Summary: The Council was at fault in failing to provide child Y, who had an Education, Health and Care Plan, with alternative educational provision. This caused Y the injustice of five months of missed education, for which the Council agreed to make a payment by way of remedy. The Council was not at fault in not providing educational provision during the three-month period in which Y was Electively Home Educated.

The complaint

1. Miss X complained that when she removed her child, Y, from school for their safety, the Council failed to provide Y with alternative educational provision. She said the Council insisted she home educate Y, which she did not want to do in the long term.
2. Miss X said the Council’s faults impacted her child’s wellbeing and development and required her to abandon her own education. She wants the Council to apologise, communicate better with her in future, compensate her and Y for distress and lack of educational provision, and provide her child with a suitable educational placement.

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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 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 unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)
6. 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.
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. The Council began providing home tuition for Y in late June 2025, and named a new school in early October 2025. Miss X has expressed concerns to us about both matters but, as they occurred after she complained to us in mid-June 2025, we will not investigate them. That is because, as set out at paragraph 4, the law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. It is open to Miss X to make a new complaint to the Council about these matters and, if she remains dissatisfied following its response, to us.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance. Both parties responded to questions I put to them in writing.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law, policy and guidance

EHC Plan 

11. A child or young person with special educational needs (SEN) 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.

 Reviewing EHC Plans

12. 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) 
13. 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.
14. 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.
15. 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.

Elective Home Education (EHE)

16. 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.
17. 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.

Identification of children not receiving an education

18. Section 436A of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  

Section 19 duty

19. Section 19 of the Education Act 1996 says that councils 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.
20. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing 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.

What happened

21. This section sets out the key events in this case and is not intended to be a detailed chronology.

2024

22. In early September 2024, Y’s school contacted the Council’s SEN Team to advise that Miss X was refusing to return Y to school. This followed an incident at the end of the previous term where a staff member had restrained Y.
23. At that time, the named setting within Y’s EHC Plan was a mainstream school. The school had a specialist provision on site known as the SEN Base. The school chose to educate Y within that setting, but Y did not have a formal placement there.
24. The school organised an emergency annual review of Y’s EHC Plan on 4 September. Miss X, an interpreter and staff from the school attended. Following this meeting, Miss X emailed the school to confirm that she was formally withdrawing Y.
25. The Council sent multiple emails to both parents throughout September in which it explained the law governing the withdrawal of a child with an EHC Plan from school. This included why the law did not permit the school to remove Y’s name from its pupil roll at that time (that is, because it must be able to name the next educational setting before doing so). The Council also explained it needed to review the evidence to decide whether a change of setting was appropriate.
26. At the end of September, the Council issued a notice to Y’s parents that it would amend Y’s EHC Plan to change the educational setting.
27. In early October, Miss X said that she wished to formally remove Y from school and educate them at home until a suitable school placement could be identified. Y’s father agreed with this decision. The school removed Y from its pupil roll.
28. The Council’s Elective Home Education (EHE) officers liaised with both parents to explain the Council would monitor the suitability of the EHE being provided by the family. The Council planned to carry out an initial monitoring visit in January 2025. In late October, following a meeting with the Council’s EHE and SEN officers, Miss X asked the SEN Team to consult with an out-of-area school. The Council did so, but that school did not offer Y a place.

2025

29. In mid-January 2025, Miss X wrote to the Council stating that EHE was not working and asking for a school place to be identified for Y. The Council considered her request and, a week later, deemed Y to be a Child Missing Education (CME).
30. Miss X and Y’s father stated their preferences for two possible schools. The Council consulted with four schools between late January and late March.
31. Miss X complained to the Council in February that Y had been out of education for seven months.
32. In late March, the Council decided one of the schools it had consulted (the new school) was a suitable placement for Y. The new school said it could not offer Y a place unless it received enhanced support to do so.
33. The Council responded to Miss X’s complaint at stage 1 of its complaints process in late March. That response set out the sequence of events including Miss X removing Y from school and deciding to home educate them, before requesting a new school placement. The Council explained it was consulting with suitable settings but had not yet received an offer of a placement. It explained further that it was in active discussions with the new school about the support it would need to be able to offer Y a place.
34. The Council contacted the new school in April to discuss the funding it would need and met with the new school in May and June to pursue the matter.
35. Miss X escalated her complaint to stage 2 of the Council’s complaints process in early May. The Council responded that it had not had a duty to support Y whilst they were EHE. Now that a school placement was being sought, it apologised for the delay in securing a suitable setting. The Council said it would arrange some interim support for Y in the form of home tuition.
36. Miss X complained to the Ombudsman in mid-June 2025. The Council arranged 10 hours per week of home tuition for Y, starting at the end of June 2025.
37. In early October 2025 the Council approved additional funding for the new school placement and issued a final (amended) EHC Plan naming the new school as the setting.

My findings

38. The Council acted without fault when it issued a notice to amend Y’s Plan at the end of September, following the emergency review meeting of early September 2024. But, as set out at paragraph 12, a Council must issue a final (amended) Plan within a further eight weeks. In this case, that would have been late November 2024. The Council did not issue a final (amended) Plan for Y until early October 2025. This delay of more than ten months was fault. The fault caused injustice to Miss X in the form of uncertainty and delayed her right to appeal the content of Y’s amended Plan to the Tribunal. I will recommend a remedy for that injustice.
39. I turn next to the matter of the educational provision that the Council should have secured when Y was out of school from September 2024 onwards. I have seen evidence that the school and the Council made several attempts throughout September to explain to Miss X that it would likely not be in her interests to EHE Y. That was because choosing EHE would mean the Council no longer had a duty to provide Y with educational provision or support. The Council removed Y from the school roll only in response to Miss X’s settled intention that she would provide EHE for Y until a suitable school placement could be identified, and only when it was satisfied that Y’s father was supportive of Miss X’s decision. And so, the Council was not at fault in failing to arrange educational provision for Y between October 2024 and late January 2025, when Y was EHE.
40. Miss X complained that, once EHE started, the Council did not assess or monitor the education she provided. I have seen evidence that the Council planned to conduct an initial monitoring visit in early 2025, after giving Miss X time to establish a programme of EHE. Y became a CME before that visit could take place. The Council was not at fault.
41. Once the Council had agreed Miss X’s request to formally seek a new placement for Y, in late January, it should have considered whether it had a section 19 duty to arrange suitable alternative educational provision for them. It did not do so, which was fault. In its response to my enquiries, the Council acknowledged that, because Y was a CME, it did have a duty under section 19 duty to arrange to provide them with a suitable education. It did not do so until the end of June 2025. This delay of five months was fault, that caused Miss X distress, frustration and uncertainty, and caused Y the injustice of almost two terms of lost educational provision. I will recommend a further remedy for that injustice.

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Action

42. Within one month of my final decision, the Council has agreed to:
1. Apologise to Miss X and make her a payment of £400 in recognition of the distress, frustration, uncertainty, and delayed appeal rights caused by the Council’s faults that I have identified above; and
2. Make Miss X a payment of £2500, for Y’s benefit, in recognition of their lost educational provision between January and June 2025.
43. Within three months of my final decision, the Council has agreed to create an action plan showing how it will improve its internal processes for considering its section 19 responsibilities and making the necessary arrangements to put alternative provision in place in a timely manner.
44. 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 in my findings.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. 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