Summary: We found the Council at fault for not considering and recording its section 19 duties when Dr X asked for alternative provision in November 2024 and in February 2025 when Y missed 15 school days. The Council agreed to apologise to Dr X and Y and pay £200 to recognise the avoidable distress and uncertainty its actions caused to Dr X and Y. The Council has also agreed to carry out service improvements about how it makes, carries out and communicates decisions about its section 19 duties.

The complaint

1. Dr X complained that between November 2024 and October 2025 the Council failed to:
• respond to her numerous requests for alternative provision for her child, Y; and
• provide suitable full-time educational provision for her.
2. Dr X also complained about the Council’s complaint handling. She says it failed to fully respond to her complaint at stage one and stage two of its process.
3. Dr X says that as a result of the Council’s actions Y missed out on suitable education and she and her husband needed to supplement her education privately.

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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. 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.
6. 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.
7. 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)
8. 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.
9. 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)
10. 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

11. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal. For this reason we are unable to investigate matters relating to alternative provision after March 2025 during the relevant period as Y’s special educational needs and the provision contained in his EHC Plan are currently being considered by the SEND Tribunal as a result of Dr X using her right of appeal.
12. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal, including delays in the process before an appeal right started. For Dr X’s complaint this includes matters about the handling of her complaint by the Council.
13. Dr X has also requested we investigate events in relation to alternative provision that happened more than 12 months ago. We consider these complaints as ‘late’ (Local Government Act 1974, sections 26B and 34D, as amended). Therefore, I am unable to investigate events regarding alternative provision that occurred before December 2024.

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How I considered this complaint

14. I considered evidence provided by the Council and Dr X as well as relevant law, policy and guidance.
15. Dr 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

What happened

16. In February 2024 Y was attending her school on a part-time timetable to help reintegrate back into school. From March 2024 Y was expected to attend her school full time.
17. In November 2024 Dr X asked the Council to provide alternative provision for Y as she continued to struggle to attend her school full-time.
18. Y’s school attendance records, which the Council had access to, show that in February 2025 she missed 15 school days.
19. In March 2025 the Council issued a final amended EHC Plan.
20. Dr X disagreed with sections F and I of the Plan and she appealed those to the SEND Tribunal.

Dr X’s complaints

21. Dr X complained to the Council about its actions in September 2025. She said that Y was not accessing full-time education and the Council failed to take action after she mentioned this. She also told the Council it would have to ensure that Y was getting her provision from section F of the Plan.
22. Within two weeks the Council responded to her complaint and partially upheld the complaint about delays in securing alternative provision. The Council’s response also mentioned concerns over transport arrangements and consultations with schools.
23. Dr X asked the Council to consider her complaint further as the response did not address her concerns over delivering the contents of Y’s EHC Plan and alternative provision. Dr X also said the Council decided to respond about things she had not complained about.
24. In November the Council issued its final response to Dr X’s complaint. It accepted there was a delay in arranging Y’s alternative provision but said this was resolved as Y was accessing alternative provision now.

Analysis

Alternative provision

25. I found the Council was at fault for not considering and formally recording its decision about whether it needed to provide alternative education provision under its section 19 duty since November 2024, when Dr X first requested it. The Council said the school had not made a request for alternative provision until June 2025, however the Council needs to be considering its duties even without a formal request from a school. By February 2025 Dr X told the Council that Y had missed 15 days of school and the school attendance records confirmed this.
26. On balance however, I cannot say whether this fault meant Y missed education between November 2024 and March 2025, because I cannot say what the Council’s decision would have been while it was finalising Y’s EHC Plan and whether Y would have taken up education had it been offered.
27. However, this fault has caused Dr X an injustice because she experienced avoidable distress and uncertainty about the Council’s decision and about whether her daughter missed out on an education offer for this period.

Complaint handling

28. I found the Council was at fault for how it considered Dr X’s complaint. When she told the Council its response did not address all her concerns, and the Council has added other complaint points she had not raised, the Council failed to recognise and correct this at stage two. This caused Dr X avoidable distress.

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Action

29. Within one month of the date of the final decision statement, the Council will:
• apologise to Dr X and Y for its failure to consider its section 19 duties from November 2024 to March 2025 and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• provide guidance to officers that they must consider whether the Council should arrange alternative provision for a child not in full-time education whenever they receive information suggesting the child is not accessing education; and
• pay Dr X, on behalf of Y, £200 to recognise the uncertainty about what the Council could have offered Y had it considered its section 19 duties sooner.
30. Within three months of the date of the final decision statement, the Council should create an action plan demonstrating how it will ensure the Council makes, stores and communicates clear and accurate records of section 19 decision making for children who missed 15 days of school.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I found fault causing injustice. The Council agreed to apologise to Dr X and Y and pay £200 to recognise the avoidable distress and uncertainty its actions caused to Dr X and Y. The Council also agreed to carry out suitable service improvements in relation to its Section 19 duties.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman