Summary: Mr B complained that the Council, in respect of his son, D, failed to complete a needs assessment and issue an Education, Health and Care Plan within the statutory timescales. He also complained the Council had failed to provide alternative education for D since he stopped attending school. We found fault in the actions of the Council which caused distress and inconvenience to Mr B and D to miss out on essential education and support. The Council has agreed to apologise to Mr B and D, make a symbolic payment and provide evidence of the steps it has taken to improve implementation of its policy on alternative provision.

The complaint

1. Mr B complained that Cornwall Council (the Council) in respect of his son, D:
• failed to complete an Education, Health and Care (EHC) assessment or issue an EHC Plan within the statutory timescales; and
• failed to provide suitable and accessible alternative education for D since 1 May 2024 when he stopped attending school.
2. This has caused D to miss out on education for a prolonged period and significant distress and inconvenience for Mr B.

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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 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)
4. 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

5. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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 found

Special educational needs

8. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Alternative provision

General section 19 duty

9. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
10. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
11. 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)

Focus report

12. 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? updated August 2023
13. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream 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.

14. 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.

Council’s policy on its section 19 duty

15. The Council’s policy quotes directly from our focus report referred to in paragraph 12 above, specifically providing for situations where child is out of school for reasons otherwise than illness or permanent exclusion. It says it will only provide education under the ‘otherwise’ category if it assesses it is not possible for a child to receive a suitable education at their current school.
16. It says that once a child has been absent for a period of 15 school days it has a statutory duty to assess whether it needs to provide education. The policy provides a detailed framework for how to carry out that assessment and record its decision with reasons.

What happened

17. Mr B’s son D had been having difficulties at school since 2023. On 1 March 2024 he was suspended from school. Later that month Mr B sent an email to school describing D’s problems. He highlighted that he was very able in the right environment.
18. On 1 May the school said he could no longer attend due to concerns about the safety of staff and other students, but it was not a suspension or permanent exclusion. The school sent work home during May and set up an additional one hour per day of online tutoring in maths from the beginning of June until 12 July 2024. The school did not arrange any off-site tuition due to safeguarding concerns about D’s behaviour.
19. In June 2024, D received a diagnosis of Autistic Spectrum Disorder. In July 2024 Children’s Services carried out an assessment of D as a child in need. It noted he was currently excluded from school, he was vulnerable and at risk of exploitation and needed multi-agency support to get back into education.
20. In August 2024 Mr B made a formal request for alternative education under section 19 of the Education Act 1996. I have not seen a reply to this request.
21. D had no educational provision from 1 September. Mr B made a second formal request for alternative education on 19 September. The Council replied on 23 September saying it would treat his email as a request for an EHC needs assessment and began to gather evidence. Internal communications indicate that the Council did not believe it could consider alternative provision as D did not have an EHC Plan. The Education Welfare Service said Mr B should complain to the school about alternative provision.
22. On 20 September the Department for Education (DFE) notified Mr B of its decision following his complaint that the school had not followed the law and statutory guidance when it prevented D attending school from 1 May 2024. Specifically, the DFE upheld all three of Mr B’s complaints that the school did not provide suitable alternative educational provision:
• Between 1 May and 2 June 2024 it only provided online work to complete at home.
• From 3 June to 12 July 2024 an additional one hour a day of online maths tuition was provided.
• From 15 to 19 July 2024 it only provided online work to complete at home.
23. The decision said that the school had been in touch with the Council throughout this period and the Council had advised the school to provide remote education and look at an alternative placement.
24. On 23 September D started his induction at an alternative provision (AP1) and on 30 September he started on a reduced timetable of 10 hours a week. On 4 October AP1 held a review meeting and noted that a second provision (AP2) would be set up for the two days he was not attending AP1, primarily for history and geography.
25. On 29 October, the Council’s SEN Panel noted that D was on a reduced timetable.
26. AP2 sessions (totalling 2 hours 40 minutes) started on 12 November and on 18 November 2024 the Council decided to proceed with an EHC Plan.
27. On 20 January 2025 D was suspended from AP1 and it sent work home for D to complete. On 27 January the suspension was confirmed as indefinite and D was handed back to the care of the school.
28. An educational psychologist assessed D in February 2025 as part of the EHC needs assessment.
29. Mr B says D had no educational provision from 27 January until 4 April. The school attempted to set up some alternative provision throughout February and March, but it did not start. The school said D could come in once a week for two hours which started on 4 April. D also received 80 mins tuition a week from AP2 from 4 April 2025.

Formal complaint

30. Mr B made a formal complaint to the Council on 2 April about the failure to fulfil its section 19 duty in respect of D. The Council said it had secured a place at AP1 for D following D’s challenging behaviour at school. When this finished in January 2025, it put a transition package in place with a view to getting D back into school: two mornings a week at school with additional support for D’s social and emotional needs from AP3 and additional online tuition in maths and English from AP2. The Council considered this was appropriate in the circumstances and did not consider it was section 19 case. It said if Mr B was unhappy, he should contact the school. It said as D did not have an EHC Plan he did not fall under the remit of the statutory SEN team at the Council, so the school was responsible for meeting his needs. It did not uphold the complaint.
31. Mr B complained to us on 14 April and made a further complaint to the Council on 15 April about the delay in producing an EHC plan. The Council responded on 30 April, upholding the complaint. It apologised for the delay in the EHC assessment process and said the draft was currently being prepared.
32. On 30 April Mr B escalated the complaint about alternative provision to stage two of the Council’s procedure saying the Council’s information on what had been provided was incorrect.
33. The Council responded on 30 May. It quoted a section of DFE guidance relating to part-time education being acceptable where full-time education is not in a child’s best interests. It went on to say that as D was not absent from school due to health reasons or permanent exclusion and remained on the school roll with a reintegration plan, the circumstances did not justify section 19 provision. The response came for a senior officer within the special educational needs department.
34. On 17 June the Council issued a final EHC Plan naming the school in section I.

Findings

Delay in the EHC needs assessment process

35. The Council did not complete the EHC needs assessment process and issue a final EHC Plan within the statutory 20 week timescale. The request was made on 23 September 2024 so a final EHC Plan should have been issued by 10 February 2025. The Council did not issue the final EHC Plan until 17 June 2025. This was a delay of over 18 weeks. This was fault which caused Mr B distress and inconvenience and contributed to D missing out on essential education and support.

Alternative Provision

36. The Council is clear in its policy on alternative provision that it has a duty to consider whether it should make alternative provision once a child has been absent for 15 school days. D stopped attending school on 1 May 2024, so the Council had a duty to consider whether to make alternative provision from 22 May 2024. The DFE decision makes clear that the Council was aware that D was not attending school between May to July 2024.
37. There is no evidence that the Council carried out an assessment of whether the provision in place was suitable and accessible for D. We do not consider work being sent home is education. So, the only education in place was five hours a week of maths tuition for five weeks in June and July 2024. The DFE did not consider this was in line with the statutory guidance. The Council has not acknowledged at any point that it had a duty to assess whether the section 19 duty was engaged and there is no evidence that it did so. This was fault which meant that D likely missed out on essential education and Mr B was caused distress and inconvenience in chasing up the Council and the School.
38. In response to a draft of this decision, the Council has provided a copy of minutes of a multi-agency professionals meeting held in August 2024 including an officer from the Council as evidence that it did consider its section 19 duty. The minutes show that the Council was aware from D’s parents and the school that he had not been in school since May 2024. The officer said they could allocate an officer to work with the school and the family to look at what would be an appropriate education offer for D and to help him engage with something. The Council says this is evidence that the Council did consider its section 19 duty. I disagree. It is evidence that the Council was aware D was not receiving any education, but it does not review the education he had received in June and July 2024, it does not assess if this was all he could manage or if there was something else he could access and there is no specific forward plan.
39. D had no education from 1 September 2024 until he started at AP1 on 30 September. There is no evidence the Council considered providing anything else during this period. This was fault which caused Mr B and D injustice.
40. The education provision at AP1 was only 10 hours a week with an additional 2 hours 40 mins a week from AP2 from 12 November 2024. This was not full-time and while there is evidence the Council noted it was a reduced timetable there is no evidence it considered whether this was appropriate. This was fault which caused Mr B and D injustice.
41. D received no educational provision from 20 January until 4 April 2025 and then again it was a very reduced timetable of a few hours a week. There is no evidence the Council assessed whether this was appropriate for D. This was fault which caused Mr B and D injustice

Additional fault

42. The Council was wrong to say in September 2024 that Mr B should complain to the school if he was unhappy with D’s educational provision. It does not matter whether or not a child has an EHC Plan: if they are out of education for more than 15 days the Council has a duty to assess whether section 19 is engaged and whether alternative provision should be made. It can involve the school in this process and liaise with it, but it is the Council’s responsibility to ensure the provision is in place.
43. The Council wrongly stated as part of its complaint response in April 2025 that the school was responsible for meeting D’s needs as he did not have an EHC Plan. This inaccurate information exacerbated Mr B’s distress as it was the Council’s fault that D did not yet have an EHC Plan.
44. It also failed to acknowledge the large gaps in alternative provision or how it had decided the provision was suitable for D. This was further fault which meant Mr B had to escalate the complaint to stage two.
45. The Council again wrongly stated as part of the stage two response that section 19 provision did not apply as D was not absent from school due to illness or permanent exclusion. It failed to mention the ‘otherwise’ category even though it was written by a senior officer in the department. This was fault which caused further distress to Mr B.
46. It is also concerning that the Council appears to have misrepresented its section 19 duty to Mr B for a prolonged period of time. It has failed to provide any evidence of a proper assessment of D’s circumstances or reasons as to why the small amount of provision was suitable for him.

Injustice

47. For the period of the investigation from 1 May 2024 until 14 April 2025, D had no education for approximately 5 months (1.5 terms) and a small amount of education (between 5 and 10 hours a week) for approximately 4 months. Mr B was caused distress and inconvenience in trying to resolve the situation.

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Action

48. In recognition of the injustice caused to Mr B and D I recommended the Council, within one month of the date of my final decision:
• apologises to Mr B and D; and
• makes a symbolic payment to Mr B of £2750 (1.5 terms @£1500 per term plus £500 for the uncertainty over the adequacy of the reduced timetable).
49. I note we have made service improvement recommendations in respect of Section 19 duties in six complaints in the last six months, the most recent being June 2025. I note the events in this complaint are contemporaneous with these six complaints, so it is difficult to conclude whether or not the recommendations have had any impact.
50. With this in mind, I recommended the Council within one month of the date of my final decision provides a review of the actions it has taken to improve staff knowledge and implementation of the Section 19 policy since April 2025, particularly following the referral to the Standards and Scrutiny Committees in July 2025.
51. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman