Summary: There was fault by the Council in failing to have oversight of alternative education when a pupil was severely absent over an extended period. This casts doubt on whether the education offered was suitable. It is too speculative to say whether, but for this fault, the pupil would have been able to engage in more education. This uncertainty is an injustice. The Council will apologise, make a symbolic payment to acknowledge the distress and uncertainty, and carry out service improvements.

The complaint

1. Mx X complains that the Council:

• failed to provide alternative education under s.19 Education Act 1996 for her child while they were unable to attend school;
• delayed issuing her child’s Education, Health and Care (EHC) plan; and
• named an unsuitable school in the EHC plan.

2. As a result of the alleged fault Mx X says her child missed out on provision and their education and welfare have suffered.
3. Mx X wants the Council to name a specialist setting or put a fulltime package of Education Otherwise than at School (EOTAS) in place. Mx X wants a specialist school that can offer counselling and interim tutoring at home. Mx X wants catch-up provision and financial compensation for years of education missed.

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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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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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How I considered this complaint

11. I considered evidence provided by Mx X and the Council as well as relevant law, policy and guidance.
12. Mx X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. 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

Relevant law and guidance

14. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.
15. 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. 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.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
17. The law does not define full-time education but children with health needs should have provision, where possible, which is equivalent to the education they would receive in a mainstream school.
18. Government Guidance ‘Summary of responsibilities where a mental health issue is affecting attendance’ was issued in February 2023. It recommends schools should create a plan to alleviate barriers to attendance and agree and regularly review this plan with parents.
19. The plan may involve making referrals to external mental health professional support or working with other services through a team around the family (TAF) approach.
20. Where support is not engaged with by families, schools should work with councils to decide whether to formalise support or enforce attendance. Schools should inform the Council where pupils are likely to miss more than 15 days and work with the family to provide educational provision whilst determining with the Council whether alternative provision should be provided under s.19 Education Act 1996.
21. Seeking medical evidence may be appropriate to assess whether an illness is likely to prevent the child from attending for extended periods.
22. Government Guidance ‘Working together to improve school attendance’, August 2024, says councils should have a school attendance support team that supports access to multi-disciplinary support for families such as Early Help, to unblock barriers to attendance. Councils should hold regular conversations with schools to identify pupils at risk of poor attendance. This should include reviewing and agreeing plans and targeted support for severely absent pupils, including cases already discussed at other multi-agency meetings but where additional action is deemed necessary. Schools and councils are expected to have an agreed joint approach for all severely absent pupils.
23. Government Guidance ‘Arranging education for children who cannot attend school because of health needs’, December 2023 says where possible, the child’s health needs should be managed by the home school so that they can continue to be educated there with support, and without the need for the intervention of the council. However, as soon as it is clear the home school can no longer support the child’s health needs and provide suitable education, the school should speak to the council about putting alternative provision in place.
24. The Guidance says it is good practice for the Council, home school, the child and parents / carer to work closely together when considering arrangements for a child who is too unwell to attend school. The council should, alongside the child’s home school, regularly review the provision offered to ensure it continues to be appropriate and is providing suitable education.
25. Government Guidance ‘Arranging Alternative provision’, February 2025 says councils should have robust criteria and clearly set out roles and responsibilities to ensure there is rigorous oversight and a continuum of support surrounding every child placed in alternative provision. Councils may use advisory panels to identify needs and source the most suitable provision.
26. Where a pupil has an Education, Health and Care (EHC) Plan the Council must be closely involved in any decision about placement in alternative provision.
27. After a suitable placement is identified the commissioner and the alternative provision setting should agree the nature of the intervention. The provider should set out the objectives and timeline in a personalised plan for the child. The provider and commissioner should review progress at least half-termly.
28. Schools can commission alternative provision but should inform the council to ensure the council maintains oversight ‘of sufficiency and safeguarding’. The Guidance states in circumstances where funding and decision-making are devolved to local schools, the local authority still retains the s.19 duty. This means arrangements made by schools are done so on behalf of the Council in discharge of the Council’s s.19 duty.
29. 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. 
30. 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.

What happened

31. The following is a summary of key events. It does not include everything that happened.
32. Mx X’s child started to struggle to attend school due to anxiety in 2022. The school reported the non-attendance to the Council and provided the Council with advice from the General Practitioner (GP) that attendance should reduce to two days per week on medical grounds. The Education Welfare Officer was involved at that time but, due to medical authorisation for absence, the Council said no action was taken.
33. In early 2023 the school told the Council it was providing remote learning. The family was also referred to Early Help.
34. Mx X requested an assessment for an EHC Plan, which the Council refused. My understanding is Mx X appealed this decision, and an assessment was carried out in 2023. The Council decided not to issue an EHC Plan following the assessment as it said needs could be met in a mainstream school. Mx X appealed this decision to Tribunal in late 2023.
35. In September 2023 Mx X’s child was due to start mainstream secondary school but never attended. The school advised the Council via its child missing education report that Mx X’s child was awaiting a place with the Education Otherwise than at School (EOTAS) service. This is a service that provides alternative education for pupils with medical needs. I understand a place was allocated in late September 2023. Early Help closed the case on the basis education was now in place.
36. Mx X’s child was referred for mental health support in Autumn 2023 but missed several sessions. The referral noted attendance at EOTAS had been intermittent and currently Mx X’s child was rarely leaving their house. The EOTAS support was set at three hours per week one-to-one support.
37. An Educational Psychology report in Summer 2024 noted Mx X’s child had attended EOTAS for 5 weeks in Autumn 2023 and once in Spring 2024. A child and family assessment in Summer 2024 noted Mx X’s child had not left their house in three months.
38. The Council referred to the alternative education in its response to the Tribunal appeal in mid-2024. It stated Mx X’s child was on roll at mainstream secondary but currently under the EOTAS service. The Council said the reasons given by Mx X for non-attendance at EOTAS were physical illness or being tired due to lack of sleep.
39. In Summer 2024, Mx X referred herself back to Early Help for support with the EHC process.
40. In Autumn 2024 Mx X and the Council agreed a consent order resolving the EHC appeal; the Council agreed to issue an EHC Plan. The Council issued the Plan in early 2025, two weeks late, naming the existing mainstream secondary school where Mx X’s child was on roll. Mx X appealed Sections B (needs), F (provision) and I (setting) to the Tribunal. This appeal is pending. The Plan stated Mx X’s child had worked with the EOTAS service since 2023 accessing lessons one morning per week. Mx X disputes this.
41. In September 2024, home tuition was provided by the EOTAS service for four weeks after which Mx X was told provision would move to a hub. Mx X reports the home tuition was successful. When tuition moved to the hub Mx X’s child attended only one session, although this was noted to go well.
42. In late 2024, Mx X’s child became less comfortable about leaving the house. After many missed sessions the school started to mark absence as unauthorised. The EOTAS service was withdrawn due to non-attendance in January 2025. No action was taken to enforce attendance.
43. Mx X’s child was referred by Early Help to the Children’s Wellbeing Practitioner in late 2024, but when they did not attend, the referral was closed in January 2025.
44. Early Help records record that Mx X considered EOTAS needed to be more flexible given her child’s needs at that time and more home tuition should have been provided. Mx X expressed dissatisfaction with the education provided since 2022.
45. Mx X made a formal complaint to the Council in early 2025. The Council provided complaint responses in February and May 2025. It accepted minor delay in issuing the EHC Plan after the consent order but did not accept any failure in relation to alternative education.
46. In late January 2025 the school offered an online education provider accredited by the Department for Education.
47. In or about May 2025 Mx X’s child started to attend a programme specifically for pupils with an EHC Plan who are unable to attend school and who require a bespoke package to reintegrate. This programme is provided via a different school than is named on the EHC Plan.

Council complaint response / response to my enquiries

48. The Council told me Mx X’s child was under the EOTAS service from Autumn 2023 until Spring 2025. In its complaint response it told Mx X this was a school facing service. I understand this to mean that provision is decided and commissioned by schools.
49. In response to my enquiries the Council told me it accepts Mx X’s child is a s.19 learner however, as the schools have provided appropriate alternative options, it has not needed to intervene. It told me as a result the Council did not need to make any s.19 decisions, and it has not issued any decision letters and has no notes about the s.19 duty.

Analysis

What I have and have not investigated

50. Mx X complained to us in April 2025. I have investigated events twelve months prior to this date, from April 2024. (Local Government Act 1974, sections 26B and 34D, as amended)
51. I have not investigated the period before April 2024. If Mx X was dissatisfied with the s.19 education offered I consider she should have raised this with the Council at the time. Mx X did not raise a complaint until January 2025.
52. I have investigated the period April 2024 to May 2025 when the Council provided its final complaint response. From May 2025 Mx X’s child was enrolled in a new s.19 programme of education. If Mx X has concerns about this new provision, I consider she would need to raise these with the Council in the first instance and give the Council the opportunity to reply. (Local Government Act 1974, section 26(5))
53. I have not investigated decisions Mx X has appealed to the Tribunal, such as the decision to refuse assessment, the decision not to issue a plan, or the content of the Plan including placement. These are all outside our jurisdiction due to the use of an alternative remedy to the Tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
54. The Council has stated it accepts Mx X’s child required s.19 education from 2022 to date on medical grounds. This means s.19 education should have been considered irrespective of any appeal or the placement named, as it was accepted Mx X’s child was unfit to attend. We can investigate the issue of s.19 education because it can be separated from current appeal about the suitability of the placement named.
55. Mx X wants specific provision made, but this is not something we can achieve. We cannot make decisions on behalf of councils about what provision to put in place; this is the role of the Tribunal. Where we find fault in the way the Council has considered its s.19 duty, we can recommend catch-up provision or a symbolic financial remedy.

Delay in issuing EHC Plan

56. The Council’s decision after carrying out an EHC Needs Assessment was not to issue an EHC Plan. Mx X appealed this decision to the Tribunal. The appeal was conceded in Mx X’s favour, and a consent order was agreed in Autumn 2024 that the Council issue an EHC Plan.
57. The Special Educational Needs and Disabilities Regulations 2014 (44)(2)(c) require a Council to issue a draft EHC Plan within five weeks of a consent order and a final Plan within eleven weeks.
58. The Council met the deadline for the draft plan but was two weeks late in issuing the final Plan. The Council upheld this part of Mx X’s complaint and apologised. I consider an apology is an appropriate remedy for this short delay.

Naming of a school in the EHC Plan

59. The Council says a placement change request was received. The Council named a mainstream school in Section I. Mx X disagreed with this decision and appealed it.
60. We cannot tell the Council what type of school to name in an EHC Plan, only a Council or the Tribunal can make this decision. Mx X has used her right of appeal. We cannot comment on this further.

s.19 Education Act 1996 provision

61. The Council has no documentation relating to its s.19 duty. This is fault. While councils can ask schools, or groups of schools, to assess children and commission s.19 education on their behalf, they do so on behalf of the Council. The Council cannot delegate the s.19 duty. Therefore, they should retain oversight where arrangements are delegated, particularly where there is a sustained absence.
62. The statutory guidance is clear that where there is long term absence Councils are expected to remain involved, track the child, meet with the school, and ensure provision is sufficient for the age, ability and aptitude of the child and to any special educational needs they may have. Progress should be reviewed at least half-termly including towards an outcome of reintegration into school where relevant.
63. There is no evidence of any oversight, or reviews, or communication with the school about Mx X’s child by the Council’s education team between April 2024 and May 2025. This is fault.
64. I do not accept the Council’s view it did not need to intervene between April 2024 and May 2025 because the school was making provision and a GP had provided a ‘fit note’ in 2022 that Mx X’s child should attend school only two days per week. The Council still needed to be satisfied the alternative provision arranged by the school was suitable and discharged its duty under s.19. It also needed to keep the case under review to consider whether further action was necessary, especially once absence became persistent.
65. Mx X’s child did not access any education in the Summer 2024 term. The only documentation from the Council’s education team at this time was for Tribunal which referred to Mx X giving reasons of physical illness and tiredness for why sessions had been missed. There is no evidence the Council considered action to enforce attendance.
66. I note that EOTAS was reintroduced in September 2024, at the same time the Council was defending a Tribunal appeal. The evidence shows home EOTAS went well but was only for three hours per week and time-limited to four weeks.
67. There is not enough evidence to say it was fault not to continue home based tuition after four weeks. There are different accounts about why the move to a hub was unsuccessful. The provision was withdrawn in early January after what is documented as lack of engagement. Mx X considers the problem was a lack of flexibility to consider her child’s circumstances at that time.
68. An online learning package was put in place in early 2025. This is a provider the Government has accredited to deliver s.19 education. This continued until late Spring 2025 when an alternative bespoke package was provided.
69. For the period I have investigated I find Mx X’s child did not access education between April 2024 and September 2024, and November 2024 to January 2025 and accessed only three hours per week in the period in between. It is however speculative what the Council might have decided had it had greater oversight of the case. Possibly different s.19 education, such as the home tuition Mx X wanted, may have been provided, but equally the Council may have decided to enforce attendance if it was not satisfied of the reasons given for absence. There is no medical evidence available for this period to support absence, or to know whether three hours per week was appropriate due to medical needs, or to inform whether Mx X’s child could have managed more education.
70. The uncertainty of what might have been provided had the Council had oversight of the s.19 education is itself an injustice.
71. I note the Ombudsman made a recommendation in Spring 2025 the Council review its guidance for staff about alternative provision. This recommendation was accepted but would not have been implemented at the time of these events.

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Agreed Action

Within four weeks of my final decision:

72. The Council will apologise to Mx X for the faults identified in this decision statement.
73. The Council will pay Mx X £750 to acknowledge the distress and uncertainty caused.

Within twelve weeks of my final decision:

74. The Council will consider our Guide for Practitioners: Supporting children out of school issued in October 2025, as well as recent statutory guidance on attendance and children with mental health conditions, and consider whether any amendments to its staff guidance are required.
75. The Council will consider how to improve its record keeping when children are in receipt of s.19 education so it can evidence decisions are made and shared, reviews have taken place, progress is tracked and additional action taken where relevant.
76. The Council should provide us with evidence it has complied with the above actions.

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Decision

77. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman