Summary: Mrs X complained about the way the Council handled her request for a school place for Y and the way it handled her request for alternative provision while he was out of school. The Council was at fault for providing unclear communication to Mrs X, causing uncertainty, but it has already taken suitable action to address the injustice caused.

The complaint

1. Mrs X complains about the Council’s handling of her request for a school place for her son, Y, under its Fair Access Protocol (FAP) and its failure to make alternative educational provision available for him while he was out of school. As a result, Mrs X says Y missed out on education he was entitled to and was caused real distress.

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The Ombudsman’s role and powers

2. 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
8. While I understand Mrs X has said issues have continued beyond the Council’s final response to her complaint, any issues that have occurred since then would need to be raised as a new complaint.
9. I have investigated Mrs X’s complaint as set out above between January 2025, when Y stopped attending school, and November 2025 when the Council gave its final response to Mrs X’s complaint.
10. Mrs X also complained to the Ombudsman about an unsuccessful school admission appeal for Y which was considered separately and a final decision issued. I have not revisited any issue related to Mrs X’s unsuccessful school admission appeal or which was considered in the previous decision.
11. Any mention below to events that took place either before January 2025 or after November 2025 are for reference only.

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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

Fair access protocol

14. The Council’s FAP is in place to ensure children in its area can be placed at a suitable school as soon as possible outside of the normal admission round. The FAP is triggered when a child has not secured a school place under the usual in-year admission procedures.
15. The FAP includes provision for admitting children to schools that are already full and states schools cannot rely on oversubscription as the reason for not accepting pupils. However, the Council’s policy ensures no school, including those with places available, will be asked to take a disproportionate number of children who have been excluded from other schools or who are experiencing difficulties due to challenging behaviour.
16. The Council’s policy sets out how it will consider any FAP referrals.
17. Where the Council accepts a FAP referral, it will write to schools within a reasonable distance of the child’s address, inviting them to provide data in respect of the particular year group and any reasons not to admit for the consideration of the FAP panel.
18. The FAP panel will then consider the case, including any reasons for the refusal and identify which school is required to admit.

Alternative provision

19. Section 19 of the Education Act 1996 says that a 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.
20. 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.
21. 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 a council in providing alternative education.
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
23. 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.

What happened

24. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything said and submitted, this is not intended to be a detailed account of what took place.
25. Y was attending School A but Mrs X said he had been experiencing issues and by January 2025 he had been excluded.
26. In March 2025 Mrs X decided to remove Y from School A, opting instead for Elective Home Education (EHE). At this time, Mrs X sourced online provision for Y.
27. In April 2025 Mrs X asked the Council to consider an application for Y to attend School B and to make alternative provision available to him in the meantime. The Council responded to explain while Y was receiving EHE, responsibility for his education remained with Mrs X.
28. School B declined to admit Y on the basis it was heavily oversubscribed in his year group and Mrs X submitted an appeal, which was also declined.
29. In May 2025 Mrs X explained EHE was not working for Y and asked the Council to consider making alternative provision available to him instead. Mrs X also asked the Council to use its FAP to admit Y to a school, stating her preference was School B. The Council’s EHE officer asked Mrs X to provide further information about the education she was currently providing Y, but the Council does not have a record of receiving a response.
30. Later that month the Council’s alternative provision panel considered Mrs X’s case but deferred a decision while it gathered further information.
31. In June 2025, the Council’s FAP panel considered Y’s case. Notes from this meeting show the panel invited four schools to provide data about Y’s year group and any reasons not to admit Y. The panel considered all the information it received and came to the unanimous decision that School C should admit Y.
32. The Council wrote to Mrs X to provide her with the outcome of the FAP panel.
33. The Council also wrote to Mrs X to explain it had considered her request for alternative provision but as a suitable and accessible school place had been made available for Y, it had decided it was not under a duty to do so.
34. The Council’s EHE officer contacted Mrs X again in June 2025 to seek information about the education she had been providing Y, but again the Council has no record of receiving a response.
35. As Mrs X had withdrawn Y from school and it had no information about the education she was providing him with, the Council decided to pursue a School Attendance Order.
36. Mrs X contacted the Council again in August 2025 to request alternative provision for Y. The Council explained the Section 19 duty to secure alternative provision only applied 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. The Council said this was not applicable here as a suitable school was available and accessible for Y in School C. The Council acknowledged Mrs X felt School C was not suitable but said it had seen no evidence to suggest there was a reason why Y could not attend there.
37. In September 2025, the Council declined Mrs X’s request for alternative provision and decided to proceed with the process of a School Attendance Order.
38. Responding to a complaint made by Mrs X, the Council agreed the wording of its FAP process could have caused confusion around whether she was entitled to appeal its decision. The Council apologised for this and explained it would be changing the wording to ensure greater clarity going forward.

Analysis

39. The Ombudsman is not an appeal body. This means our role is not to consider what school a child should have been admitted to by the Council’s FAP panel. Rather, we consider whether the panel followed the right process to reach its decision.
40. If we consider the panel followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
41. I have looked at a copy of the notes from the FAP panel meeting. These demonstrate the panel asked four schools, including School B and School C to provide data for Y’s year group and any reasons to support a decision not to admit him. The notes show the Council considered all the information available to it and weighed up the reasons not to admit provided by each school before reaching a unanimous decision that School C should admit Y.
42. I understand Mrs X disagrees with this decision and her preference remained School B, but as the panel followed the right process, I cannot question the decision it reached.
43. Mrs X has said the panel incorrectly relied on the fact School B was oversubscribed as a reason not to admit Y. While the notes show this formed part of the panel’s consideration, it was not the only reason given so I do not find the Council at fault here.
44. However, when investigating a complaint made by Mrs X, the Council agreed the wording of its FAP policy was unclear when it comes to the rights of appeal. This amounts to fault and would have caused uncertainty for Mrs X which is injustice. The Council has already apologised and agreed to change the wording of its FAP policy to add clarity and I find this to be suitable action to address the injustice to Mrs X and prevent a recurrence. As the Council ultimately followed the right process, I do not find there is outstanding personal injustice to Mrs X that needs to be remedied.
45. From March 2025, Mrs X had withdrawn Y from School A. The Council was aware Y was not attending school from that point, but it was not under an immediate duty to consider whether it needed to arrange alternative education for him as Mrs X had informed it he would be receiving EHE. I do not find it at fault here.
46. From May 2025, Mrs X made the Council aware EHE was not working and asked it to provide alternative education. At this point the Council was under a duty to consider whether it needed to arrange alternative education for Y. Evidence shows the Council attempted to gain further information about the EHE Y was receiving to aid its decision making but this was delayed as Mrs X did not respond. While there was a delay in reaching a decision, this appears to have been beyond the Council’s control, and I do not find it at fault.
47. When the Council’s alternative provision panel considered Y’s case in August 2025, it considered all the available information about Y’s situation. The Council decided that a place was available for Y at School C, a school it deemed to be suitable and accessible to him. As a result, the Council decided it was not under a duty to make alternative provision available to Y and instead decided to pursue a School Attendance Order.
48. While I appreciate Mrs X disagrees, the Council followed the right process by engaging all parties and considering all arguments before concluding School C was suitable and available to deliver Y’s education, so it was under no duty to make alternative provision available. As the Council followed the right process, I cannot find fault with the decision it reached.

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Investigator's decision on behalf of the Ombudsman