Summary: Mrs X complained how the Council dealt with the safeguarding concerns she raised about her son’s school. She also complained about the conduct of the Council’s attendance support team. We find the Council was at fault for failing to document it had property considered its section 19 duties. This caused Mrs X uncertainty and frustration. The Council has agreed to apologise to Mrs X, make a payment to her and implement a service improvement.

The complaint

1. Mrs X complained how the Council dealt with the safeguarding concerns she raised about her son’s (Y) school. She also complained about the conduct of the Council’s attendance support team (AST). Finally, she complained about the Council’s failure to name her preferred choice of school in Y’s Education, Health and Care (EHC) Plan.
2. Mrs X says Y has not received a suitable education. She also says the Council’s faults caused her severe stress and anxiety.

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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. 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)
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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).
8. 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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What I have and have not investigated

9. Mrs X appealed to the Tribunal about the Council’s decision (sent to Mrs X on 4 July 2025) not to name her preferred school and the content of Y’s EHC Plan. Therefore, I cannot investigate Mrs X’s complaint about the Council’s failure to name her preferred school in Y’s EHC Plan as she has used her appeal right.
10. 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).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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
11. Mrs X’s ongoing concerns about Y’s lack of education is linked to her appeal to the Tribunal. I have therefore not investigated what education the Council provided to Y after 4 July 2025.
12. The Council continued to send letters to Mrs X about Y’s attendance, including a fine, after it provided her with her appeal rights to the Tribunal. The Education Welfare Officer also contacted Mrs X. The Council’s view was that Y should be attending school. Mrs X disagreed and said the school was an unsuitable placement. She said the Council should not have continued to send her correspondence about Y’s attendance. Mrs X’s complaint about the actions of the AST is linked to her appeal to the Tribunal. If it we were to investigate, it risks trespassing on what the Tribunal is considering. Therefore, I have decided not to investigate the actions of the AST after 4 July 2025.

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How I considered this complaint

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

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What I found

Special educational needs

15. 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. 

Alternative provision

16. Section 19 of the Education Act 1996 says that the council 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.
17. 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.

Allegations against people who work with children

18. Following the introduction of ‘Working Together to Safeguard Children’ in August 2018 (statutory guidance), organisations and agencies working with children and families should have clear policies for dealing with allegations against people who work with children. Such policies should make a clear distinction between an allegation, a concern about the quality of care or practice, or a complaint. An allegation may relate to a person who works with children who has:
• behaved in a way that has or may have harmed a child
• possibly committed a criminal offence against or related to a child
• behaved towards a child or children in a way that indicates they may pose a risk of harm to children

The Council’s allegations against staff or volunteers policy

19. The Local Authority Designated Officer (LADO) is a person responsible for managing and overseeing investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.
20. The policy has a section on the difference between an allegation of harm and a concern. An allegation means the alleged incident has to be sufficiently serious to suggest that harm has or may have caused harm to a child. A low-level concern does not mean that it is insignificant. It could mean an adult may have acted in a way that is inconsistent with the staff code of conduct and does not meet the harm threshold/is not serious enough to consider a referral to the LADO. Incidents which fall short of the threshold could include an accusation that is second or third hand and the facts are not clear, or there is confusion about the account.
21. When informed of a concern or allegation, the LADO should consider whether further details are needed and whether there is evidence or information that establishes the allegation is false.
22. If the allegation is not demonstrably false and there is cause to suspect a child is suffering or is likely to suffer significant harm, the LADO should refer the matter to Children’s Social Care and ask them to convene an immediate strategy meeting.

