Summary: Miss X complained the Council failed to provide her son with sufficient education or ensure her son received the provision in his EHC Plan. The Council’s decision making was delayed and lacked clarity and its communications with Miss X were poor. That caused Miss X uncertainty and distress. An apology, payment to Miss X and training for officers is satisfactory remedy.

The complaint

1. The complainant, Miss X, complained the Council:
• failed to provide her son with sufficient education when his mainstream school (School A) said it could no longer meet his needs; and
• failed to ensure her son received the provision in his education, health and care plan (EHC Plan) while he was out of school.
2. Miss X says the Council’s actions have caused her and her son emotional and mental distress and has impacted on her financially.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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(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).

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Miss X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education

9. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the Council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

The Council’s policy statement on arranging education for children who cannot attend school because of health needs (the Council’s policy)

11. The focus of the policy is to outline the support required to enable children of statutory school age with health needs to access a suitable educational offer. In the first instance this will be from their home school but may also involve delivery of educational provision by the council under its section 19 duty. The aim is to facilitate a return to education in the home school as soon as possible.
12. Schools and academies should be providing support for their pupils with medical needs under their statutory duties. It is only when the pupil’s medical condition becomes too complex, the risks are too great to manage in school, or if the condition is long-term that this policy would apply.
13. Where possible, schools should continue to provide education to children with health needs who can attend school. The Council does not need to become involved in such arrangements unless it has reason to believe the education provided by the home school is unsuitable.
14. There is no legal deadline by which the Council must start to arrange education for children unable to attend school due to health needs. However, as soon as it is clear a child will be away from school for 15 days or more because of health needs and the home school is unable to provide an education, the Council should arrange suitable alternative provision.
15. Where full-time education would not be in the best interests of the child because of reasons relating to their physical or mental health the Council may support part-time education. Where part-time education is provided it will be regularly reviewed and a plan for increasing hours and possible reintegration to school will be put in place where appropriate.
16. The focus of the Council’s educational offer will always be to facilitate a return to full-time education with the child’s home school.

Special educational needs

17. 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 council can do this.
18. Under section 42 of the Children and Families Act 2014 the council is responsible for making sure arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

What happened

19. Miss X’s son has special educational needs and an EHC Plan. Miss X’s son was attending a mainstream school, School A, but started to have difficulties attending in 2024. School A put in place a part-time timetable and then five hours alternative provision.
20. On 19 June Miss X asked the Council for education other than at school. The Council told Miss X it would send her son’s case to the specialist placement panel.
21. The Council held an early annual review on 9 July. At that review School A said it could no longer meet Miss X’s son’s needs. The Council agreed to consult other schools.
22. In September Miss X asked the Council to increase the amount of hours as her son was only receiving five and she believed he was legally entitled to 15. Miss X also queried why the Council was consulting mainstream schools.
23. The Council explained it had to consult all schools because it needed to be satisfied no school could meet Miss X’s son’s needs before it would agree education other than at school.
24. School A offered Miss X some limited additional provision in September 2024. Miss X accepted one of those provisions. That added an additional hour once a week.
25. In November School A offered personal tuition for Miss X’s son, which Miss X accepted.
26. The Council consulted a school on 18 November.
27. On 23 December Miss X put in a complaint. Miss X asked the Council to put in place 15 hours alternative provision with the provider her son was already with. In response the Council said it would contact School A after Christmas to review the package in place and explore alternatives.
28. In January and February 2025 the Council told Miss X it was continuing to look for an alternative school. The Council consulted a further school in February 2025 and another three schools in March.
29. Miss X contacted the Council again in April to raise concerns about the lack of education for her son. Miss X reminded the Council about its section 19 duty. In response the Council again said it could not agree education other than at school package until it was satisfied no school could provide for Miss X’s son’s needs. The Council explained as Miss X’s son remained on the roll of the school it was responsible for arranging her son’s education. The Council said it had not considered section 19 as the school had not submitted a request.
30. The Council held an annual review of the EHC Plan in May. Miss X asked for an education other than at school package and said the 5 hours education in place was not sufficient.
31. On 3 June the Council’s specialist placement allocation panel decided to remove Miss X’s son from the agenda as it considered School A remained an appropriate school for Miss X’s son. The Council has since issued an EHC Plan naming School A. Miss X has appealed.
32. Miss X’s son continues to receive five hours alternative provision, arranged by School A.

Analysis

33. Miss X says the Council failed to put in place full-time education for her son when the mainstream school he previously attended said it could no longer meet his needs. Miss X also says the Council failed to ensure her son received the provision in his EHC Plan while he was not attending school.
34. The evidence I have seen satisfies me Miss X’s son experienced some difficulty attending school from the beginning of 2024. That resulted in the allocated school, School A, putting in place a part-time timetable and some alternative provision. By July 2024 though Miss X’s son had stopped attending school completely and School A had told the Council it no longer considered it could meet Miss X’s son’s needs.
35. I am concerned about what happened after that. The Council says Miss X’s son remained on the roll of School A and the school was therefore responsible for putting alternative provision in place. It is also clear School A arranged the alternative provision available to Miss X’s son since July 2024, rather than the Council.
36. That is not an unusual situation when a child attending a school is absent for a short period due to health needs but the intention is to return to the school. However, in this case School A had told the Council it no longer considered it could meet Miss X’s son’s needs. In those circumstances I would have expected the Council to consider whether its section 19 duty was engaged given Miss X’s son had been out of school for more than 15 days. I appreciate there was some limited education in place for Miss X’s son. However, that did not constitute full-time education and I would have expected the Council to keep the amount of education under review and to have discussed a reintegration programme with School A. That is what the Council’s policy requires it to do and failure to do that is fault.
37. I am also concerned about the extensive delays that have taken place in this case. I appreciate the Council consulted alternative schools because it needed to establish whether there was any school that could meet Miss X’s son’s needs before considering Miss X’s request for education other than at school. However, although the Council consulted five schools the evidence shows the Council did not consult those schools at the same time. Instead, the Council consulted one school in November 2024, one school in February 2025 and three schools in March 2025. Given the Council knew Miss X’s son was not attending School A and there was an issue about whether School A remained suitable for him I would have expected the Council to consult all the available schools in 2024. Failure to do that is fault and delayed the overall process.
38. I am also concerned that despite Miss X son’s case being presented to the Council’s specialist placement allocation panel on several occasions there are no notes from any of those meetings. Without any notes I cannot reach a safe conclusion about what the panel discussed or the reasoning for the panel’s decisions. Failure to keep notes is fault.
39. I am also concerned the documentary evidence is not clear about whether the Council considered School A remained a suitable school for Miss X’s son. I note when responding to a complaint in December 2024 and January 2025 the Council said it needed to consult further schools to establish whether there was a suitable school available for Miss X’s son before considering her request for education other than at school. That suggests the Council did not consider School A remained a suitable school placement. None of the communications with either School A or Miss X made any reference to the Council’s view about whether it considered School A remained suitable until June 2025. That left Miss X without any clear explanation of the Council’s position.
40. I am concerned about that because the Council knew Miss X’s son continued to not attend School A and only had limited education in place. I would have expected the Council to consider whether its section 19 duty was activated and to have clearly explained its position to Miss X and I have seen no evidence it did so before June 2025. Failure to be clear with Miss X about the Council’s view of the level of provision in place for her son and its longer-term intentions is fault.
41. It is clear from some of the Council’s later documentary evidence it expected the alternative provision arranged by School A to be a temporary arrangement pending reintegration of Miss X’s son back into School A. However, I have no evidence the Council told Miss X that. That is also fault. As I said earlier, if that was the Council’s view it should have been keeping the level of provision under review and liaising with School A about a reintegration plan and there is no evidence it did any of that. That is despite the fact Miss X consistently asked the Council to increase the provision available to her son.
42. I now have to consider what injustice Miss X and her son have suffered because of fault by the Council. I am concerned about the Council’s decision-making and communications in this case. However, I cannot ignore the fact in June 2025 the Council decided School A remained a suitable school placement for Miss X’s son. I consider it likely, on the balance of probability, if the Council had not delayed getting to that point it would likely have made the same decision, but earlier.
43. I cannot comment on that decision because Miss X had a right of appeal once the Council issued a final EHC Plan and she has exercised that right of appeal. What it means though is that if the Council had not acted with fault it would have likely decided earlier in 2025 that School A remained a suitable placement.
44. I also cannot ignore the fact School A offered Miss X’s son some additional options for education which she did not accept. However, I consider Miss X is left with some uncertainty about whether the Council would have acted to put in place more hours of education for her son if it had properly considered its responsibilities.
45. Taking that into account I consider Miss X’s injustice is limited to distress, her uncertainty about whether the situation could have been resolved earlier and more education provided to her son and her delayed appeal rights. I consider a suitable remedy would be for the Council to apologise to Miss X and pay her £500. I also recommended the Council hold a training session for officers in the education department on the Council’s section 19 duty and the Council’s responsibilities for arranging alternative provision when a child is not attending school. I further recommended the Council ensure the specialist placement allocation panel keep a note of its decisions in future. The Council has agreed to my recommendations.

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Action

46. Within one month of my decision the Council should:
• apologise to Miss X for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; and
• pay Miss X £500;
• take action to ensure the specialist placement allocation panel keeps a note of its decisions.
47. Within three months of my decision the Council should hold a training session for officers in its education department. That training should cover the Council’s section 19 duties and its role in arranging and monitoring alternative provision.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman