement at Provider B as part of the separate process regarding Y’s education.
40. Mrs X complained to us in July.

Analysis

41. I address each part of Mrs X’s complaint in turn below.

a) Complaint the Council failed to make alternative provision for Y

42. Based on the evidence I have seen, the Council was not aware of Y’s non-attendance until the start of the school year in September 2024.
43. The Council established it had a section 19 duty in October. It took account of evidence from its EP, who had gathered Y’s parents’ views, and from the referral and supporting documents from Y’s school.
44. I find the actions by the Council in considering and establishing its section 19 duty were in line with the law and guidance. I therefore do not find it at fault for its initial response.
45. The Council considered the evidence and initially decided to meet its section 19 duty by arranging for Provider A to support Y’s school to improve his attendance. This took the form of the ELSA sessions from November to January 2025. The Council reviewed Y’s progress during the period.
46. I find the Council made its decision by taking account of the relevant available evidence. I have seen no evidence the Council directly referred to early intervention as explained in paragraphs 15 and 16. However, I find its decision broadly aligned with the guidance on person centred provision and that alternative provision can support early intervention.
47. For these reasons I find no fault in how the Council made its decision to arrange alternative provision by using Provider A.
48. When the Council received information that Y was refusing to leave the house it reconsidered the alternative provision.
49. It considered a placement with Provider B. It said it decided not to arrange provision with Provider B because it was concerned Y would not be able to attend a placement if he was not able to leave the house. It considered tuition in the home. It decided not to arrange tuition in the home because Mrs X would not agree.
50. I do not know if the Council considered the doctor’s letter from December, however I note the contents broadly aligned with the decision not to arrange tuition in the home.
51. The Council then decided to arrange provision by using MIAT to work with Y and his parents, to enable him to attend school.
52. I find the Council’s decision followed consideration of alternative options and took account of evidence from the EP, Y’s school and Y’s parents.
53. I find its decision to use MIAT continued to broadly align with the guidance on person centred provision and that alternative provision can support early intervention.
54. For these reasons I find no fault in how the Council made its decision to arrange provision by the MIAT referral.
55. The MIAT referral formally ended at the beginning of June. The records show this happened because Mrs X withdrew consent. I acknowledge that Mrs X felt MIAT was not working. However, I find it was still available as alternative provision for Y if she chose to provide consent.
56. I acknowledge Mrs X wanted the Council to fulfil its section 19 duty by providing a place at Provider B, or a similar setting. I also acknowledge Mrs X did not recognise the involvement of Provider A or MIAT as alternative provision. I also note Mrs X may not have been aware the Council had considered tuition in the home.
57. However, our role is not to ask whether we agree or disagree with an organisation’s decisions. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
58. In my analysis above I have considered the steps the Council took to consider its section 19 duties, and the information it took account of when deciding how to make provision. I have found no fault in how it made its decisions and I therefore cannot question whether that decision was right or wrong. This is in line with paragraph 5.

 b) Provide timely and adequate responses to her formal complaints. 

59. The Council’s complaint policy says its will aim to respond to stage one complaints within 10 working days. It will aim to complete stage 2 complaint reviews in 20 working days.
60. In this case Mrs X made a stage one complaint on 30 April 2025. The Council should have replied by 15 May. It did not do so. This was fault.
61. Mrs X made her stage two complaint on 22 May. The Council responded to her stage 2 complaint 20 working days later on 20 June. This was in line with its policy.
62. I have considered the Council’s stage 2 response.
63. It acknowledged the delay and failure to respond to Mrs X’s stage one complaint. It apologised. I find the apology for the delay meets the standard we expect. I therefore make no further recommendations regarding that fault.
64. The Council provided a summary of the events. It addressed section 19 by explaining it considered Y had access to a suitable placement at his school. It acknowledged Y’s significant absence and referred to Mrs X’s withdrawal of consent for the involvement of MIAT.
65. I find the Council’s overall complaint response adequately explained its understanding of the complaint, its overall decision, and details of outstanding actions.
66. However, I find the Council did not provide an adequately clear explanation of the reasons why it decided Y’s school was a suitable placement in line with its section 19 duties. I also note the response did not give Mrs X details of how to escalate the matter to the Ombudsman if she remained dissatisfied.
67. For these reasons I find the Council’s complaint response fell below an adequate standard. This was fault that caused Mrs X injustice in the form of uncertainty. I recommend the Council apologise to Mrs X to remedy the injustice.

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Action

68. Within four weeks of the date of this final decision the Council should apologise to Mrs X for the uncertainty caused by its inadequate complaint response.
69. 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.
70. The Council should provide us with evidence it has complied with the above actions.

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Decision

71. I find no fault for part a) because the Council made its decisions about its section 19 duties by taking account of the relevant evidence and in line with the guidance, I find fault for part b) because the Council did not provide an adequate complaint response. The Council has agreed to apologise to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman