Summary: Ms X complained the Council failed to provide Z with a suitable education when he was unable to attend school. We have found the Council acted with fault for failing to maintain oversight of Z’s case and failing to ensure a timely referral to its decision panel. We also found the Council at fault for failing to have clear regard for its duties to secure suitable educational provision for Z. On the balance of probabilities, we find these faults caused Z to miss educational provision and caused Ms X avoidable distress and uncertainty. These are injustices. The Council has agreed to apologise and make a symbolic financial payment to recognise Z’s missed provision.

The complaint

1. Ms X complained the Council failed to provide Z with a suitable education when he could not attend school. Ms X said the Council’s faults caused Z significant avoidable distress, anxiety and uncertainty, also affecting his educational attainment. Ms X also experienced avoidable distress and uncertainty due to the Council’s faults.

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The Ombudsman’s role and powers

2. 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)
3. 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.
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 Ms X, her representative Mrs Y and the Council, as well as relevant law, policy and guidance.
6. Ms X, Mrs Y 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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Relevant legislation, guidance and policy

Alternative provision

8. 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 education provision.
9. 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)
10. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
11. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
12. 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’)
13. 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? published July 2022)
14. 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.

15. We also published practitioner guidance “Supporting children out of school” in October 2025, setting out further advice for professionals.
16. 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 section 19 policy

17. The Council publishes its section 19 policy on its website. The Council’s published policy says:
• As soon as it is clear a child will be away from school for 15 days or more, the school should hold a meeting with the family and the relevant professionals before making a referral to the Council's hospital school. The referral should include relevant medical evidence.
• A fortnightly panel will determine whether the referral meets the criteria for the council's section 19 duty, or whether the school should be required to meet the child's needs with support. The panel will agree what service is needed to meet the pupils individual needs and circumstances.
• If a referral is accepted, the policy sets out a number of approaches that could be applied, depending on individual circumstances.

Education, Health and Care (EHC) Plans

18. A child or young person with special educational needs 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. 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 the council can do this.
19. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

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What I found

20. Below is a summary of the relevant key events. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
21. The Council issued Z’s final EHC Plan in June 2023. In May 2024, Ms X contacted the Council, concerned the plan had not been updated and that School J was not delivering the special educational provision detailed in Section F, affecting Z’s progress. She sought an annual review before the end of the academic year, asking the Council to attend. The Council said it would ask School J to propose some dates for a meeting. The Council said parents usually arranged reviews directly with the school and the Council would attend if possible.
22. On 20 May 2024, Mrs Y complained to the Council on Ms X’s behalf. Mrs Y complained about Z's lack of suitable educational provision, highlighting the Council’s section 19 duty and the statutory timescales associated with reviewing and issuing EHC Plans. The Council asked School J to arrange an emergency review and refer Z to its hospital school panel. The Council told School J it would discuss Ms X’s request for tutoring with her directly. School J queried if it could make a direct referral to the hospital school panel and the Council confirmed it could.
23. An emergency review took place on 6 June 2024. The notes of the meeting reflect Z wanted to return to School J, but had struggled with anxiety. Ms X sought an updated Educational Psychologist (EP) assessment, though the Council noted EP availability was limited. Ms X and Mrs Y agreed awaiting the outcome of the EP assessment would help better understand Z’s needs. The Council made a referral for an EP assessment. Meanwhile, School J was to explore using an AV1 robot, which enabled children to access class lessons remotely, and follow up on the hospital school panel referral. School J asked whether an Early Help assessment was necessary to make the referral; the Council clarified it was not.
24. On 12 June 2024, the Council responded to Mrs Y’s complaint. In sum, the Council said Z’s attendance stood at 81%. It said in these circumstances, it would expect School J to first try and resolve attendance concerns, before considering whether it owed a duty under section 19.
25. In November 2024, Mrs Y said Ms X contacted School J to follow up on the referral to the hospital school panel, as Z’s wellbeing had deteriorated.
26. On 10 December 2024, the EP provided their report. In the short term, they recommended Z receive a personalised curriculum with self-directed learning, wellbeing activities and up to two hours of tutoring per day in literacy and numeracy. In the long term, once Z could return to a mainstream setting, the EP recommended learning in small groups, with measures such as movement breaks and a tailored curriculum.
27. The Council spoke with School J on 8 January 2025. School J said Ms X had asked about a referral to the hospital school, but had not wanted to engage with an Early Help assessment, preventing the referral. School J said Z was not engaging and struggled to attend school. It said it planned a review for February 2025. Ms X told the Council she did not want an Early Help assessment, but professionals supporting Z felt the hospital school would suit his needs. Ms X asked for interim tuition to help build Z’s confidence. The Council said it would attend the review meeting and asked School J to arrange tuition using the existing funding allocated.
28. On 3 February 2025, the review meeting went ahead, though the Council did not attend at the last minute due to officer illness. At the meeting, it was confirmed there had been no referral to the hospital school panel for Z.
29. Following the review meeting, the Council consulted with School J. School J told the Council it had provided access to online learning for Z, but Z had not engaged with this. This was not through use of the AV1 robot. School J said it had asked an alternative provision provider (Provider 1) to assess Z and had sought to engage Z with a small group of his peers. When asked if it had referred Z to the hospital school, School J asked the Council whether it had advised Ms X of the need for an Early Help assessment. The Council reiterated School J should make the referral to the hospital school.
30. On 26 February 2025, Mrs Y complained to the Council on Ms X’s behalf. Mrs Y said the Council had failed to meet its section 19 duty. She said the Council’s previous response had focused on attending the review meeting, rather than meeting its statutory responsibilities. She said the agreed actions – a referral to the hospital school panel and consideration of home tutoring – had not been completed. Mrs Y said Z had received no education since the previous complaint, and no support from School J or the Council. Mrs Y said only the EP assessment had been completed and this had been significantly delayed. Mrs Y said the Council failed to attend the urgent review in February 2025 and asked why it did not send an alternative officer. Mrs Y said the Council’s disregard for its section 19 duty was a serious concern. She sought an apology, a plan for Z, an Occupational Therapy (OT) assessment and a financial remedy.
31. On 26 February 2025, the Council referred Z for an OT assessment.
32. On 5 March 2025, the Council responded to Mrs Y’s complaint:
• It said the referral to the hospital school depended on Ms X engaging with the Early Help service. It suggested a referral had already been made and rejected for this reason, with a new referral now being made.
• The Council said at the June 2024 review, Ms X had asked that additional support be paused, pending the outcome of the EP assessment. The Council said it could put home tuition in place if Ms X now thought this was suitable.
• The Council said in June it had asked School J to provide alternative education for Z, including implementing an AV1 robot and making the hospital school referral. It accepted its absence from the most recent review caused frustration, but said it could not arrange cover on short notice. It said schools were experienced in conducting reviews without the Council being present and it had since followed up with School J.
• The Council said it had completed or progressed the actions agreed at the June 2024 review: an EP had assessed Z, the Council had asked School J to make the hospital school referral, and the Council had provided funding for sessions with Provider 1. The Council said School J was proactively supporting Z by providing access to online lessons and facilitating engagement with a small group of Z’s peers. The Council said it continued to provide support and chase referrals where needed. It had also commissioned an independent OT assessment.
• The Council said Mrs Y should ask the Ombudsman to consider a financial remedy for any missed provision. It apologised that some of the strategies used for Z had been unsuccessful and said it wished to continue to work with Ms X and School J to support Z.
33. School J told the Council Z was engaging positively with Provider 1, but said it was finding it difficult to get input from health professionals to complete the hospital school referral.
34. Mrs Y escalated her complaint on 23 March 2025:
• Mrs Y said it was unclear whether the Council had upheld the complaint and its response was factually incorrect. She said she and Ms X had challenged the need for an Early Help assessment in the June review meeting. The Council had then confirmed in writing this was not needed for a referral to the hospital school. Mrs Y said she and Ms X had believed a referral had been made, but had not heard anything further. It was only in 2025 they discovered no referral had been made.
• Regarding a pause in support, Mrs Y said this was only partially correct. She said Z had wanted to return to School J, but Ms X had then contacted School J in November 2024 to follow up on the referral, due to Z’s worsening wellbeing. She said the EP report later confirmed Z’s needs. She said School J and the Council had not acted on this information.
• Mrs Y said as of February 2025, Z’s attendance was just over 20%. She said it had been more than four months since Ms X asked for help in November, and more than 10 months since Mrs Y raised concerns. She said the Council remained responsible for its section 19 duty. Mrs Y said School J had not been proactive, as nothing had been offered before February 2025. She also said approaching the Ombudsman to discuss a financial remedy should not be necessary.
35. In late March 2025, School J told the Council it had sought input from health professionals on the referral to the hospital school, but had not yet received a response. It said it would follow this up.
36. On 14 April 2025, the Council responded to Mrs Y’s escalated complaint:
• It said a new hospital school referral was being completed, pending input from health professionals.
• It said School J had provided online learning access for Z, provided support from a small group of peers, and commissioned support from Provider 1.
• It said concerns around how Z’s absences were recorded were an issue for School J to address.
• The Council said it had maintained communication with Ms X. It said it had met its duties by providing funding for Provider 1, arranging EP and OT assessments, and supporting referrals for the hospital school. It said requests for 1:1 tuition were for School J to address, and School J could have requested additional funding if it thought this was necessary. It noted Z was on the waiting list for an OT assessment.
• The Council said it did not uphold the complaint.
37. On 30 April 2025, School J referred Z to the hospital school panel.
38. In May 2025, Ms X told the Council and School J she was struggling to educate Z at home and again sought home tuition, with a qualified teacher. She also sought some ideas for part-time provision. School J told the Council it had funded Provider 1 and completed the referral to the hospital school. It said the online learning it had provided access to was still available for Z.
39. In June 2025, the hospital school panel rejected Z’s referral to the hospital school setting. The panel recommended providing advice and guidance to build on the provision from Provider 1. It suggested a hybrid education approach may be beneficial, incorporating use of an AV1 robot.
40. Ms X sought advice on the panel’s rejection of the hospital school. She also highlighted a potentially suitable alternative provision setting (Provider 2). She maintained the online lessons the Council provided were ineffective and Z had received no provision other than weekly sessions with Provider 1. School J said it would seek clarity around the panel’s decision and contact Provider 2. Ms X reiterated the need for 1:1 tuition and said the delayed referral had led to months of missed provision for Z.
41. In late June 2025, the Council agreed to provide School J with additional funding to maintain Provider 1 and commission Provider 2 from September 2025. The AV1 robot was also deployed in September 2025.
42. On 21 July 2025, the Council issued Z’s amended final EHC Plan, naming School J.

Analysis

Did the Council act with fault?

43. Mrs Y told the Council in May 2024 that Z was unable to attend School J due to mental health difficulties. The Council promptly asked School J to arrange a review meeting and to make a referral to its hospital school service. The Council attended the review meeting, which took place two weeks later. Following this, the Council made a referral to an educational psychologist to assess Z’s needs. It also confirmed to all parties an early help referral was not necessary to complete a referral to the hospital school service. In its June 2024 complaint response, the Council said, given Z’s then-level of attendance, it would expect School J to try and address any concerns before considering more direct intervention under its section 19 duty. I understand at this point, there was broadly common agreement on the actions taken and likely timescales. I have not found the Council at fault for its initial response.
44. However, I consider the Council was then on notice as to the concerns in Z’s case. It should have maintained oversight of the progress made against the actions agreed in the June review, being ready to intervene pursuant to its section 19 duty, if needed.
45. I find the Council did not do this. There is no record of any substantive contact or review by the Council between June 2024 and January 2025, when the Council next discussed the matter with School J. This meant:
• the Council was unaware there had been no referral to the hospital school until January, with School J continuing to cite uncertainty over whether an Early Help assessment was a condition for such a referral. As far as I understand, an Early Help assessment was not needed. The Council’s policy made no mention of this being a requirement. School J eventually made the referral in April 2025 without this, after obtaining input from health professionals.
• The Council also appeared to have taken no action in respect of the EP’s findings from December 2024, on what short-term education arrangements would best suit Z.
46. In its complaint responses, the Council continually placed the onus for referrals and decision-making onto School J. I would emphasise that while councils can ask parents or schools to make referrals as part of their section 19 procedures, councils remain responsible for both the overall administration of the procedure and for ensuring they make timely decisions on their section 19 duty. If referrals are needed, the Council should ensure these are made quickly, so it can effectively discharge its duty.
47. I asked the Council when and how it decided whether it owed Z a section 19 duty, and how it considered the provision offered to Z was suitable. The Council referred me to the panel’s decision on 9 June 2025. The panel’s decision was that the hospital school setting was not agreed, but it would provide advice and guidance on maintaining the support from Provider 1, while offering use of an AV1 robot, intended to allow students to remotely participate in classes from home. On the basis of this decision, School J subsequently explored another alternative provision setting, Provider 2, and the Council agreed to provide funding for these arrangements.
48. I have concerns about the Council’s response. As set out, the panel considered Z’s case in June 2025. This was over a year after Mrs Y specifically asked for alternative provision under section 19. In that time, I understand that:
• Up to February 2025, there were no specific educational arrangements in place for Z when he could not attend School J. His attendance during this period was minimal.
• Following the review in February 2025, School J provided online learning access for Z, though Ms X explained this was unsuitable and School J acknowledged Z did not access it. Ms X’s concerns about whether this was accessible for Z appear not to have been considered, with School J only emphasising the sessions were available to Z. The Council appears not to have turned its mind to the question of suitability at any point.
• From March 2025, an alternative provision provider (Provider 1) began offering Z weekly mentoring sessions, though I understand these sessions did not consist of academic study.
49. The Council appears not to have considered whether these arrangements constituted suitable educational provision for Z at any point.
50. Z also had an EHC Plan. The Council had a duty to ensure Z received the special educational provision set out in Section F of his plan, as per paragraph 19. This duty is absolute and non-delegable, and the Council must consider how it can deliver any quantifiable provision in the plan even when a child is out of school. I asked the Council how it considered this duty and it referred me generally to actions it and School J had taken. However, I have seen no evidence showing contemporaneous consideration of this duty.
51. Further, the Council’s approach to determining whether it owed a duty under section 19 was then unclear. The Council appeared to conflate a referral to the hospital school panel, and the panel’s assessment of whether the hospital school setting was suitable, with the Council’s overarching obligation to decide whether it owed a duty under section 19. The Council’s section 19 policy outlined a range of possible pathways for children in different circumstances, making clear that admission to the hospital school was not the only outcome. However, the policy did not clearly specify whether implementing any of these alternatives – such as deploying the AV1 robot, or expanding existing alternative provision offers – constituted the Council accepting its section 19 duty.
52. It is therefore unclear whether the Council regarded its section 19 duty as arising only when it approved admission to the hospital school, or whether the section 19 duty was also accepted when any of the other forms of provision or support were implemented. The panel’s decision for Z did not clarify this, or specify whether section 19 was accepted.
53. Having carefully considered the above, I have found the Council acted with fault, for:
• Failing to maintain oversight of the concerns raised in Z’s case;
• Failing to have clear regard for its s42 duty to secure the special educational provision in Z’s EHC Plan.
• Failing to demonstrably consider or promptly act on the short-term recommendations set out by the EP;
• The delayed referral to the hospital school panel; and
• For failing to make and communicate a clear, distinct decision about its section 19 duty and whether it thought the education offered to Z was suitable.

Did the Council’s faults cause an injustice?

54. The Council’s decision to provide funding to both maintain Provider 1 and commission Provider 2, as well as implementing use of an AV1 robot to provide Z with remote learning, indicates an implicit acceptance of its section 19 duty, even if not clearly stated. These arrangements were fully in place from September 2025. The Council and Mrs Y told me these alternative provision arrangements are working well and are suitable for Z, with there being an intent to increase Z’s overall capacity to engage. Prior to this, the arrangements in place for Z for the 2024/25 academic year provided minimal support and accessible educational provision.
55. I have sought to consider what would have happened, had the Council acted without fault in Z’s case:
• I accept some time would have been needed to complete the actions agreed in June 2024 and assess the outcome.
• Had a timely referral been made to the hospital school panel, it seems likely the panel could have returned its decision by at least the beginning of the 2024/25 academic year, in September, for the Council to consider.
• The EP report appears unlikely to have been returned before December 2024 in any event.
• Section F of Z's EHC Plan largely comprises of non-quantifiable strategies staff should use when working with Z that, in practice, are not easily separable from attendance at School J. However, there are some potentially separable elements, such as specific handwriting interventions and general input from a speech and language therapist, that could have been delivered in other settings.
56. The panel’s decision was key in the Council agreeing additional funding to allow School J to secure and expand alternative provision for Z. Therefore, had the Council ensured a timely referral was made and considered, I believe it likely, on the balance of probabilities, that the arrangements agreed in June 2025 and implemented in September 2025 could have been implemented by at least November 2024.
57. I accept there is some uncertainty about Z’s capacity to engage with any provision offered. This is why maintaining clear oversight of a child’s circumstances is important, as capacity can fluctuate and it is important to regularly review provision to ensure this fluctuation is addressed. Nevertheless, I believe Z could have been receiving alternative provision suitable for his age, aptitude, ability and special educational needs, from at least November 2024 to July 2025, but did not do so. That Z did not receive this provision is an injustice.
58. Ms X also experienced injustice, in the form of avoidable frustration and distress, because of the Council’s faults.
59. I have recommended the Council act to remedy this injustice.
60. In comments to the Ombudsman, the Council said it had been aware its section 19 policy required improvement. It said it had since updated and adopted a new policy in late 2025, addressing the ambiguities identified in paragraphs 51 and 52. I have not therefore made any further recommendations in respect of this.

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Action

61. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Pay a symbolic financial remedy of £3000 to recognise Z’s missed educational provision. This is a figure of £1200 per term for approximately 2.5 academic terms, between November 2024 and July 2025. I have had regard for the Ombudsman’s Guidance on Remedies when recommending this figure. I have considered Z was a young person with an EHC Plan, who received minimal educational provision during a year that marks the start of preparing for public exams. There is some uncertainty around Z’s capacity to engage with provision at different times in the academic year and I have accounted for this in my recommendation.
62. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman