Summary: There was fault by the Council, because it did not keep the complainant informed of the reason her daughter’s school placement had not started, and because it delayed arranging alternative provision for her. The Council has agreed to apologise and offer a financial remedy to reflect the distress and loss of education this caused.

The complaint

1. I will refer to the complainant as Miss C.
2. Miss C complains the Council:

• did not keep her informed of the reasons for its lack of progress with securing a school placement for her daughter, D, after it issued an education, health and care (EHC) plan for her in November 2024; and
• did not arrange for D to receive alternative provision during the time she was not attending school.

3. Miss C says this had a negative effect on both her own and D’s mental health.

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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)

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How I considered this complaint

5. I considered evidence provided by Miss C and the Council as well as relevant law, policy and guidance.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

Alternative provision

7. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
8. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
9. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Miss C’s complaint

10. The following chronology will give a summary of the key events relevant to this complaint. It is not intended to provide an exhaustive description of everything that happened.
11. In February 2024 the Council received a request from Miss C to carry out an EHC needs assessment for D. As part of her request, Miss C explained D was not currently attending school, because she had been struggling to cope with mainstream education.
12. An education welfare officer contacted Miss C in early March to discuss D’s attendance. The officer asked Miss C to describe what education D was receiving, and, based on Miss C’s response, said it appeared she was home educating her. Miss C said this was a short-term arrangement, and that she had discussed it with a different officer during a recent home visit.
13. Later in March the Council received a letter from D’s school, confirming Miss C had withdrawn her from school for elective home education (EHE) the previous November.
14. In April the Council confirmed it would complete an EHC needs assessment for D. The Council sought advice from several professionals, including an educational psychologist (EP).
15. In August, having only recently received the EP’s advice, the Council issued a draft EHC plan for D. Miss C asked the Council to consult with a particular specialist school, School 1, for a possible placement for D, which the Council did.
16. In September School 1 replied to say it could not meet D’s needs, and that it was at capacity anyway. The Council sent consultations to several other specialist schools and providers, but received no positive response.
17. In October the Council decided it would name School 1 on D’s EHC plan, despite its rejection of the consultation. This was because, as a section 41 approved school, it was legally required to accept D if named on her EHC plan. The Council issued the final plan naming School 1 in November.
18. In December the Council learned School 1 was no longer a section 41 school, and did not have to accept D.
19. In January 2025 Miss C contacted D’s case officer to enquire when her placement with School 1 would start. The officer said she would make enquiries and then update Miss C. Later in January Miss C submitted a stage 1 complaint. She complained the Council had made no progress on placing D at School 1 since issuing the EHC plan, and highlighted D was receiving no education in the meantime.
20. In February the Council asked School 1 to reconsider whether it could offer a placement for D. The school did so, but maintained its view it could not meet D’s needs.
21. The Council then replied to Miss C’s stage 1 complaint. It acknowledged it had named School 1 in D’s EHC plan, but explained the change in the school’s section 41 status meant the Council could not require it to admit D. The Council accepted it had not informed Miss C of this and apologised.
22. The Council said it had continued to negotiate with School 1 about the possibility of a placement, but without success. It suggested it should arrange online tuition for D as soon as possible, and review what other options there were for educational placements.
23. In March the Council contacted Miss C to begin making arrangements for D’s tuition. It said it could arrange 15 hours of tuition per week, in maths and English, but noted Miss C had asked for a wider range of subjects. The Council also explained it had received a negative response to its consultation with a mainstream school.
24. Miss C then submitted a stage 2 complaint. She criticised the narrow range of subjects for the proposed tuition, pointing out D was supposed to be working towards her GCSEs, and said the Council had not looked into any of her suggestions for other subjects. Miss C also complained the Council had consulted with a mainstream school, which she said D could not manage, and that D’s EHC plan was not being implemented.
25. The Council responded a few weeks later. It said it “always [consulted] with a mainstream school in order to provide ‘a view’ on the suitability of this type of provision”, but apologised it had not explained this to Miss C. The Council also said it had not previously done this in D’s case, which was an oversight, and that it was implementing service improvements to avoid a recurrence.
26. The Council said it would now consult with other educational providers to move D’s case forward. It noted the development of social skills was part of D’s EHC plan, and said there were alternative providers which could implement this, although it acknowledged Miss C had expressed a reluctance for D to work with such organisations.
27. In April the Council received a positive consultation response from another specialist school, and then named it on a revised version of D’s EHC plan, for her to attend from September.

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Analysis

28. I will address each point of Miss C’s complaint in turn.

Failure to keep Miss C informed about progress with placement

29. In November 2024 the Council issued a final EHC plan for D, naming School 1 as her placement. From context it appears the Council expected this placement to start around the end of November.
30. Unfortunately the Council had been unaware of the change in the school’s section 41 status, which meant it could not direct it to take D, as it had believed. The school explained this to the Council in December.
31. In isolation there is nothing to suggest the Council was at fault for this. However, it is also apparent the Council did not explain this development to Miss C at the time. This meant she was left understandably confused and frustrated at the fact D was still not attending school, despite apparently having a suitable placement.
32. I consider this failure to amount to fault, and the frustration Miss C experienced to represent an injustice to her. I will consider what the Council should do to remedy this at a later point in this decision statement.

Failure to arrange alternative provision for D

33. I asked the Council to explain whether (and if so, at what point) it considered D’s absence from school triggered its section 19 duty to arrange alternative provision.
34. The Council explained that, following the family’s move into its area, a mainstream school placement had been arranged for D in November 2023, but Miss C had declined this because it had “been offered… on the basis of no provision”. The Council’s education welfare team had investigated D’s non-attendance, and in February/March 2024 had established Miss C was electively home educating her. The Council says it therefore did not consider its section 19 duty was engaged at this point.
35. I consider this was a decision the Council was entitled to make. Although the law requires the Council to arrange alternative provision for children who are unable to attend school for particular reasons, EHE is also a lawful alternative to school. Where a council is satisfied a child is receiving an appropriate education at home, it does not have a duty to intervene.
36. Continuing, the Council says it eventually accepted a section 19 duty for D in October 2024. This is because it had issued a draft EHC plan for D by this point, and it had become apparent it was struggling to find a school placement for her.
37. The Council then said:

“Whilst tuition was agreed in October because the LA had named [School 1] shortly afterwards in November 2024 with a November 2024 start date the tuition was not put in place at this time. By naming [School 1], the LA did not consider that there was a s19 duty as we believed that a school was in place for [D] and would be delivering the provision within the plan. Upon discovering that this placement could not go ahead we sought to put tuition in place.”

38. The Council has now acknowledged it should still have arranged tuition for D from the date it originally agreed to, up until D was due to start at School 1 in November. It says, assuming no delay in finding a tutor, this would have been for approximately seven weeks.
39. The Council has also acknowledged it should have arranged a tutor for D from November, when it became aware of the complications with D’s planned placement at School 1. But the Council says it was unable to arrange this provision for D until March.
40. The Council has provided no more information about its attempts to secure a tutor for D. But I acknowledge tutors, and other forms of alternative provision, can be in short supply.
41. However, I consider this comment is contradicted by the Council’s stage 1 response, which it sent to Miss C at the end of February. The Council’s letter made no mention of any difficulty in securing alternative provision for D, and indeed ‘suggested’ tuition as a way forward, implying strongly it had not actually sought to implement any such provision yet. And from this point, it took the Council only approximately three weeks to arrange tuition for D.
42. Either way, though, this delay is still fault. Even if the Council is correct to say March was the earliest it was able to arrange a tutor, this is what we call ‘service failure’ – an inability by a council to discharge its duty through circumstances beyond its control.
43. This fault caused an injustice to Miss C and D, both in the sense of the loss of provision to D, and because of the consequent distress and frustration this caused them.
44. Miss C has also complained the tuition the Council arranged for D was limited to maths and English, and did not include any wider subjects. The Council has explained Miss C particularly wished for D to study psychology, but it was unable to source a provider for this.
45. The Government’s statutory guidance says, on page 10:

“Full and part-time education should still aim to achieve good academic attainment particularly in English, maths and science.”

46. Interpreting this strictly, therefore, I consider D’s tuition should also have included a science element. However, I am conscious there is other, more recently updated, statutory guidance on alternative provision, which refers specifically only to English and maths. I also note Miss C’s objection to the range of subjects makes no reference to the omission of science, a point the Council has also highlighted.
47. I appreciate D has an interest in psychology. It is unfortunate the Council was unable to identify a provider with this capacity, therefore, but on balance I do not consider this to be the result of fault; it is inevitable there will be a more limited range of subjects available from alternative providers than in a normal school.
48. Miss C has also complained D’s EHC plan was not being implemented during her absence from school.
49. In addition to its duty to ensure a child receives education when absent from school, the Council has a separate duty, under section 42 of the Children and Families Act 2014, to secure the provision set out in an EHC plan.
50. However, I am not persuaded the specialist provision in D’s EHC plan could practically be implemented outside of school anyway. For example, much of it pertains to creating an amenable learning environment for her at school, which clearly has no application to a home tuition setting.
51. Another aspect of the plan is the provision of coaching and mentoring, and while this seems more practical, I cannot overlook the purpose of D’s tuition was simply to be a short-term stopgap, while the Council identified a proper school placement for her. I do not consider this to represent a significant omission under the circumstances.

Conclusions

52. The Council was at fault because it did not explain to Miss C why D’s placement at School 1 had not started. It was also at fault for the delay of approximately five months in arranging tuition for D, while she was waiting for a school placement.
53. Both of these faults caused distress and frustration to Miss C and to D; and the delay in arranging tuition additionally caused a loss of provision for D.
54. To remedy this, I first consider the Council should write a formal letter of apology to Miss C, reflecting on the faults I have identified and their impact on her and D. I do note the Council has already apologised in its response to Miss C’s complaint, but a separate, formal apology letter remains appropriate.
55. Second, and in accordance with our published guidance on remedies I consider the Council should offer a financial remedy of:

• £200 to reflect Miss C and D’s frustration at being unaware of the reason D’s school placement had not started; and
• £1500 to reflect D’s loss of approximately one and a half terms of education (October-March).

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Action

56. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Miss C, to acknowledge its faults and reflect upon the impact of these on her and D. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings; and
• offer to pay Miss C a total of £1700 to reflect the distress caused by its fault, and for the loss of D’s education.

57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman