Summary: Miss Y complains the Council failed to ensure education was available for her child after they stopped attending school in October 2024. For the parts of the complaint within our jurisdiction, we find no fault by the Council. This is because the school ensured full-time alternative education was made available on an interim basis while the Council took steps to secure a placement at another school.

The complaint

1. Miss Y complains the Council failed in its statutory duty to make provision available for her child, D, from October 2024 when they became unable to continue attending school. The Council amended D’s Education, Health and Care (EHC) plan, and named a different school from January 2025, however Miss Y says it became clear very quickly that the new school was not suitable for D and they stopped attending.
2. During their period of non-attendance, Miss Y says the Council failed to make suitable alternative provision available for D and did not ensure they received the specialist provision outlined in their EHC plan.

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The Ombudsman’s role and powers

3. 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)
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. 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

6. I have not investigated what happened after January 2025. The Council issued an amended final EHC plan naming a specialist school for D. Miss Y lodged an appeal in September 2024 against the contents of D’s EHC plan which she varied in January 2025 to include an appeal against Section I. I consider that Miss Y’s complaint to the LGSCO is too closely connected to the matters which she appealed, and the end date of my investigation is therefore January 2025.

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How I considered this complaint

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

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What I found

Section 19 of the Education Act

9. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
10. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
11. When considering whether to provide alternative provision, councils must have regard to statutory guidance, ‘Arranging education for children who cannot attend school because of health needs’. This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged to deliver suitable education outside of school.
12. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

Education Health and Care Plans and appeals

13. 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. 
14. There is a right of appeal to the Tribunal against the following.

• Decision not to carry out an EHC needs assessment or reassessment.
• Decision not to issue an EHC plan following an assessment.
• Description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan.
• Amendment to these elements of an EHC plan.
• Decision not to amend an EHC plan following a review or reassessment.
• Decision to cease to maintain an EHC plan.

15. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

What happened

16. The Council issued an EHC plan in July 2024 naming a mainstream secondary school which D attended until October 2024.
17. On 9 October 2024 the Council was copied into an email between Miss Y and D’s school. Miss Y expressed concerns that the school could not meet D’s needs and that continued attendance would damage D’s mental health.
18. The following day, the school agreed to provide a laptop for D to access a full-time package of online learning with a “bespoke curriculum” aligned with the National Curriculum. The school emphasised this was an interim measure until decisions about D’s long-term schooling had been made. The school also said it would conduct safe and well checks for D whilst they were out of school.
19. The school also noted: “Dependent on the outcome of the mediation, we can then work with the LA [Local Authority] SEND team to look at a more permanent appropriate provision for [D]”.
20. Mediation took place on 17 October 2024. This concluded with an action plan with several actions for D’s school to complete. The Council agreed with those actions and said it continued to believe that a mainstream school was suitable for D.
21. On 30 October 2024 the Council emailed D’s school to confirm details of the interim provision. The school responded on 6 November 2024 to confirm it had offered the online provision for D and they were exploring other alternative provision options. Around this time, Miss Y emailed to confirm that D had access to the online learning but needed support to engage.
22. Following this, the Council consulted with an Educational Psychologist (EP) to discuss D’s long-term provision. The EP recommended a change of provision from mainstream to specialist schooling. On 15 November 2024 the Council sent consultations to three specialist schools. All three responded to say they could not offer a place to D.
23. The Council received agreement on 9 December 2024 to consult with specialist independent schools for D. Shortly after, an independent school agreed to make an appointment for D and their family to view the school.
24. The school visit took place on 8 January 2025, and the school offered a place to D on 14 January 2025.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

25. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. This means that 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.
26. 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.
27. In D’s case, the Council amended the EHC plan in January 2025 to name a specialist independent school. The records show that Miss Y expressed very quickly that the school was unsuitable for D. Miss Y had previously lodged an appeal in September 2024 which remained open. She therefore asked to vary the existing appeal to include her disagreement about Section I.
28. For the reasons explained in paragraphs three and six of this statement, and as further explained above, we have not investigated what happened after January 2025 because the disagreement about the type of provision D needed was connected to Miss Y’s grounds of appeal. I do not consider the complaint about the provision available for D from January 2025 is separable from the appeal.
29. This investigation has instead focussed on what happened between October 2024, when the Council received notice that D had stopped attending school, and January 2025 when the Council allocated a specialist school.
30. When D stopped attending their allocated school in October 2024, the Council acted promptly to check whether alternative education was in place. These checks confirmed that D’s school had arranged full-time online learning through a Department for Education accredited provider, with a structured timetable aligned to the national curriculum. This meant D was not without education and the Council was not required to make any other provision available under Section 19 of the Education Act 1996. We find not fault.
31. Around the same time, the Council began consulting other schools without delay. Although some schools provided a negative response, the Council continued to pursue options and secured a specialist independent placement by January 2025. This represented a period of approximately 11 school weeks; a timescale that did not indicate avoidable delay given D’s needs and the specialist provision required. While the online education was not intended as a long-term solution, it was a suitable and proportionate interim arrangement while consultations took place. In my view, there is no evidence of avoidable delay or failure by the Council to meet its statutory duties between October 2024 and January 2025.

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Decision

32. I complete my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman