Summary: Mr X complained about the Council’s actions when his son (Y) was de-registered from his school. He also complained about the Council’s failure to arrange alternative provision for Y when his parents withdrew from Elective Home Education and its failure to comply with the statutory timescales for Education Health and Care Plans. We found fault with the Council. This fault caused injustice to Mr X. The Council has agreed to apologise to Y and Mr X and to make symbolic payments to recognise the impact of its failings on Mr X.

The complaint

1. Mr X says the Council failed to:
• prevent de-registering his son Y from the school roll;
• uphold its duty under the DfE Elective Home Education (EHE) Guidance;
• recognise Y stopped being Electively Home Educated and act accordingly;
• arrange alternative provision for Y after the parents told the Council they were withdrawing from Elective Home Education;
• comply with the statutory timescales for his son’s Education, Health and Care (EHC) needs assessment and when issuing his EHC Plan.
2. Mr X says the Council’s failings meant Y missed much education. They also caused a significant financial loss to him and emotional distress to the whole family.

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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. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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.
7. 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)
8. 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.

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What I have and have not investigated

9. I have not investigated whether the Council failed by not taking appropriate action to prevent de-registering Y from the school’s roll. Y’s school took him off the school roll in May 2023. As explained in paragraph four of this decision we would normally not investigate anything that happened more than 12 months before the complainant came to us. Mr X brought his complaint to us in November 2024. I cannot see any good reasons why Mr X could not complain about Y’s de-registration sooner. Besides we cannot look at the actions of Y’s school when it took Y off its roll.
10. I investigated the period between November 2023 and November 2024, when the Council provided its stage two response to Mr X’s complaint. I also looked at what happened after November 2024 to find out the extent of any injustice caused to Y and Mr X and to offer suitable remedies.

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How I considered this complaint

11. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

Elective Home Education

13. 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.
14. 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.
15. If you remove your child from a school in order to educate at home, but then change your mind, there is no guarantee that a place would still be available at the school; an application would have to be made in the usual way through the local authority’s process for in-year admissions – or if applicable, direct to the school. If no place was available at your child’s former school, the local authority would then be obliged to find a state school place or arrange for education to be provided otherwise than at school. Local authorities are also aware that some parents have attempted to use temporary ‘home education’ as a means of circumventing a school place allocation at the start of primary or secondary education. (Elective Home Education Departmental guidance for parents, April 2019, paragraph 3.7)

Alternative provision

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will 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”. (R (on the application of DS) v Wolverhampton City Council 2017)

EHC Plan

19. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• if the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• if the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• the council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

20. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1)). In this decision I refer to it as EOTAS.

What happened

Background

21. In mid-May 2023 the Council’s EHE team communicated with Mr X. It had no concerns about the suitability of education Y’s parents were proposing for him. Y was de-registered from his school.

EHC needs assessment and EHC Plan

22. In mid-May 2024 Y’s parents told the Council they were withdrawing Y from EHE. They said their decision to electively home educate was driven by the school’s inability to meet Y’s needs and their concern about the deterioration of Y’s mental health. Parents could not afford to continue funding home education. Besides Y felt socially isolated.
23. In the same correspondence Y’s parents asked the Council to carry out an EHC needs assessment for Y.
24. At the end of June 2024 the Council decided to assess Y’s EHC needs. A few days later Mr X asked the Council to get specific professional advice.
25. A month later Mr X told the Council it had been failing in its Section 19 duty since mid-June 2024. Mr X asked for an Occupational Therapist (OT) to provide their advice as part of Y’s EHC needs assessment.
26. After some further correspondence with the Council, Mr X complained in the second part of August 2024. He raised the issue of the delays with Y’s EHC needs assessment as the professional advice should have already been obtained and a draft EHC Plan issued. He was also dissatisfied with the Council’s refusal to provide any education for Y until his EHC Plan was issued.
27. Mr X contacted the Council a few times in September asking for a response to his complaint. The Council responded in the second week of October. The Council did not uphold Mr X’s complaint for the following reasons:
• after withdrawing from EHE Mr X did not apply for a school place for Y. As Y was not on a school’s roll, he was not eligible for Section 19 provision;
• delays with Y’s EHC needs assessment were caused by the shortage of OTs.
28. After Mr X’s request to escalate his complaint, at the beginning of November 2024 the Council sent him its stage two response. The Council did not uphold Mr X’s complaint about the Council’s failure to arrange alternative provision for Y as, it said, Section 19 duty did not apply to the children who were electively home educated. The Council upheld Mr X’s complaint about the delays in the EHC needs assessment process and apologised for them and for the lack of communication.
29. In mid-November the Council’s panel agreed to get OT advice for Y.
30. In mid-December 2024 the Council consulted with some mainstream schools and Area Resource Bases attached to mainstream schools. The schools responded they could not meet Y’s needs.
31. At the same time the Council issued Y’s draft EHC Plan.
32. Mr X sent his comments to the draft EHC Plan at the beginning of January 2025. He was not happy about the lack of OT advice. He also reiterated Y had not been electively home educated since May 2024 and the Council was failing to ensure Y received suitable education.
33. In mid-February the Council asked Mr X whether he would like the Council to issue Y’s final EHC Plan without OT advice or if he agreed to wait with issuing Y’s plan until OT advice was ready. The Council also asked for Mr X’s preference for a school placement for Y.
34. Mr X told the Council he wanted to wait to have OT advice included in Y’s EHC Plan.
35. At the beginning of April 2025 Mr X asked the Council to consult an independent specialist school for Y. The school responded a month later refusing to offer a place.
36. The Council issued Y’s final EHC Plan in mid-June 2025, specifying that Y would receive Education Otherwise than at School (EOTAS).

Y’s education from May 2024 to July 2025

37. Mr X said the cost of all educational provision secured for Y by his parents from May 2024 up to the beginning of April 2025 totalled £13,726. Y received the following provision:
• therapeutic provision - £4,675;
• mentoring and therapy - £1,250;
• private tutoring - £6,000;
• provision to address Y’s autism - £500;
• materials and resources - £1,000.

Analysis

Elective Home Education

38. As explained in paragraph nine of this decision I did not investigate the Council’s action at the time of taking Y off his school roll.
39. There is no evidence that from November 2023, when I started my investigation, the Council failed in its duties towards Y as an electively home educated pupil. I can see no reasons why the Council would doubt the education arranged for Y by his parents was suitable.

Alternative provision

40. In May 2024 Mr X told the Council that him and his wife were withdrawing from EHE. At this stage the Council should have taken action to ensure that Y, who was of compulsory school age, was receiving education suitable for his age, aptitude and ability. In response to Mr X’s correspondence about stopping EHE for Y, the Council should have done the following:
• advised Y’s parents about in-year school consultation process; and if no school could offer Y a place
• decided whether it needed to arrange alternative provision for Y to ensure he received suitable education.
41. The Council’s failure to follow the right process is fault. This fault caused injustice to Mr X as he continued funding Y’s education and was distressed about the Council not recognising its duty towards Y’s education.
42. If the Council had advised Mr X to apply for school places, on the balance of probabilities it seems more likely than not that no mainstream school would have said it could meet Y’s needs. This is because the Council received such a response when it consulted with schools during an EHC Plan process.
43. Consequently the Council would have needed to decide on its Section 19 duty. In view of Y’s individual circumstances the Council was likely to decide Y needed alternative provision as there was no suitable education available to him which would be “reasonably practicable” for him to access.
44. At this stage I do not consider the Council’s fault outlined in paragraph 40 caused injustice to Y. He continued to receive education, which his parents arranged for him in 2023. The injustice was caused to Mr X as he bore the full financial burden of all educational arrangements.
45. Although the Council should have made its decision on its Section 19 duty for Y after mid-May 2024 and it is more likely than not that had it done so, it would have accepted its responsibility for arranging education for Y, I cannot decide which provision, if any, arranged by Y’s parents the Council would have accepted. The educational package arranged for Y by his parents included provision for his special needs which the Council could have disputed at the time. The Council’s absolute duty to ensure delivery of special educational provision starts with the date the child’s EHC Plan is issued.
46. The Council’s stage one complaint response shows confusion about the Section 19 duty. As explained in paragraph 17 it does not depend on whether the child is on the roll of a school.

EHC Plan

47. The Council should have issued Y’s EHC Plan at the beginning of October 2024. It did so in mid-June 2025. The delay of eight months is fault. The Council said the delay was caused by the difficulties in getting OT advice for Y. This is not a sufficient reason for non-compliance with the statutory timeframes. The Council should have issued Y’s final EHC Plan explaining to Mr X that it would be amended once the OT advice became available.
48. The injustice caused by the Council’s delay in issuing Y’s EHC Plan to Y was reduced by the educational arrangements made for him by his parents. It caused injustice to Mr X as he frequently contacted the Council to ask for updates and spent much time on this communication and complaining. He was distressed at the delays. Mr X’s injustice was mitigated by him telling the Council he wanted to wait for OT advice to make sure it was included in Y’s EHC Plan. Mr X was also late in specifying which school the parents wanted the Council to consult for Y.

Remedies

49. When recommending a symbolic payment for Mr X to recognise his injustice caused by the Council’s failings I have considered:
• if the Council had decided on its Section 19 duty for Y after mid-May 2024, it would have likely accepted it and made educational provision for him at least from September 2024;
• Y’s educational package which he has been receiving since May 2023 was at first delivered as EHE, so the Council was not involved in any arrangements;
• if not for the Council’s delays, Y’s final EHC Plan would have been issued by the beginning of October 2024 and the Council would have been responsible for delivering special educational provision for him.

Service improvement

50. Within the last year we have made several service improvement recommendations for the similar failings to the ones found during this investigation. We have recommended the Council:
• review its procedures to ensure it has a proper process in place for considering its duty to provide a child whose EHE has been ended with a suitable education and share guidance about its policy and procedure in these cases with relevant officers;
• provide written guidance to relevant staff members on when and how it should consider its section 19 duty to children who are not attending school. The guidance will include the importance of identifying those children through information provided on Education, Health and Care need assessment requests and communicating this to the relevant office or education welfare officers;
• share a copy of the Ombudsman's focus report "Out of school, out of sight?" with relevant officers, alongside the findings of the Ombudsman's investigation. This is to emphasise the Council's responsibility to decide whether it owes a child a duty under section 19 of the Education Act 1996, as well as the Ombudsman's expectations of good practice in adhering to this duty;
• review the processes it has in place for seeking Occupational Therapy assessments for Education, Health and Care Plans, to identify and address any avoidable delays in these procedures.
51. In response to our service improvement recommendation in the decision issued last year the Council provided us with the plan of how it proposed to address its delays during EHC needs assessments and when issuing EHC plans. The plan involves increasing capacity of the SEND teams and introducing some improvements to the case management system.
52. We recognise it will take some time for the Council to address its failings to comply with its Section 19 duty identified in this and in our recent investigations. The Council told us of the specific actions it would take to address EHC Plan delays. We will be monitoring the effectiveness of the Council’s actions following our recommendations through our casework.

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Action

53. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mr X and Y for the injustice caused to them 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 the apology I have recommended;
• pay Mr X £7,000 to recognise the injustice caused to him by the Council’s failing within its Section 19 duty and by the Council’s delays in issuing Y’s EHC Plan;
• pay Mr X £300 to recognise his distress.

The Council will provide the evidence that this has happened.

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Decision

54. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman