Summary: Mrs X complained that the Council failed to deliver education to her daughter while she could not attend school. We have found that the Council was at fault, because it did not consider making alternative arrangements for Mrs X’s daughter, who lost education as a result. The Council has already offered a suitable remedy, so we have not recommended that it take further action.

The complaint

1. The complainant, whom I refer to as Mrs X, says her daughter (Y) has been too unwell to attend school since October 2022.
2. Mrs X complains that the Council failed to arrange any suitable alternative educational provision for Y at all for a year, and then, in late 2023, offered tuition which it knew she was not well enough to access. Mrs X says Y’s paediatrician and the proposed tuition company both agreed it was unsuitable.
3. Mrs X also complains that the Council failed to agree a personal budget to help her arrange some suitable provision for Y.

Back to top

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. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), 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).

Back to top

What I have and have not investigated

7. I have investigated Mrs X’s complaint about the provision Y received (or lack thereof) while she was out of school between October 2022 and November 2023.
8. However, section 26(6) of the Local Government Act 1974 says we cannot investigate a complaint about something which has been appealed to a Tribunal.
9. The Council issued Y’s Educational, Health and Care (EHC) plan – deciding her special educational needs support – in November 2023. It did not name a school in the plan, leaving her without education.
10. Mrs X appealed this plan to the SEND Tribunal (as she wanted Y’s education to be delivered outside a school setting). But she still wants us to consider Y’s lack of education while she waited for the appeal to be resolved.
11. The courts have said we cannot look at complaints like this because an appeal right has been used. Y’s lack of education was as a direct consequence of the decision which Mrs X appealed (the Council’s failure to name a suitable school for Y).
12. This means I cannot investigate any complaint Mrs X has made about the period from November 2023 onwards. This includes her complaint about the Council’s refusal to issue a personal budget for Y.
13. Mrs X has also made complaints about things which have happened since the Tribunal made its decision on her appeal (in December 2024). But these happened significantly after Mrs X’s complaint to us and should be pursued with the council first before we can look at them.

Back to top

How I considered this complaint

14. I considered information from Mrs X and the Council. Both had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

The Council’s responsibilities

15. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘alternative provision’.
16. When a council is considering whether to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
17. If specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP”. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
18. It is up to a council to decide whether a child’s health needs prevent them from attending school, and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
19. When a council arranges alternative education, this should begin as soon as possible, and no later than the sixth day of the child’s absence. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide alternative provision. (‘Out of school, out of sight?’ published July 2022)
21. We recommend that councils:
• Consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
• Work with parents and schools to draw up plans to reintegrate children into education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

22. In October 2022, Y stopped attending school after a period in which her attendance had been dropping. The Council’s records show it was aware she had been going to school significantly less than full-time.
23. In November, the Council referred Y to its inclusion team for support with attendance. In the referral form, it acknowledged information from Mrs X, which confirmed that Y was “unable to attend school a vast majority of the time”.
24. Nothing came of the referral, and the Council says this was superseded by the needs assessment it started for her EHC plan.
25. In December, the Council’s educational psychologist completed a report for Y’s EHC plan. This report concluded that Y remained unable to be educated in a group setting in school.
26. The Council did not arrange – or even considered arranging – any alternative educational provision for Y between October 2022 and November 2023.
27. At the end of this period, Mrs X told the Council that Y “cannot access tutoring as she is too traumatised”. Her view was that Y should receive a varied range of interventions, drawn from a private paediatrician report.
28. Later on, Mrs X told the Council that Y was “completely unable to access any education, online or face to face”.
29. After Mrs X complained to the Council, it accepted that it had failed to secure education for Y, and it apologised. It also offered her a symbolic financial remedy of £2,700.
30. Mrs X remained dissatisfied and asked us to investigate her complaint.

My findings

31. Despite being aware by late October 2022 that Y was not attending school full-time (and, by December 2022, that she had stopped attending school completely), the Council failed to consider whether her non-attendance was caused by health issues (as Mrs X claims), or whether it should deliver alternative provision while she was out of school.
32. This means the Council did not act in accordance with the statutory guidance, for which it was at fault.
33. From then, up to November 2023, Y received no education. In the absence of any explanation from the Council for why alternative provision would not have been appropriate, I have found that she suffered a year-long loss of educational provision, which represented a significant injustice.
34. This injustice was, perhaps, slightly mitigated by what Mrs X subsequently told the Council (that Y was completely unable to access education of any kind). However, I still consider it likely that Y missed at least some provision (however that provision may have looked).
35. As the benefit of the missed provision can no longer be recovered, the most appropriate remedy is a symbolic payment (in line with our remedies guidance) which recognises Y’s injustice.
36. The Council has already offered such a payment, so no further action needs to be taken.

Back to top

Final decision

37. The Council was at fault, and this caused Y an injustice, which the Council has already taken action to address.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman