Summary: Mr and Mrs X complained the Council took too long to act when they advised it they could no longer home educate their child, Y. The Council is at fault for delays in consulting with schools, delay in issuing Y’s final Education, Health and Care (EHC) Plan, failing to provide Y with the provision in his EHC Plan when Mrs X had advised it she could no longer home educate him and failing to provide a timely response to Mrs X’s complaint and her concerns. This has resulted in Y missing out on a school place in September 2024, he is still at home and the Council expect him to continue to be home educated when Mrs X told the Council in November 2023 she could no longer home educate him, the Council’s actions have impacted upon Y’s education and development and they have caused avoidable distress to Mr and Mrs X. The Council has agreed to provide a remedy payment to acknowledge the injustice caused and to review Y’s education without delay.

The complaint

1. Mr and Mrs X complain the Council failed to:
• Act when they could no longer home educate their child by arranging a school place;
• Provide support when it was made aware they were struggling to home educate their child;
• Provide their child with a suitable education when they had advised it they were no longer able to home educate him; and
• Respond to their concerns including responding to their formal complaint.
2. Mr and Mrs X feel the delays in arranging a school place for Y for a September 2024 start has had a detrimental impact on their child and the Council expect him to be home educated when it has been aware since November 2023 that they are unable to provide their child with a suitable full-time education at home.

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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 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)
4. 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)
5. 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.
6. 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)
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 used my discretion to investigate matters after the Council issued Y’s EHC Plan in June 2024 because it was reasonable for Mrs X not to appeal because the Council was looking for schools for a September 2024 start. Therefore, I have investigated matters from November 2023, when the issues arose, to October 2024, when the Council issued its final response to Mrs X’s complaint.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

11. 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. 

Elective Home Education

12. 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.
13. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
14. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
15. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
16. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
17. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is likely to satisfy the test.
18. Where parents do not provide sufficient evidence, councils can serve a school attendance order, naming a school which the child should attend. Parents can, if unhappy with the serving of such an order, refer the matter to the Secretary of State. The guidance states:
    “Whether or not the parents have sought revocation and intervention by the Secretary of State, if they do not cause the child to be registered at a school, and regularly attend it, then the authority should consider prosecution, and should proceed with this unless there is very good reason not to do so”.
19. It will be for the court to decide on the suitability of the home education.
20. In April 2019, the DfE also issued guidance to parents. They are advised that, in the early stages, their plans may not be detailed, and they may not be able to demonstrate all the characteristics of an efficient and suitable education. The guidance suggests that a reasonable timescale should be agreed for the parent to demonstrate that all aspects of the provision are in place. The guidance also states that councils may want to update the information periodically.
21. The guidance to parents says that:
    “Local authorities can make informal enquiries of parents to establish what education is being provided. As parents, you are under no obligation to respond, but if you do not, the local authority is entitled to conclude from the absence of a response, that it appears that your child is not receiving suitable education, with all the consequences which can follow”.
22. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

What happened

Y’s education

23. Mrs X has a child, Y, who has an Education, health and Care (EHC) Plan maintained by the Council.
24. In 2022, Mrs X decided to remove Y from a specialist school he was attending because she wanted to home educate him.
25. On 6 November 2023, Mrs X informed the Council she could no longer home educate Y due to the deterioration in his health and the impact it was having on her. Mrs X told the Council the education Y was receiving had been impacted upon due to her feelings of anxiety and she had stopped delivering Y’s reading programme. Mrs X requested a specialist setting for Y to attend from September 2024 and in the meantime, she would try to restart the reading program. Mrs X did not receive a response to this email.
26. On 7 and 11 December 2023, Mrs X emailed her caseworker again and requested contact from him to discuss Y’s return to school in September 2024.
27. The Caseworker responded on 14 December 2023 and apologised for the delay. A home visit was arranged for 21 December 2023 and an annual review meeting was held.
28. On 3 January 2024, the Council confirmed it had updated Y’s EHC Plan with the information from the meeting and the medical information Mrs X had provided. It said it would proceed to send out consultations to settings.
29. On 6 February 2024 Mr and Mrs X requested an update on the consultations to special schools and requested information regarding respite. No response was received from the Council.
30. On 13 and 21 March 2024, Mr and Mrs X requested a response to their previous email and reiterated the need for respite.
31. On 15 April 2024 Mrs X chased the Council for a response again and advised the situation was causing her anxiety.
32. On 4 June 2024 the Council responded to Mr and Mrs X and apologised for the lack of communication. The Council offered an online school for Y as alternative provision under Section 19 as an interim measure. Mr and Mrs X refused this because it would not meet Y’s needs as he was unable to sit in front of a computer long enough for learning to be effective.
33. On 5 June 2024 Mrs X told the Council Y had not received any education so far that year and it had taken its toll on her mental health. She said she did not have support or respite. She reiterated the need for him to be in school from September 2024, even if it was part time.
34. On 6 June 2025 the Council confirmed it would start sending out consultations.
35. On 3 July 2024 the Council confirmed it had been unable to find a school that could meet Y’s needs. It sent Mrs X information on a plumbing course for Y that also had a therapeutic approach whilst engaging students outside of a mainstream classroom. Mrs X considered the plumbing course would be too advanced for Y.
36. On 4 July 2024 the Council provided information to Mrs X regarding respite.
37. On 22 July 2024 the Council confirmed Y would not have a placement confirmed for September 2024 start as requested. They did not anticipate any responses to consultations until mid-September, due to the summer holidays. The Council said Mrs X was to continue to electively home educate Y as his EHC Plan stated. They would now need to start looking at Year 7 placements at secondary schools for a September 2025 start instead.
38. On 28 August 2024, the Council said an annual review meeting may be needed to ensure Y’s EHC Plan was as up to date as possible for consultations with secondary schools.
39. On 9 September 2024, the Council said Y would need to have an annual review by October 2024. Mrs X requested the annual review be held urgently due to the length of time it had taken already to arrange a school place for Y.
40. Mrs X was unhappy a school placement had not been arranged for Y and she brought her complaint to the Ombudsman.
41. The Council responded to Mrs X’s complaint on 17 October 2024. It acknowledged that its communication from January to July 2024 fell short of expectations and it apologised for this. It has implemented improvements to the way it communicates with those using its service.
42. The Council also upheld Mrs X’s complaint about the time it had taken to arrange a suitable education for Y. In its complaint response it said it would arrange an annual review meeting as part of the phase transfer process, and it will look into updating Y’s EHC Plan to ensure it accurately reflects his needs. The Council also said in its complaint response that the offer of online school is still open.
43. Mrs X says Y is currently not in receipt of any education.

Complaint handling

44. The Council’s complaint handling policy says it will respond within 10 working days, or 20 working days where required.
45. Mrs X complained to the Council on 5 July 2024. She did not receive a response from the Council.
46. Mrs X brought her complaint to the Ombudsman on 30 September 2024.
47. The Ombudsman asked the Council to confirm Mrs X’s complaint had completed its complaints procedure and that a final response had been issued. The Council said Mrs X’s correspondence had not been registered as a complaint. The Council then registered the correspondence as a complaint and said it would provide Mrs X with a response by 18 October 2024.
48. The Council sent its response to Mrs X’s complaint on 17 October 2024.

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Analysis

Y’s EHC Plan

49. Following the annual review meeting In December 2023, the Council delayed issuing Y’s final EHC Plan by nearly 13 weeks. This is fault.
50. This meant that Y did not have an EHC Plan that accurately reflected his needs for 13 weeks and it delayed Mrs X’s appeal rights. This injustice warrants a remedy.

Y’s Education from January – October 2024

51. The DfE guidance is clear that it is the local authority’s duty to ensure that the educational provision specified in the EHC Plan is made available to the child but only if the parents have not arranged for the child to receive a suitable education in some other way. Therefore, if the home education is suitable the local authority has no duty to arrange any special educational provision for the child.
52. In Y’s case, the Council did not check to see if the education Mrs X was providing was suitable because it did not make any contact with her from January 2024 to June 2024. This is fault. This is particularly concerning because the Council was aware Mrs X was unable to provide Y with a suitable education and this should have prompted action to check the suitability of education.
53. What should have happened is that once the Council was notified Mrs X was struggling to provide Y with a suitable education, it should have made the necessary checks to satisfy itself Y was receiving a suitable education, including the provision in his EHC Plan. This would have enabled the Council to decide on what intervention was required to ensure Y receives a suitable education and that he receives the provision in his EHC Plan, which is the Council’s duty. It also would have enabled the Council to consider its duty to provide alternative education.
54. The Council’s failure to check if the education Y was receiving was suitable after Mrs X told the Council she was unable to provide him with a suitable education is fault. I acknowledge that in June 2024 the Council offered alternative provision in the form of online provision and a plumbing course and it was of the view this was a suitable alternative. However, the evidence shows Y requires ‘a high level of adult support’ and this demonstrates an online education is not a suitable alternative unless the Council arranges an adult to physically support Y with the online education because Mrs X was unable to support him from September 2024. Therefore, from September 2024, the Council’s offer of online provision was no longer suitable for Y because there was no adult to support him. And this is fault. But because my investigation is only limited to October 2024, I am only able to find fault with the Council until this point.
55. Therefore, I have found the Council failed to provide Y with a suitable education from January to 4 June 2024 and September to 17 October 2024. This is a total loss of provision of six and a half months. This loss of education warrants an appropriate remedy.
56. I consider the Council is not at fault from 4 June 2024 to the end of the Summer term in July 2024 because Mrs X could have supported Y with the online education arranged by the Council during this short period.
57. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss.
58. Mrs X has advised me Y has not received any education since January 2024 and the issue is ongoing. This would mean Y has not received any education for 15 months. The Council’s offer of online school in its complaint response does not make any reference to it making the online school suitable for Y by providing an adult to support him and it does not make reference to any other arrangement of alternative provision or suitable education. However, I am unable to investigate this aspect of Mrs X’s complaint from October 2024 onwards until the Council has had an opportunity to investigate and respond to these concerns if Mrs X chooses to complain about them. If Mrs X does decide to complain about the lack of suitable education for Y from October 2024, and she is unhappy with the Council’s response to her complaint, she will have the opportunity to bring this new complaint to the Ombudsman.

Consultations with settings for Y

59. Mrs X had told the Council she could no longer home educate Y on 6 November 2023 but the Council did not begin consulting with settings until June 2024. I consider this significant delay in consulting settings as fault.
60. There was a period of delay from 6 November 2023 to 14 December 2023 and a second period of delay from January to June 2024. Although I cannot be certain that had the consultations began in November 2023 that Y would have had a school place for September 2024, but it is more likely that he would have had a place had consultations began 7 months earlier because the delay is so significant.
61. This has caused a significant injustice to Y because he did not have a school place for September 2024, and he is out of education because Mrs X is unable to home educate him. This has impacted upon Y’s education and development. It has also caused the family distress due to the challenges they are experiencing at home because of Y not having his needs met.
62. Mr and Mrs X spent a lot of time chasing the Council for a response. The absence of any acknowledgement or a reply caused Mr and Mrs X frustration. They were struggling to home educate Y and felt ignored and unsupported by the Council. They were anxious for Y to have a school place by September 2024 and as time went on without a response the window of opportunity to secure a place was closing. This exacerbated Mrs X’s anxiety that she was already experiencing, something the Council had been made aware of from the outset.
63. The injustice caused to the family is significant enough to warrant a remedy.

Type of setting for Y

64. Mrs X is of the view that a specialist setting is required for Y but the Council issued the final EHC Plan in June 2024 that named Elective Home Education in Section I.
65. If Mrs X disagreed with educating Y at home and wanted a specialist placement, she should have used her right to appeal to the SEND Tribunal. I understand Mrs X’s reasons for not appealing were due to the Council consulting with specialist placements but the SEND Tribunal was best placed to deal with this matter, not the Ombudsman. Therefore, I am unable to look at this specific matter.

Requests for respite

66. Mrs X requested information from the Council regarding respite on 6 February 2024. The Council provided this information to Mrs X on 4 July 2024. This is a significant delay in providing information and the injustice is also significant because of the nature of the request and Mr and Mrs X had made the Council aware of the toll on their mental health and how they were struggling. In addition to this, Mr and Mrs X chased the Council for a response to this query on several occasions. This caused further frustration and stress. This significant injustice warrants a remedy.

Complaint handling

67. Mrs X complained to the Council on 5 July 2024. In October 2024 we asked the Council to provide us with the response to Mrs X’s complaint but it said the concerns were dealt with at ‘service level’ and did not go through the complaints process. Mrs X used the Council’s complaint form to submit her complaint, and she clearly stated the correspondence was a complaint. This failure to register Mrs X’s complaint is fault. The delay in responding to her complaint is further fault.
68. It is evident Mrs X’s concerns were not appropriately investigated at ‘service level’ because once the Council investigated her complaint and provided her with a response in October 2024, it found there was fault and apologised for the injustice this caused.
69. The Council’s failure to register Mrs X’s complaint as a complaint and the delay in responding has caused frustration to Mr and Mrs X. The Council’s response on 17 October 2024 caused further frustration when the Council failed to apologise for the delay in responding to her complaint sooner.
70. The injustice caused to Mrs X warrants an appropriate remedy.

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Agreed Action

71. To remedy the injustice caused by the faults identified above, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise in writing to Mr and Mrs X for the identified faults;
• Pay Mrs X a symbolic payment of £350 in acknowledgement of the frustration and uncertainty caused by the 13 week delay in issuing Y’s final EHC Plan;
• Pay Mrs X £500 for the avoidable distress caused by delaying in consulting with settings;
• Pay Mrs X £3600 for the loss of provision over a six and a half month period;
• Pay Mrs X £500 for the avoidable distress caused by failing to respond to her complaint, failing to provide her with information she requested regarding respite in a timely manner and failing to respond to her repeated requests for updates.
• Complete a review of Y’s education, ensuring that all provision in Y’s EHC Plan is being met and for the Council to take necessary steps to satisfy itself that Y is receiving a suitable education. Where provision is not being met, the review will consider whether additional suitable provision is appropriate to make up for what has been missed and this suitable provision will be arranged without delay.
72. The Council will provide us with evidence it has complied with the above actions.

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Decision

73. 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