Attendance

23. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
24. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

What happened

25. This chronology provides an overview of key events and does not detail everything that happened.
26. Y has special educational needs and an EHC Plan.
27. Mrs X emailed the Council in mid-February 2025. She said things were rapidly breaking down at Y’s school. She said she wanted to change the placement in Y’s EHC Plan because he was suffering from violence and bullying. The Council responded and said the school would need to hold an annual review. It asked Mrs X if she had contacted the school about the bullying and violence. Mrs X responded and confirmed she had contacted the school about the issues and was waiting for an annual review date.
28. The school held an annual review of Y’s EHC Plan in mid-March.
29. Mrs X contacted the Council a few days later. She said Y’s placement had broken down. She said she had contacted the school about the issues, but the placement was no longer right for him. The Council responded and reiterated its advice about the annual review process.
30. Mrs X provided the Council with a letter from Y’s therapist. This said that Y was experiencing anxiety because of the school environment.
31. The Council exchanged emails with the school in late March about meeting Y’s needs. The school said it could meet Y’s needs and there was no evidence to suggest it could not.
32. Mrs X emailed the Council in early April. She said the matter was now urgent as Y was not attending school. She asked it to set up an emergency review. She said Y had experienced serious sexual harassment from other pupils. She sent a follow up email and said the school was not sending any work home for Y. The Council responded and said Y’s school said it could meet his needs.
33. Mrs X emailed the Council and the school in June and reported an incident between Y and staff members from the school.
34. Mrs X sent further emails to the Council and made a referral to the Council’s safeguarding team. She said Y said a member of staff from the school made an inappropriate comment. She also said Y was continuing to experience safeguarding failures and bullying and therefore she was temporarily withdrawing him from school.
35. The LADO spoke to the school about the issues in Mrs X’s referral. They sent an email to the Council’s safeguarding team the following day. They said three of Mrs X’s allegations were low-level practice concerns, rather than safeguarding ones, and they should be responded to as part of the school’s complaints process. These concerns did not meet the threshold criteria.
36. The LADO also said Mrs X’s allegations about bullying and sexual harassment could warrant further investigation from a safeguarding perspective. However, these appeared to be third party issues, and the safeguarding team had not received referrals from any other parents about those issues. Therefore, there was insufficient information to meet the LADO threshold. Finally, they said there was one allegation that warranted some further information. They asked the school to ask Mrs X for some further information about that allegation. This would be addressed internally by the school as a practice matter. If any further information came to light as a safeguarding concern, then the school should refer it to the Council’s safeguarding team.
37. An officer from the Council’s AST emailed the school about Mrs X’s email about withdrawing Y from school. She asked whether the school had invited Mrs X to discuss the safeguarding incidents. The school responded and said it had previously offered Mrs X a meeting and it had dealt with her complaint. Its view was it could meet Y’s needs.
38. The AST officer emailed Mrs X in response to her email about withdrawing Y from school. She said she had spoken to the school. The school had explained the incident about the inappropriate comments had now been resolved. She said she was concerned Y was now persistently absent from school. Mrs X responded and said Y’s absence was not a matter of non-compliance. She said Y continued to experience bullying and she had not seen evidence of the school putting in place safeguarding measures to address the harm caused to him.
39. The school emailed Mrs X. It said it was contacting her to discuss her concerns after the LADO had reviewed the safeguarding referral. It invited her to attend a meeting to discuss her concerns further.
40. Mrs X complained to the Council the following day. She said it failed to investigate her safeguarding referral and instead referred her back to the headteacher at Y’s school.
41. An officer from the AST sent Mrs X a notice to improve letter at the end of June. The letter said Y had 54 unauthorised absences from school. The Council said it was giving her an opportunity to engage with the support offered by the school. It also said it would monitor Y's attendance.
42. The Council issued Y’s final EHC Plan in early July. It named Y’s school. Mrs X appealed to the Tribunal about the placement and provision in Y’s EHC Plan.
43. The Council issued its stage one response to the complaint on the same day. It said the LADO had contacted the school to determine whether further information was required. Following these discussions, the LADO was satisfied that several of Mrs X’s concerns were being appropriately addressed by the headteacher as low-level practice concerns. These did not meet the threshold of LADO involvement.
44. The Council went on to say the LADO noted some of the concerns, such as bullying and sexual harassment, could potentially meet the relevant threshold. However, initial screening did not reveal any recent safeguarding referrals from other parents, and Mrs X’s concerns appeared to be third-hand information. Therefore, based on the limited information available, the LADO asked the school to conduct further enquiries and re-refer the matter once it had received sufficient information. If the referral had included more specific details, such as names of staff members, the LADO would have been in a better position to determine whether the individual had behaved in a way that harmed a child.
45. Mrs X referred her complaint to stage two on the same day. She said the fact the LADO asked the school to investigate further, when the school was the subject of complaint, created a conflict of interest. She said the AST was wrongly forcing Y back into an environment that was causing mental harm.
46. The Council issued its final response to Mrs X’s complaint in early August. It said her safeguarding referral was correctly triaged. The LADO had followed the correct process. It was not within the remit of the LADO to investigate and speak with parents. It also said Mrs X had not provided further information to the safeguarding term about her concerns. Finally, it said officers from the AST acted appropriately and in accordance with the legislation.

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Analysis

47. When Mrs X initially raised concerns about Y’s school, the Council directed her to the annual review process. This is the correct process when a parent wants to change the placement in their child’s EHC Plan.
48. However, by April 2025, Mrs X had continued to raise concerns about Y’s school, that he was experiencing bullying and harassment and that he was not receiving an education. The Council’s response was that Y’s school said it could meet his needs. While it can take the school’s views into consideration, it also had a duty to make an independent assessment, look at all the available evidence and consider whether Y had an education that was practicable for him to access in light of the concerns Mrs X had raised. There is no evidence it did so, that it turned its mind to its section 19 duty or that it further investigated Mrs X’s concerns with the school. This is fault.
49. Mrs X says the conduct from the AST was inappropriate because Y could not attend school. The AST decided Y should be attending school. It therefore sent Mrs X a notice to improve at the end of June. Before it sent the notice to improve, it emailed Y’s school. Y’s school explained it could meet his needs, it had responded to the complaints about the bullying, and it had invited Mrs X in for a meeting. The Council made its decision that Y could attend school based on the school’s account. As I have stated above, the Council can take the school’s views into account, but it should make its own independent and robust decision. It should have also considered the letter from Y’s therapist, Mrs X’s views and turned its mind to whether it had a section 19 duty. There is no evidence the Council did this, which is fault.
50. I cannot say even on the balance of probabilities that the Council would have decided to provide Y with alternative provision if it had acted without fault. It may have decided he should be attending school. However, Mrs X has some uncertainty and frustration because of the Council’s faults. The Council should remedy this injustice.
51. Mrs X is unhappy the LADO decided the headteacher of the school should investigate matters, when she was complaining about the school and the headteacher.
52. The LADO’s role is to an oversee an investigation. They do not conduct investigations or speak to parents. It is the role of the employer (the school in this case) to investigate the concerns. For schools, it is usually the headteacher or the safeguarding lead. The LADO decided they needed further information about some of the issues in Mrs X’s referral and therefore asked the headteacher to further investigate matters. This is in line with the Council’s policy which states the LADO should consider whether further details are needed. While Mrs X had mentioned the headteacher in her safeguarding referral, she did not mention the headteacher was responsible for specific safeguarding incidents against Y. Therefore, the LADO decided it was appropriate for the headteacher to conduct further enquiries. That was a decision the LADO was entitled to take. I do not find fault.
53. The LADO reviewed the other matters in Mrs X’s referral and decided they were low-level practice concerns, and therefore they did not meet the threshold for further involvement. This was the LADO’s professional judgment and a decision they were entitled to take. I do not find fault.

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Action

54. By 28 July 2026 the Council has agreed to:

• Apologise to Mrs X.
• Pay Mrs X £150 for her frustration and uncertainty.

55. By 25 August 2026 the Council has agreed to:

• Ensure officers follow a clear and consistent process when considering section 19 duties. This should include consulting professionals involved with the child, considering all the evidence, reaching a decision, recording the decision and rationale, and then communicating this to families.

56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. There was fault by the Council, which caused Mrs X an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman