Summary: Miss X complained about the Council’s failure to provide alternative education when her child’s school did not provide support for her special education and health needs. We did not find the Council to be at fault because it followed the correct process in deciding a suitable school place was available and accessible for Miss X’s child.

The complaint

1. Miss X complains about the Council’s failure to provide her daughter, Y, with a suitable, full-time education and support for her special educational needs.
2. She also complains about lack of communication from the Council.
3. Miss X says this has had a significant negative impact Y’s well-being, as well as her educational progress. Miss X has also suffered significant distress and frustration

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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, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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.
9. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
10. 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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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. Miss 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

Special educational needs

Education, Health and Care Plans

13. A child or young person with special educational needs (SEN) 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.

Children out of school and alternative provision

14. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine.
15. Where a child’s attendance at school drops below a certain level, it is likely a council’s inclusion/attendance officer will become involved after a referral from the school. Inclusion officers 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.
16. Councils must arrange suitable education at school or elsewhere for pupils 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 section 19 or alternative provision.

What happened

17. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
18. Miss X’s child, Y, has SEN and is of secondary school age.
19. In March and July 2024, Miss X unsuccessfully applied for an EHC Plan because the Council decided Y’s SEN needs could be met within existing school resources. Miss X appealed this decision to the SEND Tribunal. The Council later agreed to carry out an assessment.
20. In September 2024, Y transferred from primary to secondary school (School P). This was not her chosen school, but was the only school offered during the admissions process. Miss X wanted Y to attend a single sex school, that was nearer to home and be with a familiar peer group.
21. Miss X says Y found the move to School P overwhelming. She says Y was the subject of bullying and School P failed to take effective action. Getting Y to school was becoming increasingly problematic and traumatic.
22. Miss X contacted the Council in December and January 2025 requesting alternative education. Miss X strongly felt that School P was unsuitable and unable to support Y’s SEN as well as her anxiety, physical and mental health issues.
23. In response, Miss X was advised to contact School P, specifically about the bullying issue.
24. In January 2025, the Council contacted Miss X to invite her to what it described as “co-production meeting” to be scheduled in early March 2025. Miss X expected she would be given the opportunity to explain Y’s circumstances and why she felt an EHC Plan was essential.
25. Miss X heard nothing further about this meeting. Instead, she received a letter informing her the Council would not issue an EHC Plan. This decision is subject of an ongoing appeal to the SEND Tribunal.
26. Miss X complained about the Council’s failure to provide alternative education in December 2024. She desperately wanted the Council to move Y to a different school.
27. In response, the Council suggested Miss X contact School P to discuss her concerns regarding Y’s attendance to determine what support could be offered. Miss X was also invited to contact the Council’s relevant team directly if she preferred.
28. In response to the Ombudsman’s enquiries, the Council says no such contact was made by Miss X, nor was it necessary to consider whether it was obliged to provide alternative provision.
29. Dissatisfied with this reply and the Council’s general response to the concerns she had raised about Y’s welfare, Miss X brought her complaint to the Ombudsman.

Analysis

30. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
31. The Council’s position is that it did not have a duty to provide alternative education because Y had a school place that was available and accessible to her. She was also attending regularly on a full-time basis.
32. Miss X says the Council should have provided Y with alternative provision when she made the Council aware of Y’s difficulties at School P in December 2024 due to extreme anxiety. I disagree.
33. The fact Y had severe anxiety about attending School P did not necessarily mean the Council had a duty to provide alternative provision, as Miss Y expected.
34. We expect councils to ensure they have robust procedures in place for schools to manage and report when children are absent from school. This is to enable the council to reach a view on whether:

• a school should do more to support a child to access their education;
• a child should receive alternative provision. If so, this should be arranged within 15 days of it becoming aware a child stopped attending school; or
• it should take action against a parent for failing to ensure their child attends school.

35. The Council provided the Ombudsman with a copy of Y’s attendance at School P for the academic year 2024/205. This shows Y was recorded as being absent for health reasons on 13 occasions. This level of non-attendance would not, in itself trigger the Council’s section 19 duties.
36. The case records show School P contacted the Council’s attendance officer in January 2025. I presume this was because Y had been absent on six occasions between late November 2024 and early January 2025. I understand Miss X discussed Y’s circumstances with the attendance officer at it was agreed no formal action would be taken against Miss X because of Y’s SEN and her subsequent regular attendance.
37. This relatively early intervention by both School P and Council demonstrate appropriate systems were in place to address attendance concerns.
38. I have seen no evidence that School P felt it was unable to support Y’s attendance or SEN internally. On the contrary, I have seen evidence of several measures taken by School P, partially informed by recommendations from an Educational Psychologist, (instructed as part of the EHC Plan assessment process) to support Y. These included:

• making allowances around homework expectations;
• regular “check-ins” with key members of staff;
• access to a hub space for break and lunchtimes; and
• fortnightly interventions with specialist support.

39. Miss X has told me this support has been either unavailable or ineffective. In the absence of any independent evidence to support this assertion, I am unable, on balance of probabilities, to make a finding on what actually happened at School P. In any event, the Ombudsman has no jurisdiction to investigate what happens in schools. Nor can I say the Council had a responsibility to make further enquiries about this matter, over and above what it did. Government guidance also makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support. In my view, this was the case here.
40. My conclusion there was no fault by the Council when it did not arrange alternative provision for Y.
41. Nor have I found fault with the Council’s communication with Miss X over this issue. Her emails were generally responded within a reasonable timeframe. In its response to my enquiries, the Council has accepted it failed to honour its commitment to convene the co-production meeting in March 2024. However, this meeting was closely linked to the Council’s decision to refuse to issue an EHC Plan. Because this decision is the subject of an appeal to the SEND Tribunal, it is outside the scope of the Ombudsman’s jurisdiction for the reason set out in paragraph eight above.

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Final decision

42. I have not found the Council to be at fault. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman