Summary: Mrs X complains the Council failed to deal with education for her son Y properly. The Council is at fault because it did not properly consider whether it should provide alternative education for Y. Y missed educational provision. The Council should apologise, make a symbolic payment to Mrs X and provide an action plan showing how it will ensure that alternative education is properly considered.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to deal with education for her son Y properly because it didn’t provide s19 alternative education provision between December 24 and May 25 and wrongly named a school in her son’s Education Health and Care (EHC) Plan.
2. Mrs X says her Y missed education provision and her family suffered avoidable distress.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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(i), as amended)
6. 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.
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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What I have and have not investigated

8. I have investigated that part of Mrs X’s complaint about how the Council has dealt with alternative education provision
9. I have not investigated that part of Mrs X’s complaint about naming a school in Y’s EHC Plan because this is out of the Ombudsman’s jurisdiction as Mrs X has appealed to SEND Tribunal.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X 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

Law, guidance and policies

Alternative education

12. 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.
13. 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)
14. 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)
15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. 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))
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. 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))
20. 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)
21. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
22. There is a right of appeal to the Tribunal against a council’s 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.

SEND Tribunal

23. 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)

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.

The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

24. 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). 

What happened?

25. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
26. Y had an EHC Plan issued in April 2022 which named School A as his educational placement. Y attended School A until December 2024.
27. In December 2024, Y stopped attending School A. An emergency annual review of Y’s EHC Plan was scheduled. The Council agreed to consult with alternative school placements for Y. Mrs X remained of the view that the current school was no longer appropriate. Mrs X expressed a preference for School B.
28. The Council considered an alternative school placement in the mainstream sector for Y and said it would offer him a place at School C.
29. In late April 2025, Mrs X complained to the Council. The Council did not uphold Mrs X’s complaint that it should have provided alternative education for Y. The Council accepted that it did not fulfil its duty to formally respond to Y’s EHC Plan annual review. The Council said that the school named in his EHC Plan, school A, remained responsible for his education, and the school was aware of their duties, providing work for him.
30. In May 2025 the Council issued Y’s final amended EHC Plan. Mrs X has since appealed section I of this EHC Plan to SEND Tribunal.
31. The Council issued its final complaint response in June 2025. The Council did not uphold Mrs X’s complaint that it should have provided alternative education for Y and accepted that it did not fulfil its duty to formally respond to Y’s EHC Plan annual review.

Analysis

32. The Council was aware that Y was not attending School A from December 2024.
33. Mrs X expressed concern to the Council that work was not being sent home for Y from School A. I have seen emails showing the Council quickly investigated this with School A and was informed that Y was being sent weekly links to learning for every subject.
34. The Council says:
• the first request made by Mrs X for alternative education provision for Y, was made on the 25th April 2025;
• there was no requirement to provide section 19 provision, due to School A providing education, no alternative provision was offered and this was made clear in its stage 1 complaint response in May 2025;
• it, “considered that an appropriate school offer and education offer was made as the school that remained named in his EHC Plan was able to meet needs. This remained the position of the LA and School A despite parental decision to remove him. This is evidenced by School A’s ongoing continued attempts to engage and provide alternative ways to encourage Y back to the school- as detailed above. The family chose to not send Y back to School A. The school continued to offer education to Y.”
• the fault accepted in respect of Y’s EHC Plan annual review process did not impact on its consideration of alternative education provision for Y.
35. The Council was aware that Y was not attending School A from December 2024.
36. The Council accepts that it failed to respond to Y’s EHC Plan annual review. In doing so it failed to advise Mrs X that it considered School A to be an appropriate placement and that Y should continue to attend there.
37. The Council had expressed a clear intent to make a different school placement available for Y when it communicated with Y’s school in December 2024 saying it would notify the school when it had made a decision about Y’s school placement and School A could then remove Y from its roll.
38. Mrs X had clearly expressed a preference for School B in December 2024. I have seen an email from the Council to Mrs X which confirms it understood this when it said, “I will consult with your preference of [School B] plus 3 other local schools..”
39. Mrs X told the Council in mid April 2025 that Y’s case officer had assured her Y would be going to School B. The Council disagrees and says this is not correct.
40. The Council consulted with several schools about an educational placement for Y. School B indicated it could meet Y’s needs.
41. Evidence shows Mrs X was told that work should be sent home for Y in the interim period while consultations were made. She was asked if she would consider tuition in the interim period before a placement at School B could potentially start in September. I consider that an offer of tuition would not have been put forward if the Council considered it suitable for Y to attend School A.
42. The Council’s Special Educational Needs (SEN) Panel considered Y’s circumstances on two occasions in April 2025 and decided to name School C in his EHC Plan. The panel determined that Y should be attending School A whilst the Council consulted with other schools. The matter of Y’s educational placement has subsequently been dealt with by SEND Tribunal.
43. Correspondence provided by the Council shows that, on the balance of probabilities, Y’s case officer expected the SEN Panel to make a placement at School B because when the initial decision was made to name School C, the case officer took the decision back to the Panel for it to reconsider its decision.
44. The first evidence I have found of the Council informing Mrs X that it considered School A to still meet Y’s needs is in an email from Y’s case officer to Mrs X on 23 April 2025. This is consistent with the panel decision outlined in paragraph 42 above. Mrs X was advised to allow Y back to school until an alternative placement had been secured. This was restated in its stage 1 complaint response in early May 2025.
45. On the balance of probabilities, the Council did not inform Mrs X that it considered Y should continue to attend School A until late April 2025, after the SEN panel decision.
46. In its response to my enquiries the Council said, “the request for Alternative Education was considered via the complaint’s procedure only”, and also that, “The request for alternative provision was considered on numerous occasions and via different pathways (including the complaints process)”
47. There is no other evidence showing that the Council considered whether it should make alternative education provision for Y before 23 April 2025.
48. There is no evidence the Council considered taking any enforcement action regarding Y’s non-attendance at School A.
49. I have seen emails from Mrs X which show that the material being sent to Y from school was:
• continuation learning;
• not specifically set appropriate to Y’s needs; and
• not consistently available to him throughout the period January to April as it stopped at February half term.
50. There is evidence to show the Council chased School A to provide work at home to Y when Mrs X made it aware it hadn’t been sent. There is no evidence to show that the Council considered whether any educational provision being made by the school was adequate for Y.

Conclusion

51. The Council accepts fault because it did not respond to Y’s EHC Plan annual review.
52. Y did not attend school while the consultation process progressed, during which time he did not receive a full time suitable education.
53. The evidence shows the Council did not tell Mrs X that Y should be attending School A until late April 2025.
54. If the Council had properly responded to the emergency annual review, telling Mrs X that it considered Y’s place at School A to be suitable, this would have discharged its responsibilities and been a merits decision it was entitled to make.
55. As it did not tell Mrs X that it considered School A to be a suitable placement and Y should attend, until late April, and it was aware he was not receiving a full time suitable education, the Council should have considered provision of s19 alternative education. There is no evidence the Council considered whether it was under a duty to make provision of s19 alternative education.
56. Work set by a school to be done at home (other than in the first five days of an exclusion) is not the same as teaching and does not count. The Council did not check the suitability of any educational provision.
57. The Council did not properly consider whether it should provide alternative education provision for Y, for a period of approximately four months and equivalent to one term, between January and late April 2025. This is fault by the Council. Y suffered a loss of education provision.

The Ombudsman’s Guidance on Remedies

58. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
59. I have considered Y’s individual circumstances as above when considered a remedy, including the online learning provision that was provided by School A for part of this period.

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Action

60. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for the fault found. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £2,000 in respect of Y’s missed education provision.
• Provide an action plan showing how it will ensure that proper consideration is given to the provision of alternate education provision and record keeping of those decisions when the Council is aware that a child is not attending school.
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman