Summary: Mrs X complained the Council failed to provide her child, Y, with suitable education when they were unable to attend school from April 2024. We find the Council at fault for failing to consider its section 19 duty between September 2024 and February 2026. This caused Y and Mrs X distress, uncertainty and frustration. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with access to suitable education when they were unable to attend school from April 2024. Mrs X told us her job and mental health have been significantly impacted and there has been a financial impact for the family. Mrs X also told us the wider family has been impacted, and Y has missed a significant period of school which has impacted their mental health. Mrs X would like the Council to apologise and provide a symbolic payment in recognition of the distress caused.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
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. 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)
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. Mrs X complained to us in July 2025. This means any events which took place before July 2024 are classed as a late complaint.
8. Mrs X complained about events dating back to April 2024. Mrs X told us she was unsure when the Council were first made aware of Y’s attendance difficulties and she asked the Council to complete an assessment of Y’s education, health and care needs in the hope this would support Y to access suitable education. Due the ongoing EHCP process, I believe it is reasonable that Mrs X did not complain to us sooner, so I have exercised discretion to investigate events from April 2024.
9. Following a Tribunal appeal against the Council’s refusal to issue an Education, Health and Care Plan following an assessment, the Council agreed to issue Education, Health and Care Plan in August 2025. The Council did not issue this Plan until February 2026.
10. Mrs X had a right to appeal the final Plan issued in February 2026 and it was reasonable for her to do so. For this reason, I have not investigated the Council’s actions in securing Y’s education after this date.
11. My investigation looks at the Council’s actions in considering its duty to secure Y access to suitable education between April 2024 and February 2026.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs 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

14. 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.
15. 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.
16. 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.
17. 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.
18. 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)
19. 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;
• 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;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

20. 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.

Issuing an EHC Plan following Tribunal

21. In accordance with the Special Educational Needs and Disability Regulations 2014, where the First Tier Tribunal issues an order for a Council to make and maintain an EHC Plan, the Council must issue the final Plan within 11 weeks of the order being made.

What happened

22. Y stopped attending school in April 2024. Between April and September 2024, the Council was not aware Y was unable to attend school.
23. At the end of September 2024, Mrs X submitted a request for an assessment of Y’s Education, Health and Care needs. Within the information submitted as part of this request, it was clear Y had not attended school since April 2024.
24. In October 2024 Y’s school arranged for online provision. Y accessed this for two weeks.
25. In October 2024, Y’s GP provided a letter which detailed Y’s school attendance difficulties and requested the Council support Y in accessing education.
26. The Council has not provided evidence Y was offered any further alternative provision between October 2024 and February 2026.
27. In June 2025, at a multi-agency meeting it was agreed the school would complete regular welfare checks and explore the option of a tuition robot. The Council has not provided evidence this was provided.
28. Following a Tribunal appeal, the Council agreed to issue an Education, Health and Care Plan for Y in August 2025.
29. The Council did not issue the final Plan until February 2026. This Plan named Y’s school in section I. Mrs X had a right to appeal this plan.

My findings

30. The Council failed to consider its section 19 duty once it was made aware Y was not attending school in September 2024. Although Mrs X provided supporting medical evidence which detailed Y was unable to attend school, based on the Council’s later decision to name Y’s school in the final EHC Plan, I cannot say, even on the balance of probabilities, whether the Council would have determined it owed a section 19 duty had it considered this in September 2024. The Council’s failure to consider the section 19 duty is fault which caused Y and Mrs X uncertainty, distress and frustration.
31. The Council failed to issue Y’s Education, Health and Care Plan in accordance with the timeframes set out in the SEND Regulations 2014. There was a delay of approximately 4 months in the Council issuing the final Plan. This is fault which caused Y and Mrs X distress, frustration and uncertainty.

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Action

32. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the delay in considering whether the Council owed a section 19 duty to Y, and the delay in issuing the final Education, Health and Care Plan. 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 £1500 in recognition of the injustice caused by the Council’s failure to consider its section 19 duty between September 2024 and February 2026, and the impact of the delay in issuing the final Education, Health and Care Plan following the Tribunal in August 2025. In line with our Guidance on Remedies, this payment is higher than £500 due to the prolonged amount of time it took the Council to consider its duty and the impact this had on Y and Mrs X.
33. Within three months of the final decision the Council will ensure it has a process in place for the team who assess Education, Health and Care needs assessment requests to ensure that cases are raised for review by the Surrey Attendance Service, as soon as possible when evidence suggests a child is not attending school, who will ensure advice is given to schools regarding referral processes and evidence required for LA section 19 consideration.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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