Summary: There was fault by the Council. It failed to properly consider its duty to make alternative educational provision when Mrs X’s child could not go to school; it took too long to secure a school place for him; and it failed to make the provision set out in his Education Health and Care Plan. The Council’s shortcomings caused Mrs X and her son distress and uncertainty, and meant that he missed education. The Council will apologise to Mrs X, make a symbolic payment, and review the complaint so that it can disseminate lessons learned to relevant staff.

The complaint

1. Mrs X complains about how the Council dealt with her child’s education. In particular Mrs X complains:
• The Council failed to provide suitable educational provision for her child, K, when they could no longer go to school.
• It named ‘electively home educated’ as the child’s placement in the Education Health and Care (EHC) Plan despite that she had told the Council that she wanted her child to go to school.
• The Council took too long to find a school place that would meet K’s needs.
2. Mrs X says that as a result of the Council’s failings her child missed out on education, he became isolated, and his mental health deteriorated significantly. Mrs X also says she has been caused significant distress.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)

Back to top

What I have and have not investigated

5. I have investigated the Council’s actions from December 2023 to July 2025.
6. 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)
7. Mrs X complained to the Ombudsman in June 2025 and so we would normally begin our investigation from June 2024. However, I have exercised discretion to investigate from the start of December 2023. Mrs X had good reason not to complain to the Ombudsman sooner because she had been pursuing matters with the school and then the Council. As the EHC Plan process progressed she believed that her issues could be resolved.
8. The Council named K’s educational setting as Electively Home Educated in her EHC Plan. Mrs X did not agree with this and she had the right to appeal to a 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. 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.
10. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right
11. I have decided that it was not reasonable to expect Mrs X to appeal to the Tribunal. The Council had told her it was naming the educational setting as Electively Home Educated temporarily while it looked for a school for K. Mrs X was entitled to rely on this promise. In addition, the main reason K was not at school was not due to his special educational needs, but because the Council could not find a school for him.
12. For these reasons, I have investigated the lack of educational provision despite that Mrs X had the right to appeal to the Tribunal to change the EHC Plan.

Back to top

How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

The law and guidance

EHC Plans

16. 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.
17. 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. 

Alternative provision

18. 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.
19. 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.
20. 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.
21. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
22. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Elective Home Education

24. 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.
25. 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.
26. The Department for Education (DfE) issued new guidance in April 2019. The 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.

What happened

27. Mrs X’s son, K, has special educational needs. He was struggling to stay in school and his attendance was very low. In October 2023, the school offered K a reduced timetable of 3 hours each morning. Mrs X tells me he only managed this for around two weeks and then he could not attend due to anxiety.
28. In November 2023, the Council agreed extra funding for the school to support K to return to school. The school said it would continue a reduced timetable, give him 1:1 support in classes, provide lego therapy and a weekly session to support K’s mental health. The school told the Council that K was seeing the Child and Adolescent Mental Health Service weekly and had started medication. It was clear that K had stopped going to school.
29. Mrs X understood that the Council would not extend the reduced timetable and that K was now expected to return to school full time. Mrs X says that K tried to go back to school but he could not.
30. Mrs X says the school told her it could not meet K’s needs and it would not support an EHC needs assessment. K’s mental health was deteriorating. Mrs X says the school told her K’s absence was not authorised and it would start enforcement action against her. In July 2024, Mrs X decided she had no option but to deregister K from the school and electively home educate him. She also requested an EHC needs assessment.
31. The Council agreed that K should have an EHC Plan. In September 2024, Mrs X emailed the Council to say that she did not want to home educate K and she wanted him to go to a school.
32. In November, the Council issued a draft EHC Plan and consulted various schools including Mrs X’s preferred school. The schools could not take K because they either could not meet his needs or they were full. Mrs X again was clear that she did not want to home educate K and wanted him to go to a school.
33. In December, the Council issued the final EHC Plan but named K’s educational setting as Electively Home Educated. The Council told Mrs X that it was consulting numerous schools.
34. Throughout January and February 2025, the Council continued to consult many schools but none could meet K’s needs.
35. At the beginning of March, Mrs X complained to the Council that it had failed to provide K with an education. She told the Council that this was having a detrimental effect on K’s mental health, and the rest of the family. K remained on long-term medication relating to his disability, and had regular medical reviews. The next day, the Council offered to arrange for K to have a tutor.
36. At the beginning of April, Mrs X chased the Council because the tutoring had not started and she had not seen the final EHC Plan. The Council sent Mrs X the Plan and it was then that she realised the Council had named K’s educational setting as Electively Home Educated. Mrs X immediately told the Council that she had not agreed to that. The Council explained that it had done this to comply with the legal deadlines for issuing the Plan.
37. The Council responded to Mrs X’s complaint. It said it had so far not been able to find K a school place but would keep trying. The Council was due to review K’s EHC Plan in December 2025, but it said it would complete an early review of the Plan, and it would ask that tutoring started as a priority. The Council acknowledged that this had taken too long and that it had not kept in touch with Mrs X about the delay. It apologised for this.
38. Mrs X asked the Council to consider her complaint at stage two of its process.
39. Alternative provision started on 6 June 2025, at 10 hours per week of tutoring across the key subjects.
40. The Council responded to Mrs X’s stage two complaint. It acknowledged that there had been some delays but the alternative provision was now progressing, and it had been in regular contact with Mrs X. The Council also acknowledged that it had not reviewed the EHC Plan early as it said it would.
41. In the meantime, K had visited a prospective school. The school offered K a place, and the Council issued a new EHC Plan naming the school. K started at the new school from September 2025.

Was there fault by the Council causing injustice?

December 2023 to July 2024

42. The Council became aware that K was not in school in November 2023 when the school asked it to fund a plan to support his return. At this stage, the school had a structured plan to reintegrate K back to school. The Council has shown that it considered this plan properly and decided to fund more support and not make alternative provision at that time.
43. The Council says it had no further information about K’s attendance until July 2024 when Mrs X asked it to assess K for an EHC Plan. The Council says that the school should have got back in touch with it if the reintegration plan was not working.
44. Given that the Council knew that K was not attending school and had not for some months, and he was receiving treatment from the mental health service, I would have expected the Council to check that the reintegration plan was working, or require the school to report back to it on this, before the end of the school year. This lack of oversight was fault by the Council. Had the Council done so, it is more likely than not that it would have decided that it had a duty to make alternative educational provision for K.

July 2024 to November 2024

45. K was electively home educated from July 2024. I appreciate that Mrs X deregistered K to relieve the pressure that he felt from the expectation that he would return to the school, which Mrs X reports was making his mental health significantly worse. However, we cannot say that Mrs X would not have chosen to home educate K had the Council reviewed the situation sooner.
46. Once, Mrs X deregistered K from the school and chose to home educate, she became responsible for K’s education and the Council had no duty to make provision.

November 2024 onwards

47. Mrs X told the Council in September 2024 that she did not want to home educate and she wanted K to go to a school. The Council issued the draft EHC Plan in November and Mrs X was clear her preference was for mainstream school and she expected the Council to name a school in the final EHC Plan.
48. At that stage, the Council should have considered whether K was still electively home educated and checked whether he was getting a suitable education. This was fault by the Council.
49. The Council issued the final EHC Plan in December 2024 and named elective home education as K’s setting in his EHC Plan. Government guidance, SEND Code of Practice, says that the Council should consult with the parent for their preference. Mrs X told the Council that she wanted K to go to a specific school. The school said it could not meet K’s needs. The Code of Practice says that where the Council cannot meet the parent’s preference it must specify mainstream education unless it is against the parent’s wishes or incompatible with the education of other pupils.
50. It was clear that Mrs X no longer wanted to home educate. I also note that the provision set out in the draft and then final EHC Plan includes actions to be carried out by teachers and so was clearly not compatible with home education. However, there is no evidence that the Council considered naming mainstream provision in the EHC Plan.
51. The Code of Practice also says that where a parent wants mainstream education for their child, and it is not incompatible with the education of other pupils, the Council has a duty to secure that provision.
52. The Council consulted many schools but none could meet K’s needs. The Council’s failure to secure K an education between December 2024 and September 2025 was service failure.
53. The Council first offered alternative provision in March 2025. It is not clear what prompted this. The Council should have reconsidered in 2024 whether it had a duty to make alternative educational provision for K, as it was clear that Mrs X was no longer home educating him, and she could not enrol him in a school. This was fault by the Council. For the same reasons, the Council should have considered whether it could make the provision set out in K’s final EHC Plan from December 2024. This too, was fault by the Council.
54. Overall, the Council’s shortcomings meant that it is likely that K missed out on alternative educational provision from March 2024, when we might have expected the Council to review the school’s plan, to July 2024, when Mrs X decided to home educate K; and from mid December 2024, when the Council issued the final EHC Plan, to the start of June 2025, when the alternative provision started. Mrs X says that her son became isolated, and his mental health deteriorated significantly and he became very unwell.
55. The Council also caused Mrs X severe distress, uncertainty and frustration. Mrs X has described to me the significant impact on her of the Council’s shortcomings. She has explained how she has had to start medication to help her manage.
56. The Council has adopted and is currently implementing an Improvement Plan to improve how it delivers across all parts of its special educational needs and disability services.

Back to top

Action

57. The Council will within one month of the date of this decision:
• Apologise to Mrs X for the impact of its shortcomings on her and her son. 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.
• Make a symbolic payment to Mrs X in recognition of the impact of K missing education and the distress, uncertainty, and frustration this caused K and Mrs X. The Council should pay £3,230 to reflect the total impact of missed education in the summer term of 2024 and the autumn, spring, and summer terms of 2025 (£1,200 per term or £92 per week).
58. The Council should within three months of the date of this decision review Mrs X’s complaint, identify lessons learned and brief staff on these to include:
• Ensuring careful consideration of whether a parent continues to electively home educate, especially when they express a preference for school as part of an EHC Plan; and
• Ensuring careful consideration of its duty to make alternative provision when a school cannot reintegrate a child, and how it monitors reintegration support plans.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

60. I find fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman