Summary: The Council was at fault in that it did not arrange alternative educational provision for child Y between January and May 2025. This caused Y injustice in that they missed out on education. The Council agreed to apologise and increase the payment it has offered to Y’s mother, Mrs X, in recognition of the injustice caused.

The complaint

1. Mrs X complained that the Council had not provided her child, Y, with a consistent education since January 2024, and had delayed in issuing an Education, Health and Care (EHC) Plan for them until September 2024.
2. Mrs X complained further that, when Y could not settle at the school named in the EHC Plan, and stopped attending in January 2025, the Council did not provide them with alternative educational provision.
3. Mrs X said this caused Y a loss of educational provision and caused the family distress.

Back to top

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. 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 s34H(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

Matters before September 2024

8. 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)
9. Mrs X complained to the Ombudsman in October 2025. I have not investigated the aspects of Mrs X’s complaint that relate to matters which occurred before the Council issued an EHC Plan for Y in September 2024 as they are late and Mrs X could have complained to us sooner.

Matters between September 2024 and early May 2025

10. 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.
11. A child or young person with special educational needs (SEN) may have an 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 (section B), education (section F), or the name of the educational placement (section I). Only the Tribunal or the council can do this. 
12. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
13. The Council issued a first EHC Plan for Y in September 2024. Mrs X had a right to appeal this Plan. When I discussed her complaint with her, Mrs X told me that she did not do so as she was willing for Y to attend the mainstream school named in the Plan, with the special education provision included in the Plan in place. I find it was reasonable that Mrs X did not appeal the contents of the Plan. And so, I have investigated events between September 2024, when the Council issued Y’s first final EHC Plan, and May 2025, when it issued a final (amended) Plan.

Matters after early May 2025

14. 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)
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)
16. 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.
17. 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.
18. Mrs X appealed the content of the final (amended) EHC Plan that the Council issued for Y in early May 2025. Because that appeal was about her disagreement with the special educational provision and the educational placement named in that Plan, we cannot investigate matters that occurred after that appeal right arose in May 2025.
19. Mrs X’s complaint about the lack of alternative provision from May 2025 onwards is not separable from the content of the appeal itself as it specifically relates to the suitability of the provision and placement available to Y. We have no discretion in this matter.
20. 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). 

Back to top

How I considered this complaint

21. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I discussed Mrs X’s complaint with her on the telephone.
22. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Law, policy and guidance

Section 19 duty

23. Section 19 of the Education Act 1996 says that the council 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.

Establishing a section 19 duty

24. 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.
25. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
26. 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.

Arranging person centred provision

27. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
28. If a child has an EHC Plan the council also has an ongoing section 42 duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.

Guide for practitioners

29. 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).

What happened

30. This section sets out the key events in this case and is not intended to be a detailed chronology.
31. The Council issued a final EHC Plan for Y in early September 2024, naming a mainstream junior school as the setting, with in-classroom support set out in section F of the Plan.
32. During the autumn term, Y tried to attend school each day (and so was marked as present on the attendance register), but usually this was for no more than half an hour per day.
33. Y did not return to school in January 2025.
34. The Council carried out an emergency review of Y’s EHC Plan and issued a final (amended) Plan in early May 2025. This named the same mainstream school at which Y was already on roll, but not attending.
35. In June 2025, Mrs X submitted an appeal against sections B, F and I of this Plan to the Tribunal. She asked the Tribunal to name a special school.
36. Mrs X complained to the Council in early August about the fact that Y had not received any meaningful education during the preceding school year.
37. The Council responded at stage one of its complaints procedure in late August. It said that it could not determine whether it was at fault in relation to the provision it had secured for Y in the setting named in their EHC Plan, because the school was closed for the summer.
38. Mrs X escalated her complaint to stage two in early September. The Council responded in late October. It said that Y’s school had not made “a formal Section 19 referral” to the Council in relation to Y’s absence from school. However, it acknowledged that the Council was aware of Y’s absence through Mrs X’s regular communication with the SEND team member allocated to Y’s case. The response concluded that “contact should have been made with [Y’s] school setting to discuss the reason for absence and whether consideration needed to be given for a Section 19 referral to the local authority”. The Council upheld Mrs X’s complaint and offered her a payment of £1200 for missed educational provision from January to October 2025. It also said it would remind its officers of “their duties in relation to pupils not able to attend school and […] to liaise with settings in relation to consideration of Section 19 referrals”.
39. Also in late October, Mrs X approached the Ombudsman. The Council arranged alternative provision for Y from November 2025.

My findings

40. I have investigated events between September 2024 and early May 2025.
41. The Council was not aware of Y’s difficulties in attending school between September and December 2024, as Y attempted to attend school each day, and was marked as present (at least in the morning session). And so, the Council was not at fault in not considering whether it owed Y a section 19 duty during the autumn term.
42. The Council acknowledged that it was at fault in not considering whether it owed Y a section 19 duty from January onwards. When it did consider this duty in October 2025, it decided to arrange alternative educational provision for Y. On balance, I find that, had the Council considered its duty towards Y in January 2025, it would have arranged alternative educational provision for them from then onwards. That it did not do so caused Y the injustice of missed educational provision. The Council did not apologise for this injustice but offered Mrs X a symbolic payment, equivalent to two and a half terms missed provision at £480 a term, in recognition of it. However, that payment was not in line with the Ombudsman’s guidance on remedies and so I shall make a recommendation for a remedy of £1650 per term for the period January to early May 2025. This is around 1.25 terms.
43. The Council took action to remind its officers of their duties regarding section 19 and so I do not need to make a recommendation for the Council to improve its service.
44. The Council also had an ongoing section 42 duty to arrange the support guaranteed by Y’s Plan. However, I find it was not fault that it didn’t secure that, because the support in Y’s Plan was all designed for delivery in their normal classroom setting.

Back to top

Action

45. Within one month of my final decision, the Council will:
1. Apologise to Mrs X for the justice caused by its fault; and
2. If it has not done so already, pay Mrs X the £1200 offered in its complaint response. Make an additional payment of £1450, for Y’s benefit, in recognition of missed educational provision between January and early May 2025. (In total, this will equal £1650 per term for the period I have investigated).
46. 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 above.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman