Summary: The Council is at fault for giving confusing information about education otherwise than at school (EOTAS) and raising Ms X’s expectations that it would provide this to her son. The Council accepted and apologised for poor communication and delay in the Education, Health and Care (EHC) Plan process. The Council should make a payment for the distress it caused.

The complaint

1. Ms X complained the Council failed to meet its statutory duties to hold an annual review and provide suitable primary school education for her son, S. She said she felt compelled to educate him at home. The Council later named a mainstream secondary school which Ms X appealed to the Tribunal. She also complained about poor communication which caused additional distress. Ms X would like an explanation and financial compensation.

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The Ombudsman’s role and powers

2. 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.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. Ms X first brought her complaint to the Ombudsman in July 2024. At this time Ms X had not yet complained to the Council about the matter. We referred Ms X back to the Council and invited her to bring her complaint back to us if she was not satisfied with its response. Ms X did so in May 2025.
7. We normally investigate complaints where the matter has been brought to our attention within a year of the person becoming aware of the events complained of. As Ms X first complained to us in July 2024, I have investigated back to July 2023. Information provided before this date is for background and context only.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms 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

Relevant legislation

The Education, Health and Care (EHC) Plan and reviews

10. 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. 
11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
13. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
14. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Appeal rights to the Tribunal

15. 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.
16. 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)
17. 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.
18. 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.
19. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  

Elective Home Education (EHE)

20. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

21. I have summarised below the key events; this is not intended to be a detailed account.
22. S has an EHC Plan and attended a mainstream primary school with support. The Council held an annual review meeting in December 2022 and issued the final version of the updated EHC Plan in May 2023 which named the same school.
23. Ms X was not satisfied with the support and education provided by the mainstream primary school and started to enquire about elective home education (EHE) for her son in May 2023. She wanted to provide EHE for the final primary school year and for S to return to secondary school the following year.
24. At the beginning of October 2023, Ms X submitted her application for EHE for S.
25. The Panel considered Ms X’s application for EHE in the middle of October 2023. It did not allow EHE and emailed Ms X with its decision. The same day, Ms X responded to the email, expressed disappointment and asked the Panel to reconsider.
26. On Ms X’s request, the Panel reconsidered the case in late October 2023. The Panel agreed Ms X could EHE her son.
27. Ms X removed S from school the following week and started EHE. This was S’s final year in primary education.
28. In February 2024, the Council wrote to Ms X and enclosed a copy of a new final EHC Plan for S which named a mainstream secondary school from September 2024. The Council told Ms X of her appeal rights if she disagreed with the content of the EHC Plan.
29. In April 2024, Ms X appealed the EHC Plan. She was not happy the Council named a mainstream secondary school and wanted a special school for S.
30. Around the same time, (April 2024), Ms X tried to contact the Council to discuss her son’s transition to secondary school. The Council failed to respond.
31. In late May 2024, Ms X spoke to a senior officer at the Council and requested EOTAS for S. The senior officer followed the call with an email. The email said the Council had ‘…let you and [S] down. Let’s put that right. So, we move from EHE to EOTAS’. It also said it would allocate Ms X a new case work officer and commission home tutoring. The email referred to Ms X’s tribunal appeal hearing, due to take place in September.
32. Ms X complained to the Ombudsman in July 2024. She said the Council SEND team were not responding to her communication. She said she had electively home educated her son since November 2023 as the school could not provide the support he needed. She wanted the Council to arrange EOTAS for S instead. As Ms X had not raised her complaint with the Council, the Ombudsman asked her to do so before we could investigate.
33. The tribunal hearing was in September 2024. The tribunal named the special school which Ms X wanted and ordered the Council to update the EHC Plan.
34. S started at the special school later in September 2024. Ms X said S has settled and is doing well.
35. The Council issued the amended final plan in October 2024 and the panel confirmed the tribunal’s decision later the same month.
36. In February 2025, Ms X complained to the Council. She said the Council’s annual review in 2022 was ineffective and non-existent in 2023, that the Council should have not allowed her to EHE and had named an inappropriate mainstream secondary school in the EHC Plan dated February 2024. Ms X complained about the Council’s communication and failure to provide school transport.
37. The Council issued a stage one response in late February and a stage two response in March 2025. It partially upheld Ms X’s complaint. It accepted and apologised for the delay in the annual review and issuing the EHC Plan which it said it could have managed better. It accepted its communication and record keeping could have also been better and apologised for the distress caused. The Council said Ms X appealed the secondary school named in the EHC Plan to the tribunal, it updated this following the tribunal order which named the special school Ms X wanted.
38. The Council explained it had approved an enhanced bursary for school transport at the transport appeal and directed any queries about this to the transport team.
39. Ms X complained to us in May 2025 and referred to her original complaint to the Council. She said she was not satisfied with the Council’s response.
40. In July 2025, Ms X asked the Council Transport Team about payments for home to school transport expenses and submitted a parent’s claim form.
41. In response to my enquiries, the Council said it did not offer EOTAS as there was no indication S could not be educated at any school, the case therefore did not meet the criteria of section 61 of the Children and Families Act. It explained Ms X was clear she wished to home educate S for the final year of primary school and for him to return school at the start of his secondary education, which he did.

Analysis

42. Ms X applied for EHE. The Council initially declined her request but reconsidered its decision when Ms X appealed. The Council agreed Ms X could EHE her son at the appeal. Ms X later complained the Council should not have allowed her to EHE her son and should have provided EOTAS instead. There is no statutory duty for the Council to consider EOTAS when a parent requests to educate their child at home. A Council only considers EOTAS for children who are otherwise unable to attend school. The commonly used definition is that a child is ‘otherwise’ unable to attend school in any situation where it is not reasonably possible for a child to take advantage of any existing suitable schooling. This is a decision for the Council to make, taking account of all relevant evidence. In May 2023 the Council issued an EHC Plan for S which named a mainstream primary school, which it considered suitable to meet S’s needs, and gave Ms X an appeal right to the tribunal if she disagreed with the content of the Plan. At this time Ms X began to consider EHE for S as she felt the school was not suitable. If Ms X wanted EOTAS for S she could have appealed to the SEND Tribunal. There was no fault in the Council’s actions.
43. The Council officer in May 2024 told Ms X the Council would move S from EHE to EOTAS and commission home tutoring. It made this decision without conducting a review meeting. The Council then did not do this. In response to my enquiries, the Council said S did not meet the criteria for EOTAS, this is despite having promised it to the family previously. The Council is at fault for causing confusion and raising Ms X’s expectations as she understood the Council was to provide her son with EOTAS from late May 2024 to the end of the academic year. This was her injustice. I cannot say that this caused S an injustice as there is uncertainty about whether S did or did not meet the criteria for EOTAS in May 2024.
44. Ms X complained about the delay in the annual review process and amending the EHC Plans. The Council accepted this was fault and apologised to Ms X in its complaint response. It explained it is addressing this to ensure it does not happen again. It should also make a remedy payment for distress caused.
45. As set out above in paragraphs 15 to 19, we cannot investigate any decision which someone has appealed to the Tribunal. Ms X said the Council named an unsuitable mainstream secondary school on the EHC Plan which it issued in February 2024. The correct way of challenging this decision is through the Tribunal, which Ms X did. The Tribunal agreed in September 2024 to name a special school, selected by Ms X. I cannot investigate the Council’s decision to name the mainstream secondary school. This is because Ms X used her right of appeal to the Tribunal, which is the correct way to challenge the Council’s decision. In any case, Ms X got the result she wanted as the Tribunal named the special school she preferred. There is nothing more I could achieve by investigating this now.
46. Ms X also complained about the funding for home to school transport. In its complaint response the Council explained it provided an enhanced travel bursary and directed any queries about this to the Transport Team. In conversation with me, Ms X said she has an ongoing dispute about how the Council pays the enhanced travel bursary and showed me correspondence and her bursary claim form dated July 2025. This is a new element to her complaint which happened since her original complaint to us. Ms X should raise this new part of her complaint with the Council.

Summary of fault causing injustice

47. The Council already accepted it was at fault for delay in the annual review process in its complaint response.
48. The Council was also at fault causing confusion and raising Ms X’s expectations that it would provide EOTAS for S and then failed to provide it.

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Action

49. Within four weeks of the Final Decision, the Council should:
• Pay Ms X £500 for the distress caused by the delay in the annual review process, delay issuing the EHC Plans and the distress caused by raising the family’s expectations about the availability of EOTAS for S.
50. The Council should provide us with evidence it has complied with the above.

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Decision

51. I find fault causing injustice in part of the complaint. The Council has agreed to remedy the injustice.
52. I am not investigating the part of the complaint which has been considered by the tribunal.

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Investigator's decision on behalf of the Ombudsman