Summary: Mrs X complained the Council did not provide her child, Y with appropriate alternative education when they became unable to attend school. The Council was at fault for a delay in responding to Mrs X’s initial request for alternative provision. However, it has already offered a suitable remedy for any injustice this caused. I have made a service improvement to prevent recurrence of the fault. There was no fault in the Council’s decision not to provide Y with alternative provision.

The complaint

1. Mrs X complains the Council did not provide appropriate alternative education for her daughter, Y, when she became unable to attend school due to her health needs.
2. She says this has caused considerable distress and frustration and that Y has missed out on educational provision.

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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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).

Back to top

What I have and have not investigated

8. I have investigated Mrs X complaint from June 2024 when she raised her request for support with alternative provision to June 2025 when the Council provided its final complaint response.
9. I have not investigated any matters after June 2025, these are new matters and would be subject to a new complaint to the Council in the first instance.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant Law, Policy and Guidance

12. 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.
13. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)
14. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)

Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision; and
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;

15. When considering whether to provide alternative provision, councils must have regard to statutory guidance, Arranging education for children who cannot attend school because of health needs (Dec 2023). This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged to deliver suitable education outside of school.

What happened

16. Mrs X’s child Y has special educational needs (SEN), an autism diagnosis and a pathological demand avoidance (PDA) profile. In early May 2024, after struggling to attend a previous school, Mrs X enrolled Y at school B on a three-day flexi schooling option, with elective home education (EHE), which Mrs X was responsible, for remaining two days a week.
17. In late June 2024, Mrs X asked the Council to provide alternative provision for Y. Mrs X said Y was unable to attend school B due to traumatic school experiences. She advised the Council that she had organised play therapy, 1:1 coaching and stable management at an accredited alternative learning provision while Y was unable to attend school. She provided Y’s diagnosis reports and Y’s clinical assessment.
18. In early July 2024, after not receiving a response, Mrs X contacted the Council again. She said school B has advised that Y’s nonattendance was a safeguarding concern, may lead to her receiving fines and it had asked her to de-register Y. Mrs X said she did not want to de register Y as it was important they received the correct education.
19. In mid-July 2024 Mrs X, after no update from the Council, proposed a package of learning she wanted in place for Y for the beginning of the next school year.
20. In early November 2024, school B submitted a section 19 referral to the Council for Y.
21. The Council discussed Y’s referral at a section 19 panel meeting in mid-December 2024, it decided:
• school B would be advised about next steps to re-engage Y back into school;
• without medical evidence, consideration should be given to its non-attendance process; and
• school B were making reasonable adjustments, working with Y’s family and the school could meet Y’s needs. It decided it did not owe a section 19 duty but would monitor the situation.
22. The Council advised Mrs X of the panel’s decision in mid-January 2025. It apologised for the delay in communicating this with her.
23. At the end of January 2025, the Council provided advice to school B. It said with no Education Health Care needs assessment (EHCNA) request or medical evidence relating to any diagnosis it recommended a meeting with Mrs X in the first instance. It would support the school through the next steps depending on the outcome of this.
24. After the school meeting Mrs X raised concerns that Y’s attendance was still unauthorised. She said Y’s private clinical report, produced in November 2024, said they were unable to cope with a structured learning environment and recommended Education Otherwise than in School (EOTAS) be sought for eventual reintegration back to mainstream. She advised that a GP note was to be issued to cover absence on medical grounds.
25. At the end of February 2025, Mrs X provided medical evidence to school B. The Council advised the school to contact its education access team so it could advise if it met the requirements for a medical referral to be made.
26. At the start of April 2025, Mrs X made a stage one complaint to the Council, she said
• the Council had failed in its section 19 duties to provide Y with alternative provision; and
• she required compensation for the provision she had organised for Y over a 12-month period and for the distress the Council’s lack of action had caused.
27. At the end of April 2025, a medical needs referral was made by school B for Y.
28. At the start of May 2025, the Council responded to Mrs X’s stage one complaint, it said:
• it had not followed up on communications as it should and upheld this part of her complaint.
• school B had made attempts to engage Mrs X and Y;
• Mrs X had advised school had offered to send Y work home and provide access to a play therapist. As Y was on flexible education contract with the school, this was what the Council would expect. Additional activities arranged by Mrs X were her decision to make; and
• it was undertaking communication training to ensure parents were responded to effectively.
29. Mrs X escalated her complaint, she said:
• the Council, not the school had the duty to provide alternative education;
• Y had been out of school for over a year and the school had only provided one text book, an offer of an unsuitable play therapist and had not sent any craft projects;
• She had not received any response to her suggested alternative provision package for Y;
• She was entitled to compensation as Y was enrolled at a Council school; and
• Y remained without access to suitable education to meet their medical needs.
30. The Council’s response to Mrs X’s stage 2 complaint said:
• the Council expects schools to provide a suitable education;
• the process for requesting section 19 support for pupils who cannot attend due to health needs is via a medical needs referral, this had been submitted and required Mrs X’s consent to be considered. It was aware Mrs X had been happy to support a medical needs referral back in July 2024 but no referral was submitted and so the Council had been unable to decide about alternative provision at this point;
• Mrs X had agreed to provide Y’s education for two days as part of the school B’s flexi schooling arrangement. Y’s unauthorised absences were reviewed in December 2024 and the school was advised to make a medical needs referral. Mrs X had provided evidence in February 2025 and a referral was submitted in April 2025;
• it had not responded to Mrs X’s request for alternative provision in June 2024 as it should. Had it done so the school could have made an earlier medical needs referral and if consent and evidence had been provided, Y may have been provided with alternative provision; and
• it offered a remedy payment of £675 for the delay in communication, between June 2024 and the school being advised to submit a medical needs referral form in December 2024.
31. At the end of June 2025, a panel decided not to accept the medical evidence as school B was able to meet Y’s needs.
32. Mrs X remained unhappy with the Council’s action and responses and asked the Ombudsman to investigate.

Analysis

33. The Ombudsman is not an appeal body. Our role is to consider whether there was any fault in how the Council reached its decision when considering any relevant legislation and guidance. If there was no fault in how the Council made its decision, we cannot question the outcome. A difference of opinion is not evidence of fault.
34. The Council became aware Y was unable to attend school in June 2024. The Council should have considered Y’s circumstances and decided at the time whether it owed a Section 19 duty. The Council delayed responding to Mrs X’s request for support until January 2025 when it decided, after panel, it did not owe Y a section 19 duty. The delay in considering its Section 19 duty was fault. The Council has offered Mrs X a suitable financial remedy for the injustice this delay caused.
35. When it did consider its Section 19 duty however it did so without fault. The Council considered relevant information and the evidence available to it at the time and decided Y’s school was suitable and accessible. On balance, it is likely the Council’s decision would have been the same had it been made earlier. I am satisfied the Council’s decision was made without fault.
36. Having reviewed the evidence on file, I am also satisfied the Council has continued to monitor its section 19 duty towards Y, including providing ongoing support and advice to school B and reviewing its decision after receiving the medical evidence in April 2025.

Back to top

Action

37. Within one month of the final decision, the Council will take the following action:
1. Remind officers by way of training or a team briefing, the Council has a statutory duty to consider if it owes a Section 19 duty, as soon as it becomes aware that a child is not attending school because of a permanent exclusion, an illness, or for any other reason.
38. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

39. I found fault causing injustice, already suitably remedied by the Council. The Council has agreed to a service improvement to prevent recurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman