Summary: We cannot investigate Mrs X’s complaint about the Council’s delay in completing her child’s Education, Health and Care Plan because Mrs X took legal action against the Council. We have investigated Mrs X’s complaint about the alternative education provided while her child had no school place. We find some fault in that the Council failed to consider properly the suitability of the alternative provision. The Council has agreed the recommended ways to remedy the injustice. Accordingly, we are closing the complaint.

The complaint

1. Mrs X complained that the Council:
1. delayed in issuing her child’s (Y’s) Education, Health and Care (EHC) Plan;
2. failed to provide alternative education when Y was out of school with no school place;
3. there was poor communication between Mrs X and the Council’s special educational needs (SEN) department; and
4. a delay in dealing with Mrs X’s complaints.
2. Mrs X says that Y has missed a substantial amount of education, causing social isolation and becoming academically behind Y’s school peers. Mrs X has been caused avoidable distress and time and trouble in pursuing her complaints.

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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’.
4. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

6. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended). The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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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What I have and have not investigated

11. I am looking at events between the date Mrs X requested an EHC needs assessment (December 2023) to early May 2025 when Mrs X made her complaint to us.
12. However, Mrs X has now told us that in August 2024 she filed at court a judicial review of the Council’s delay in issuing an EHC Plan. The judicial review was refused but advice given to the Council to obtain specialist assessments.
13. However, in accordance with our jurisdiction, we cannot consider any complaint whereby the complainant has sought a legal remedy. Therefore, I am not investigating Mrs X’s complaints about the Council’s delay in issuing an EHC Plan for Y, also the drafting issues of Y’s EHC Plan and the communication between Mrs X and the special educational needs (SEN) department. Mrs X sought a legal remedy covering these very issues.
14. Mrs X also complained about the content and description of Y’s special educational needs and provision as set out in her July 2025 final EHC Plan. But I am not investigating this aspect because Mrs X could have appealed to the SEND Tribunal about these matters.
15. I can investigate the Council’s actions in respect of the educational provision for Y while it was undertaking the EHC needs assessments and completing the final EHC Plan (complaint b). And Mrs X’s concerns about the Council’s delay in dealing with her complaints (complaint d).
16. I have taken December 2023 as the start date even though Mrs X did not complain to us within twelve months of when she realised something had gone wrong. This is because Y’s non-attendance at school has been ongoing.
17. Any complaints about the Council’s actions after May 2025 are new matters.

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How I considered this complaint

18. I considered evidence provided by Mrs X and by the Council as well as relevant law, policy and guidance, set out below. I have spoken to Mrs X on the telephone, and she has had an opportunity to comment on the Council’s response to my enquiries.
19. I issued a draft decision statement to Mrs X and to the Council, and have taken into account any further comments before I reached a final decision.

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What I found-Legal and administrative

20. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.
21. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education (children missing from education). 
22. 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.
23. 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)
24. The Children, Schools and Families Act 2010 clarified that a suitable education means fulltime education. The only exception is where the physical and/or mental health of the child means fulltime education would not be in the child’s best interests.
25. 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 on alternative education

26. The Council’s May 2024 policy states that it is responsible for arranging alternative education for pupils (aged five to sixteen) whether they are on roll at a school or not. Schools, parents and carers are advised to seek advice from the Council’s Education Welfare Service (EWS). The Council’s EWS has oversight of this area of responsibility.
27. The Council retains responsibility for supporting pupils who are not on school roll. They may be children whose parents/carers have decided to educate children at home, or who are awaiting a school placement. In this instance, parents/carers and professionals should contact the Council’s EWS.

The Council’s complaint procedures

28. The Council has a two-step corporate complaints procedure. But first, the Council will try to resolve the matter informally. If this is not successful, the first step involves a formal investigation, and the second step is an overview by a senior manager. Complainants should provide new evidence at this second stage to warrant further investigation.
29. At step two, the Council will advise complainants to refer their complaints to the Ombudsman if there is no new evidence or if it has been a long-running case where the topic has been investigated in detail and it is felt that there is nothing more to add.
30. The Council should complete step one within ten working days, but this can be extended to twenty working days. The Council has twenty working days to complete a step two review.
31. The Council deals with education complaints under its corporate procedures.

Key facts: 2023 - 2024

32. Y was registered at a local mainstream primary school (School B) and entered the final year in September 2023. In November 2023, Mrs X withdrew Y from school because of Y’s poor mental health and because Mrs X felt attendance at this school was detrimental to Y. Mrs X says that this was on advice of Y’s General Practitioner (GP).
33. Mrs X informed the Council of her decision to withdraw Y. The Head of School B also wrote to the Council explaining that it could not meet Y’s needs.
34. In December 2023, Mrs X requested an EHC needs assessment.
35. Between November 2023 and February 2024, Y received no education. But Mrs X says that, with hindsight, this was in Y’s best interests at that time. In February, Y gradually started to return to School B, attending small classes. But from May 2024, School B was unable to provide these classes. Y then found it harder to attend. Y remained on the school roll for School B, so at that stage School B remained responsible.
36. Mrs X applied for a place at a secondary school, School C, for Y starting in September 2024. School C offered Y a place. But both School B and School C told Mrs X that School C was inappropriate for Y. Mrs X therefore withdrew the application because she considered Y would not be able to cope at School C.
37. Mrs X did not apply to any other secondary school.
38. Mrs X says that the Council was fully aware that Y did not have a school place from September 2024 and was not receiving any education. In September 2024, the Council’s special educational needs (SEN) department contacted the Education Welfare Service (EWS) about Mrs X’s request for section 19 alternative education. The Council says that it does not have a record of this.
39. In October, Mrs X told the Council that Y had received a diagnosis of autism. In December 2024, the Council contacted her regarding the fact Y was not in education. Mrs X says that the Council suggested that they either sent Y to the allocated secondary school (School C) despite professionals advising that this was inappropriate, or they electively home educated Y. Mrs X says that she was unwilling to do either option. Mrs X requested section 19 alternative education.
40. The Council then told her that Y’s EHC Plan would be issued shortly, and an educational placement arranged then.

2025

41. In January 2025, in the absence of any alternative education, Mrs X contacted the EWS. The Council agreed to provide ‘exceptional’ funding for Y to receive some education from a provider, Provider C, an online provider.
42. Y was allocated tuition in three subjects, and then a fourth after Mrs X had complained. This amounted to twelve lessons per week, forty minutes long, all online. Y’s attendance was good and Y did well. Mrs X says that there was no explanation why Y could not receive more tuition. The Council says that it has no record of a request for more tuition.
43. Mrs X says that she had asked for tuition from an alternative provider, Provider D. The Council says that, because Y was doing well with Provider C, it considered it appropriate that Y remained there.
44. In mid-2025, Y was offered a place at an independent special school, (School E) which was named in Y’s final EHC Plan. The Council says that School E did not require Y to have an EHC Plan to attend. The Council says that Mrs X could have applied for a place there at any time. Mrs X says that Y will have some catch up sessions at School E.

The Council’s investigation

45. Mrs X complained formally to the Council in early March 2025. The Council sent its step one complaint response to Mrs X within twenty working days. The majority of Mrs X’s complaint and the Council’s response dealt with the complaints about the delay, the drafting and the legal issues in respect of Y’s EHC Plan which are matters outside our jurisdiction to investigate.
46. Mrs X was dissatisfied with the response and responded at the end of March 2025. Mrs X’s letter went into the legality of the Council’s approach to the drafting of Y’s EHC Plan.
47. Mrs X did refer also to the interim education which Y had received since not being in school. Mrs X explained that, between September and December 2024, the parents supported Y in continuing with education. From January 2025, Mrs X told the Council that Y was only receiving ten hours tuition per week from Provider C. But, despite this, Y had continued to study other subjects and had been commended by Provider C.
48. The Council received Mrs X’s response to its stage one decision on 4 April, and it replied on 27 April 2025. The Council explained that it was unable to proceed to its step two review because Mrs X had provided no new evidence. The Council advised Mrs X to complain to the Ombudsman.

Mrs X’s complaint to the Ombudsman

49. Along with complaints about the delay and drafting of Y’s EHC Plan, Mrs X referred to the fact Y had only received limited part-time online provision. Mrs X said that Y had missed two terms of formal secondary education. She said that Y risked long-term disengagement from education and harm to Y’s mental health.
50. Mrs X said that the strain on the parents had been considerable and caused a disruption to their work and financial resources.

Findings: Complaint (b): failure to provide suitable appropriate alternative education when Y was out of school and had no school place

51. During 2023/2024, Y had a place at School B. Mrs X has said that, initially, it was appropriate for Y to have time out of school. So, there is no fault by the Council.
52. In February 2024, Y attended School B on a reduced time timetable and also attending small classes arranged by School B with a view to reintegration. I am satisfied that, at this point, Y was receiving suitable education at an available school, and therefore I find no fault by the Council.
53. Between the end of May to July 2024, Y did not attend School B as regularly because School B could no longer offer the small class size which Y required and benefitted from. But, at this stage, School B retained responsibility for Y’s education. So, I do not find fault by the Council.
54. Mrs X told the Council that Y would not have a school place starting in September 2024. Mrs X says that also, in September 2024, the SEN department referred Y’s school absence to the EWS in accordance with the Council’s policy. Mrs X did not hear from the Council until December 2024. There was therefore a delay by the Council in picking up on the fact that Y was missing from education.
55. Therefore, I find fault here.
56. In respect of the period of January to early May 2025, the Council accepted it had a duty to provide alternative education. So, I do not find fault.
57. In respect of the suitability of the alternative education from January 2025, the Council says that it received no request for additional tuition hours and it also considered that Provider C was working well for Y. I recognise that Mrs X considers this was insufficient tuition for Y. It was also online tuition rather than face-to-face. Hence Mrs X asked for tuition from another provider, Provider D.
58. In its response to our enquiries, the Council has said that it did not think Provider D was appropriate for Y and, in any event, Y was doing well with Provider C.
59. Mrs X has also stated in her complaint to the Council that Y was doing well while receiving tuition from Provider C.
60. It is not clear how the Council determined, at the time, the number and type of hours of tuition Y should receive between January and May 2025. The Council says that ten hours were appropriate. But the Council has not provided the evidence to how it reached this view. So, I find fault here. It is important for the Council to show how it determines the number of tuition hours, and whether online or face-to face, that it will provide when dealing with requests for alternative education. This should also be kept under review.
61. However, it is also clear, based on Mrs X’s comments, that Y responded well to the tuition provided by Provider C. I do not doubt that Y did well because she also benefitted from the parents’ support and encouragement at this time, and this would have caused some disruption to the parents’ lives.
62. Therefore, while there is some fault, the resulting injustice is lessened by the fact that Y continued to do well academically and Y will receive some catch up sessions at the new school, which should help mitigate the previous lack of fulltime education.

Complaint (d): the delay in dealing with Mrs X’s complaints

63. Councils have the discretion to devise its own complaints policies. In this case, the Council dealt with Mrs X’s complaints in accordance with its corporate policy. Much of Mrs X’s complaints concerned legal issues around the drafting of Y’s EHC Plan which ultimately would have been for the SEND Tribunal to determine.
64. The Council, at step one, did answer some of these legal issues. At step two, the Council considered Mrs X had not provided any ‘new’ evidence and therefore advised her to complain to us. This was in keeping with its corporate complaints policy. So, I do not find fault here.
65. I also do not consider there was any undue delay by the Council in dealing with the complaint. Mrs X raised complicated matters which the Council endeavoured to answer within the timescale required.
66. Therefore, I find no fault by the Council.

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Action

67. Within one month of the final statement, the Council will:

• apologise to Mrs X for the faults which I have identified in respect of the delay in picking up that Y was missing from education and for not providing a clear rationale for the number of hours tuition it provided to Y;
• make a small symbolic payment of £500 for the injustice caused by the above faults which Mrs X can use to Y’s benefit; and
• the Council does not have a policy about the number of hours of tuition it should provide when arranging alternative education, or a regular review system. The Council should consider whether it should provide guidance to officers about how they should determine the number of hours tuition to be given, the type of tuition and how often this should be reviewed.

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

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Decision

69. I find fault causing injustice. The Council has agreed the remedy and therefore I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman