Summary: Ms X complained the Council failed to provide education when her daughter, Y, was out of school. She said the Council upheld her complaint but did not offer a remedy for missed provision. Ms X said this distressed her, impacted her financially and Y missed education. There was fault in the way the Council did not provide Y with education for half an academic term. This frustrated Ms X and Y missed education. The Council agreed to apologise and make a financial payment.

The complaint

1. Ms X complained the Council failed to provide education when her daughter, Y, was out of school. She said the Council upheld her complaint but did not offer a remedy for missed provision. Ms X said this distressed her, impacted her financially and Y missed education.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. 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)

Back to top

What I have and have not investigated

6. I have investigated Ms X’s complaint since July 2024, 12 months before she approached the Ombudsman. I reference events prior to this for context in this matter.
7. I have not investigated earlier events as Ms X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

Back to top

How I considered this complaint

8. I read Ms X’s complaint and spoke to her about it on the phone.
9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

11. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
12. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
13. 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.
14. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
15. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

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.
17. 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. 
18. 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; and
• amendment to these elements of an EHC Plan.

19. 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)
20. 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.
21. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
23. 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

24. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
25. Y has additional needs. She stopped attending school in October 2023. The school she attended asked the Council to complete an EHC needs assessment in early 2024.
26. Ms X noted the school engaged equine learning provision in March 2024 for approximately two hours per week.
27. Ms X contacted the Council in May 2024, asking for the Council to provide section 19 education and help with Y’s education as she struggled to access school. The Council said the school should support Y back to school. Ms X repeated Y struggled to access school.
28. The Council issued the draft EHC Plan in July 2024.
29. The Council issued the final EHC Plan in October 2024. Ms X did not agree with the content of the plan and the placement, and appealed to the Tribunal in November 2024.
30. The Council agreed to increase funding for the school to support Y back into school in February 2025.
31. Ms X complained in March 2025. She complained Y had been out of full-time education for an extended time period, but the Council had not accepted a section 19 duty.
32. The Council issued its complaint response at the end of March 2025. The response upheld the complaint and said the school delayed setting up alternative provision and apologised on the school’s behalf.
33. Ms X asked the Council to escalate her complaint to stage two in April 2025. She said the Council upheld her complaint but did not offer any remedy.
34. The Council issued its stage two response in May 2025. The Council said it provided funding to the school. It accepted it was responsible for ensuring Y received education, so upheld the complaint. The response confirmed Ms X appealed naming the school in the EHC Plan to the Tribunal.
35. Ms X asked the Council to escalate her complaint the following day. She said the Council upheld the complaint again but has not offered a remedy.
36. The Council issued a stage three response at the end of May 2025. The Council apologised for the delays which meant Y missed education and EHC plan provision. The Council offered Ms X £500 to acknowledge the delays securing alternative provision.
37. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to provide a suitable remedy for missed education.
38. In response to my enquiries the Council stated it provided funding for the school to ensure Y received suitable alternative education.

My findings

39. Councils 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”.
40. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
41. When Ms X told the Council Y was not attending school, it should have completed an assessment of the situation and decided if it had a duty to make alternative educational provision. The Council has not evidenced any decision making where it assessed the education the school provided was suitable and accessible for Y. It has not evidenced any review of any decision or communicated a decision to Ms X. The Council has not evidenced any education provided. I cannot say the Council provided Y with suitable education, required under the act referenced in paragraph 11. This is fault. This frustrated Ms X and Y missed education from the time I can consider from, September 2024.
42. However, the Council issued the EHC Plan in October 2024. This gave Ms X an appeal right to the Tribunal. Paragraph 18 sets out the Ombudsman cannot consider any matter which has been, or could be, appealed to the Tribunal. In relevant caselaw, R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207, the courts determined the Ombudsman does not have jurisdiction to consider any matters connected to the appealable decision, if it was reasonable for the individual to appeal to the Tribunal. The case law confirms once a Council issues an EHC Plan, the question of section 19 provision was the same as the question of whether the provision named in the EHC Plan was suitable. Ms X disagreed with the school named in the October 2024 EHC Plan and appealed against the Council naming the school. As Ms X appealed the naming of the school, and this is linked to the missed education as Ms X says Y could not attend the school, I cannot make a finding on any missed provision since it issued the EHC Plan in October 2024.
43. The Council accepted a delay in the school providing alternative education to Y. The Council offered a remedy for the distress the delay arranging alternative provision caused Ms X. I cannot consider this, as it is about the delays after the appeal right.
44. The Council has not evidenced any decision making, assessment for alternative provision, communicating a decision following an assessment or any education. This is fault. Y missed education from September 2024 to the end of October 2024, half an academic term.

Back to top

Agreed action

45. To remedy the outstanding injustice caused to Ms X and Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Ms X and Y for the distress the Council fault caused. 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 Ms X £600 for not providing Y with education for half an academic term. This money should be used for Y’s benefit.
46. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

47. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms X and Y.

Back to top

Investigator's decision on behalf of the Ombudsman