Summary: The Council was at fault for failing to properly consider whether it had a duty to arrange alternative provision for Mrs X’s child Y between December 2024 and February 2025. It has agreed to apologise and make a payment to acknowledge the uncertainty and frustration this caused. We cannot investigate the accuracy of the Education, Health and Care Plan or the school named in the Plan as Mrs X had a right of appeal to the Tribunal and used that right.

The complaint

1. Mrs X complained:
1. the Education, Health and Care Plan the Council completed for her child Y was inaccurate, was based on a report from an educational psychologist who had never met Y, and it failed to accurately reflect Y’s needs. The Plan also named an unsuitable school. This meant the provision identified did not meet Y’s needs.
2. the Council failed to ensure Y received a suitable education when Y was no longer able to attend their mainstream primary school. This meant Y missed provision and this caused them frustration.

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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. 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)
4. 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 have and have not investigated

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if someone has appealed to a Tribunal about the same matter, even if they later withdraw all or part of the appeal. 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 and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. I cannot investigate Mrs X’s complaint at 1a) above because she appealed the special educational provision and the Council’s decision to name a mainstream school in Y’s EHC Plan to the Tribunal thereby placing the matter out of our jurisdiction. So, I cannot consider any complaint regarding the content of the Plan or the reports used to write the Plan.
9. If a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. In relation to part 1b) I can investigate what happened from October 2024, when Y stopped attending school, until February 2025 when the Council issued the final EHC Plan. I cannot look at what happened between February 2025, when Mrs X’s right of appeal started, to when the Council conceded the appeal in July 2025. This is because Y’s missed education is linked to the issues Mrs X appealed.
11. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I consider any comments before making a final decision.

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What I found

Education, Health and Care Plan

14. 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.
15. The EHC Plan is set out in sections. Section B of the EHC Plan sets out the child’s special educational needs, section F sets out the special educational provision needed by the child and section I outlines the name and/or type of educational placement. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

Alternative education provision

16. 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.
17. 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)
18. 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
19. 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.

20. Where councils arrange for schools or other bodies to carry out its functions on its behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure its duties are properly fulfilled.

What happened

21. Y has a diagnosis of autism and attended a mainstream primary school.
22. In May 2024 Mrs X asked the Council to complete an EHC needs assessment of Y. During 2024 the school and an Educational Psychologist from the Council’s emotionally based school avoidance team worked with Mrs X and Y to support Y’s attendance at school. This included setting outcomes with actions such as the use of fidget toys, meet and greet sessions at the start of the school day and the availability of a separate quiet space. It monitored and reviewed progress against the outcomes.
23. In October 2024 the Council spoke with the school which reported Y’s attendance was 59%. The school said it had put as much as it reasonably could in place. The Council said it may consider Y at its next alternative provision meeting in late October. I have seen no evidence it did this. The school’s attendance figures show Y stopped attending after the October half term. It recorded Y’s absence as unauthorised.
24. In early December 2024 the Council issued Y’s draft EHC Plan. Mrs X requested alternative provision for Y. The Council contacted the school and asked if it could support with this. It referred to the draft EHC Plan which stated Y should have at least one day a week of outdoor or creative alternative provision with therapeutic elements and asked for the school’s thoughts on this. The school contacted Mrs X with the school timetable with a view to Y attending school one afternoon a week.
25. In mid-December 2024 Mrs X complained to the Council that the draft EHC Plan was inadequate and did not meet Y’s needs. She said the educational psychologist involved in the Plan had not met Y. She said she was awaiting a discussion around alternative provision for Y under the Council’s section 19 duty.
26. Around this time Mrs X emailed the school to advise that Y would not be returning. She acknowledged the school had worked hard to build a relationship of trust with Y but said neither that or Y’s friendships were enough to convince Y to return to school. Mrs X asked that Y remain on the school roll and said she was awaiting its response regarding alternative provision.
27. The Council responded at stage one of its complaints procedure in late January 2025. It provided some explanation about the content of the Plan and said the educational psychologist had attended the school but Y was not in school that day. They had offered other times including visiting Y at the family home but these offers were declined. The educational psychologist’s report was therefore based on conversations with Mrs X, the school and any other available information.
28. In relation to the provision while Y was not at school the Council said it had informed the school that it needed to meet section 19 requirements and to put this in place. It said as Y did not yet have a Plan this remained the school’s responsibility and the school was liaising with the Education Engagement Service. It said it had issued the draft EHC Plan and had received the new Occupational Therapy report Mrs X had provided. It would be looking to consult schools.
29. Mrs X remained unhappy and the Council considered her complaint at the second stage of its complaints procedure in March 2025. It upheld her concerns about delays and poor communication. It did not uphold her complaint about the educational psychologist’s report.
30. The school developed an access plan which included Y attending school in December to do an art lesson. However, Y was unable to attend. In mid-February it contacted the Council with concerns that alternative provision would not support Y to return to school. It said Y’s attendance was now under 20% and it did not have any funding for any alternative provision. The Council responded that it planned to name the school in Y’s EHC Plan and it would work with the school to ensure Y had the right support.
31. The Council issued Y’s final EHC Plan in late February 2025, which named Y’s current mainstream primary school. The provisions in section F included a gradual structured plan to build up the time Y spent in school, access to a quiet space, regular 15-minute checks, a scheduled meet and greet with a trusted adult at the start of the day, an hour a week of one to one emotional skills intervention and physical movement breaks throughout the day. To support reintegration it stated at least one day a week of outdoor or creative alternative provision that has therapeutic elements for up to six weeks.
32. Mrs X appealed to the Tribunal about section F of the Plan and the school named in section I. She raised concerns that Y had never met the educational psychologist and the Council had excluded from the EHC Plan recommendations made in private reports. She said the provisions in the Plan had all been tried, tested and failed by Y’s current primary school.
33. In July 2025 the Council conceded the appeal and agreed to name a specialist school in Y’s EHC Plan.
34. As a result of a different case we investigated in 2025 the Council said it was reviewing its children out of school policy. The Council published the final policy in October 2025.

Findings

35. Mrs X disagreed with the school named in Y’s Plan. She had a right of appeal to the SEND Tribunal over the school named in the Plan and used that right. Whether the school named in the Plan was a suitable school which Y could attend was a decision for the Tribunal. As I have explained above, we cannot investigate a decision where it has been appealed to tribunal and cannot consider the consequences of that decision. Y’s absence from school from the point of appeal, and their lack of education, was not separable from Mrs X’s appeal. This means I cannot look at the Council’s decision to name the primary school in the Plan or whether Y should have been provided with alternative provision during the appeal period.
36. However, I can consider the period from when the Council was aware Y was out of school until it issued the final EHC Plan, when Mrs X got her appeal right. Y stopped attending school in late October 2024. Mrs X emailed the Council in early December 2024 to request alternative provision. The Council passed this to the school but failed to follow this up to satisfy itself that Y received any additional support or provision. In its complaint response to Mrs X the Council said it was the school’s duty to arrange alternative provision for Y. The Council had a responsibility to maintain oversight of Y’s attendance. It was aware Y was not attending and so should have considered at the time whether to require attendance at school or to provide Y with suitable alternative provision. It was for the Council to decide whether the school place was available and if Y could attend. However, I have seen no evidence the Council properly considered this or took any action to establish exactly what education and support Y was receiving, if any, from the school. The failure to properly consider the section 19 duty is fault.
37. I cannot know, even on balance, whether the Council would have accepted a section 19 duty and made alternative provision available for Y. I also could not establish now the extent to which Y would have engaged in any provision. However, the Council’s failure to properly consider this leaves Mrs X with a sense of uncertainty over whether Y should have received more support from the Council between December 2024 and February 2025.
38. Following separate complaints we considered in 2025, the Council has already reviewed its policy for children out of school so I have not considered it necessary to make any further service improvement recommendations. We will however continue to monitor the Council’s performance through our case work.

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Agreed Action

39. Within one month of the final decision the Council has agreed to apologise to Mrs X and pay her £300 to acknowledge the uncertainty caused by its failure to properly consider its section 19 duty between December 2024 and February 2025.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman