The Ombudsman's final decision
Summary: Mrs X complained the Council failed to secure suitable educational provision when her daughter, Y, was unable to attend school. We find the Council at fault for failing to consider whether it owed a section 19 duty. This caused Y and Mrs X uncertainty. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.
The complaint
Mrs X complained the Council made unlawful decisions which blocked her daughter, Y’s, access to education for two years. Mrs X told us Y’s mental and physical health have been significantly impacted and there has been a financial burden on the family due to securing private assessments, educational provision and legal support. Mrs X also told us her own mental health has been impacted as she has spent significant time fighting for her daughter’s education. Mrs X would like the Council to apologise, refund costs, pay compensation and ensure Y’s Education, Health and Care Plan provision is delivered in full.
The Ombudsman’s role and powers
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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) 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.
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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated Mrs X complained to us in October 2025 about events dating back to June 2023. Anything prior to October 2024 is classed as a late complaint. Mrs X explained she did not complain to us sooner as she has gone through multiple Tribunal appeals which she hoped would provide a resolution to the issues complained about. I consider the ongoing appeals are a good reason Mrs X did not complain to us sooner. For this reason, I have exercised discretion to investigate back to December 2023, when Y first stopped attending school.
The Council initially refused to complete an assessment of Y’s Education, Health and Care needs in July 2023. Mrs X appealed this decision to the Tribunal. I have not investigated the Council’s actions in refusing to complete the assessment.
Following the Education, Health and Care needs assessment, the Council refused to issue an Education, Health and Care Plan. Mrs X appealed the Council’s decision to the Tribunal. 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. The content and quality of assessments are connected to this appeal, therefore I cannot investigate these issues.
The Council issued a final Education, Health and Care Plan for Y in February 2025. Mrs X appealed the placement named in this Plan. I consider the Council’s actions in securing the special educational provision detailed in section F of the Plan to be linked to whether the named setting was suitable. For this reason, I have not investigated the Council’s actions in securing special educational provision detailed in the Education, Health and Care Plan issued in February 2025.
My investigation looked at the Council’s actions in considering its section 19 duty when it became aware Y was unable to attend school between December 2023 and February 2025.
My investigation also looked at the Council’s actions in complying with the Tribunal order issued in November 2024 which ordered the Council to issue an Education, Health and Care Plan for Y.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Legal and administrative background Section 19 duty 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.
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.
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 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.
Tribunal order Section 44(2)(c) of the Special Educational Needs and Disability Regulations 2014 sets out that when the SEND Tribunal orders a Council to make and maintain an EHC Plan, the Council should issue the draft Plan within five weeks of the order being made. The final Plan should be issued within eleven weeks of the order being made.
What happened The following is a summary of key events. It is not intended to be a detailed chronology.
Section 19 duty From January 2024, Y’s attendance at school declined. School records show this was due to a mix of illness and refusal to attend.
In January 2024 the school offered Mrs X a reintegration plan to support Y’s attendance at school. Mrs X did not accept the reintegration plan offer but did support Y to attend school for short periods.
Mrs X contacted the Council’s attendance team for support in February 2024. The Council engaged with Mrs X and the school to determine the circumstances of the case. Once the Council was aware Y’s absences were marked as authorised and the school had offered a reintegration plan, it explained there was nothing further for the attendance team to support with.
Between January 2024 and May 2024, the school made attempts to reintegrate Y into school. These attempts were not successful. From February 2024 the school also offered to provided work for Y to complete at home.
In April 2024 an attendance meeting took place. Notes from this meeting show it was Mrs X’s view the relationship with the school had broken down and it was her preference for Y to attend a new school. The school continued to offer work for Y to complete at home and complete check-in meetings. The agreed action from this meeting was to explore the possibility of Y attending a different school.
In May 2024 the school completed a risk assessment and review of Y’s reintegration plan. The review records show that Y’s case was with the attendance team at this point and the reintegration plan had been unsuccessful as it had not been followed.
Y began attending a different school in June 2024 however her attendance remained sporadic.
The evidence provided shows varying professional opinions as to the reason for Y’s attendance difficulties. There is no specific medical evidence which confirms Y was unable to attend school for medical reasons.
Tribunal order At the beginning of November 2024, the SEND Tribunal ordered the Council to issue an EHC Plan for Y.
In accordance with the SEND Regulations, the Council should have issued the draft Plan by the second week of December 2024. The Council should have issued the final EHC Plan by the end of January 2025.
The Council issued the draft EHC Plan one day late, in the second week of December 2024.
Mrs X responded to the draft Plan to request a large number of amendments and clarifications. In response to Mrs X’s requests the Council issued a second draft at the end of January 2025.
Mrs X responded to the second draft Plan to request further amendments.
The Council considered Mrs X’s amendment requests and issued the final Plan in the second week of February 2025.
My findings
Although the Council’s attendance team engaged in communication with Mrs X and the school in February 2024, there is no record the Council considered whether it owed a section 19 duty between being made aware of Y’s absences in January 2024 and issuing her final EHC Plan in February 2025. The Council’s failure to consider whether it owed a duty is fault.
As there is no specific medical evidence available which states Y was unable to attend school, professional opinions were divided and school did repeatedly engage with offering a reintegration plan for Y, I cannot say, even on the balance of probabilities, whether the Council would have considered it did owe Y a section 19 duty if it had considered the matter. For this reason, I cannot conclude the council’s failure to consider its duty led to missed education. Therefore, the Council’s failure to consider its section 19 duty is fault which has caused distress, uncertainty and frustration for Y and Mrs X.
The Council issued the first draft Plan one day after the deadline set out in the SEND Regulations. This is fault but there is no evidence this caused Y or Mrs X a significant injustice.
The Council issued the final Plan three weeks after the deadline set out in the SEND regulations. This is fault however, due to the Council working with Mrs X to consider her amendments and issuing a second draft Plan, I do not consider the delay caused Y or Mrs X a significant injustice.
Action
Within one month of the final decision, the Council will: Apologise to Mrs X for the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
Make a symbolic payment of £300 in recognition of the uncertainty caused by the Council’s failure to consider its section 19 duty between January 2024 and February 2025.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman