Summary: The Council was not at fault for deciding it did not owe a section 19 duty to secure suitable alternative education after Y stopped attending school in October 2024. The Council was at fault for failing to properly consider if it owed a section 19 duty to secure suitable alternative education for Y after they stopped attending school again in September 2025. The Council was also at fault because it failed to issue Y with an Education, Health and Care Plan within the statutory timescales, caused in part by a delay in getting Educational Psychologist advice. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to:
• Implement alternative educational provision when her child Y stopped attending school in October 2024 and again in September 2025; and
• Failed to issue Y with an Education, Health and Care (EHC) Plan within statutory timescales.
2. Mrs X said Y missed out on a suitable education and specialist provision in their EHC Plan

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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 investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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 statement with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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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.

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What I found

Relevant law and guidance

EHC Plan

9. A child or young person with special educational needs may have an 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. 
10. Where the SEND Tribunal requires the Council to make an Education, Health and Care (EHC) needs assessment or reassessment, the Council must notify the parents that it will make an assessment (notification starts the process) within two weeks. Following the assessment or re-assessment: (a) if the Council decides not to issue an EHC plan, they must so notify the parent or young person within 10 weeks of the SEND Tribunal order; and (b) if the Council decides to issue an EHC plan they must issue the finalised EHC plan within 14 weeks of the SEND Tribunal order.

Section 19

11. 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.
12. 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)
13. 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.

14. 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.

Elective home education

15. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
16. There are no specific legal requirements for the content of home education; it does not need to include particular subjects, follow the National Curriculum or culminate in examinations. It does not need to follow a typical ‘school day’. Councils should not assume an unconventional approach constitutes unsuitable education and approaches should be judged on outcomes.
17. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
18. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
19. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
20. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.

What happened

21. Mrs X has a child Y, with special educational needs. Mrs X asked the Council to carry out an Education, Health and Care needs assessment for Y in 2024.
22. In September 2024, Y was attending a mainstream primary school. From the start of October, Y stopped attending school because of anxiety and emotional school based avoidance (ESBA).
23. Mrs X told the Council of this at the end of October and asked it to arrange section 19 alternative educational provision. The same month the Council decided to not carry out the EHC needs assessment. Mrs X appealed the decision.
24. The Council issued its decision to refuse alternative educational provision mid-November as the school was providing suitable support to reintegrate Y into school which was as follows:
• A graduated approach plan;
• A learning plan;
• Commissioning of an Educational Psychology (EP) report;
• A referral to the Council’s ESBA team; and
• A referral to the early response hub.
25. A couple of days later, Mrs X said she wanted to deregister Y from school and electively home educate (EHE) Y. Mrs X said she had no choice but to do this. The Council sent Mrs X the necessary forms to complete and guidance which sets out parents’ and Council’s responsibilities for EHE children.
26. In December, the Council asked Mrs X to provide a report outlining the education Y was receiving. Mrs X responded in summary with the education she was providing in relation to Maths, English, Art, Physical Education and Life Skills. Mrs X said Y had made progress in all areas and their confidence and mental health had improved since leaving the school environment. Mrs X home educated Y for the rest of the school year.
27. In June 2025, the tribunal ordered the Council to carry out an EHC needs assessment for Y. The Council should have told Mrs X within 10 weeks of the order if it decided not to issue an EHC Plan. If it decided to issue an EHC Plan it should have completed this within 14 weeks of the order so by early October.
28. In September 2025, Y was enrolled at a mainstream secondary school. The attendance records show Y attended one day and then had absences coded as illness for the rest of the school year.
29. In October 2025, Mrs X complained the Council had failed to complete the EHC needs assessment within timescales following the tribunal order. This was due to delays receiving EP and Occupational Therapy (OT) advice. Mrs X also complained the Council had provided no alternative educational provision despite Y not attending school due to anxiety. Mrs X said mainstream school could not meet their needs.
30. The Council issued a final complaint response in November 2025. It said:
• It accepted it had not completed the EHC needs assessment within timescales which was due to an increased request for these assessments and not enough EPs to meet the demand; and
• Y did not qualify for section 19 provision as Y had an educational placement.
31. In December 2025, the Council received the EP advice for the EHC needs assessment.
32. In mid-March 2026, the Council issued Y’s final EHC Plan. This included, but was not limited to, the following provision:
• 1:1 social communication awareness sessions held once a week and reviewed every six weeks;
• An identified mentor or tutor;
• For all learning sessions throughout the day, Y requires 1:1 support moving to a small group of up to 4-6 children when ready;
• A sensory profile;
• An intervention to teach Y how to regulate;
• Practical study strategies including organisational skills, working memory support and revision techniques;
• Visual and practical prompts to support verbal teaching; and
• An intervention to work on literacy skills.
33. Y’s final EHC Plan named the same mainstream secondary school Y was already enrolled in. If Mrs X disagreed with the suitability of this, it was reasonable for her to appeal this to the SEND tribunal.
34. Mrs X was dissatisfied with the Council’s handling of the matter and complained to us.

My findings

EHC needs assessment delays

35. The tribunal ordered the Council to carry out an EHC needs assessment for Y in June 2025. Following this, it should have followed the statutory timescales set out in the law and code. Therefore the Council should have decided whether to issue an EHC Plan by the start of September 2025 and then issued the final EHC Plan by the start of October 2025.
36. The EP advice should have been available to the Council by early August 2025 2025 in order for it to have met the October deadline. It did not receive the EP report until late December 2025 which was a delay of 19 weeks and fault. This service failure came about due to an increase in requests for EHC needs assessments and not enough EPs to meet the demand.
37. After the EP gave their advice, the Council took too long to finalise Y’s EHC Plan. With EP advice in hand, it should have issued the final Plan in less than eight weeks after the EP advice, taking account of the timescales set out in the Code. This includes time to:
• write a draft EHC Plan;
• issue it to the family and give them 15 days to consider the draft EHC plan and provide their comments; and
• 15 days for the education establishment to comment.
38. The overall guidance is that final plans should be issued as quickly as possible.
39. This should have been completed by mid-February 2026 at the latest but was delayed by five weeks. This fault caused five weeks delay to Y receiving the provision in their EHC Plan.

Section 19 duty

40. Mrs X notified the Council at the end of October 2024, Y was not attending school and requested it put in place alternative educational provision. In mid-November, the Council declined this request due to the school providing various support to try and reintegrate Y into school. There was no fault in how the Council made this decision. It was reasonable for the Council to allow the school to first take steps to reintegrate Y into school before the Council implemented alternative provision.
41. We would have expected the Council to keep this under review and if attendance was not improving, reconsider its section 19 duties. However, a couple of days after the Council made its decision, Mrs X decided to home educate her child from then until the summer holidays. The Council deemed the education Mrs X was providing to be suitable and Mrs X reported this was going well. Therefore, it no longer had a section 19 duty between November 2024 and the summer holidays.
42. Y was enrolled at a mainstream secondary school from September 2025. When Mrs X complained in October 2025 that Y was not attending school and asked for alternative educational provision, the Council should have considered again whether it had a section 19 duty. While the Council said it did not owe Y a duty as they had a school place, it was clear from the attendance records Y was not attending school at all. The Council was at fault as it did not properly consider whether it owed a section 19 duty. This has caused Mrs X distress, frustration and uncertainty about whether Y should have received alternative educational provision.
43. Once the Final EHC Plan was issued in March 2026, it was reasonable for Mrs X to appeal this if she disagreed with the suitability of the placement.

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Action

44. Within one month of the final decision to the Council has agreed to:
1. Apologise to Mrs X for the delays in issuing Y’s final EHC Plan and its failure to properly consider whether it owed Y a section 19 duty;
2. Pay Mrs X £250 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist;
3. Pay Mrs X £400 to recognise Y’s loss of opportunity to receive provision in line with Y’s EHC plan between February and March 2026 caused by the delay in issuing the final Plan after it had obtained EP advice; and
4. Pay Mrs X £200 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to properly consider whether it owed Y a section 19 duty.
45. Within three months of the final decision, the Council has agreed to create an action plan demonstrating:
1. what action it is taking to ensure EHC Plans are issued within statutory timescales including a recruitment strategy to access and recruit more EPs.
2. how it will ensure the Council makes and stores clear and accurate records of section 19 decision making for children out of school.

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

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Decision

47. 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