Summary: Miss X complained about the lack of the Council’s support for Y after she had been taken off her school’s roll to be Electively Home Educated and the misleading advice received from the Council. She also complained about the delay with Y’s Education Health and Care needs assessment. We found fault with the significant delay to assess Y’s needs due to the lack of the Education Psychology advice. The Council has already apologised. The Council has also agreed to make a payment to recognise the injustice caused to Y and Miss X.

The complaint

1. Miss X complains about the Council’s:
• lack of support for her daughter Y after she had been taken off her school’s roll;
• delays with Y’s Education Health and Care (EHC) needs assessment;
• misleading information provided by various members of the Council’s staff.
2. Miss X says the Council’s failings caused worsening in Y’s mental health as she received no education from January to the end of September 2025. Her own mental health, Miss X says, has also been affected as she had to stay home and try to support Y.

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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. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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. 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)
8. 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)
9. 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

10. I investigated what happened in the period between January 2025 and the beginning of December 2025. Although Miss X came to us in July 2025, she raised the same issues with the Council again at the end of November and the Council responded at the beginning of December 2025. The Council has had an opportunity to respond to Miss X’s concerns about what happened after she came to us.
11. Although I did not investigate the events after the beginning of December 2025, I considered whether there was ongoing injustice caused by the Council’s delays with Y’s EHC needs assessment.

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How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
13. Miss 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

14. 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.
15. The ‘Elective home education’ guidance from 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. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
16. 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)

The Council’s Elective Home Education policy

17. Where a child has been electively home educated for some time and parents decide that they wish to return their child back to the roll of a mainstream school, parents may make applications or submit appeals to try to secure a school place at their preferred school.
18. Where the council decides that home education arrangements are no longer suitable and the child needs to be enrolled at a local school, the Education Compliance team will advise parents how to make an application to secure a school place. Advice will ordinarily require the family to reenroll the child at the last secondary school at which they were on roll, unless the family have moved home and the distance from their new home to the last school is not considered to be within ‘reasonable travelling distance’.

Alternative provision

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 the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.

EHC Plan timescales

21. 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:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

What happened

22. Y found transition to a secondary mainstream academy (School 1) challenging. School 1 arranged a part-time timetable for Y.
23. Y had some bad experiences in School 1 with other pupils which culminated in December 2024. Her anxiety about attending School 1 increased, which was confirmed by the medical opinion.
24. Miss X started looking for alternative mainstream secondary schools for Y. The school she found (School 2) did not have free places or a waiting list.
25. Following a telephone conversation in mid-January 2025 Miss X told School 1 that Y would not return and would receive education at home until she got a place in a different school. School 1 took Y off its roll.
26. Later in January 2025 Miss X asked the Council for an EHC needs assessment for Y. The Council told Miss X it would respond by the beginning of March 2025.
27. Miss X started home educating Y but realised it was not working as Y needed routine and structure. She contacted the Council. She said that she was appealing School 2’s decision not to offer a place for Y. She asked the Council to help her secure Y’s place at School 2 as the special educational needs (SEN) team had previously told her that after applying for an EHC needs assessment the Council would help with Y’s school applications.
28. The next day the Council’s Admissions team responded to this communication. The Council stated it could not help Miss X with finding a new placement as Miss X had decided to educate Y at home and had not moved a considerable distance from School 1. The Council advised Miss X to ask School 1 to put Y back on the school’s roll and work with School 1 to find a solution, possibly through a managed move or offsite education.
29. In response to Miss X’s further communication the Council explained that until it issued Y’s EHC Plan, the Council would treat Miss X’s school applications as mainstream in-year applications and follow its protocols accordingly. Although Miss X and Y did not consider Y could return to School 1, Miss X should discuss her concerns and the possibility of a managed move with School 1. The Council would not be involved in the process.
30. Miss X contacted another mainstream secondary school (School 3). She appealed School 3’s refusal of a place. Miss X asked School 3 to place Y on its waiting list.
31. In the third week of March School 1 offered Y a place. Miss X said School 1 insisted Y should attend the school in person, which Miss X did not think was possible so she did not accept the place.
32. Following Miss X’s appeal, a few weeks before the due date for the Council’s response to the SEND Tribunal, the Council agreed to carry out Y’s EHC needs assessment. The Council’s SEND Operations Coordinator (SEND Officer) told Miss X she could expect significant delay in allocating an EP. SEND Officer said it would keep in regular contact with Miss X during the assessment process.
33. In mid-June 2025 Miss X complained about the lack of education for Y for the last six months. She asked the Council to start providing education to Y either at school or out of school and to allocate an Educational Psychologist to prepare statutory advice.
34. In its response to Miss X’s complaint the Council explained that its current timescales for EHC needs assessment significantly exceeded statutory timescales. The Council said School 1 was in contact with Miss X to ensure successful transition back to school.
35. After putting Y back on School 1’s roll, in mid-September the Council’s Education Access team recognised the receipt of medical referral from School 1. A week later the Council asked Miss X to provide details necessary to complete the referral.
36. Two days later the Council told Miss X it had commissioned support from a specific alternative provider (Provider 1). For the time necessary to make arrangements the Council offered Y a place at its online school.
37. After a planning meeting and home visit carried out by Provider 1, from mid-October 2025 Y started receiving four and a half hours of individual tutoring. Provider 1 did not consider group sessions were suitable for Y at the time.
38. At the end of November 2025 Miss X again communicated with the Council about the continuing lack of education for Y. She also said there had been no progress with Y’s EHC needs assessment.
39. The Council explained the delay with Y’s EHC needs assessment was caused by the shortage of EPs. The Council considered it had discharged its duties towards Y’s education, as she was back on School 1’s roll of and attending alternative provision.
40. At the beginning of February 2026 the Council allocated an EP to prepare their statutory advice for Y. The EP statutory advice was completed in mid-March 2026.

Analysis

Elective Home Education

41. Paragraphs 16 and 18 of this decision specify the Council’s duties for children whose parents decide to educate them at home. Parents who change their minds should follow in-year admission process. The Council will advise parents how to make application to secure a school place in the child’s last secondary school, unless the family has moved and the home to school distance would be excessive.
42. After Miss X’s correspondence about the unsuitability of home education for Y, the Council promptly advised Miss X about the due process for school applications. It explained that applying for a place at School 1 would not necessarily mean that Y would need to attend in person. School 1 could also arrange a managed move or provide education offsite. This is what happened in September 2025.
43. Miss X stated that in spring 2025 School 1 insisted on Y attending in person. The Council is not responsible for the school’s actions and, as explained in paragraph five, we cannot look at the content of School 1’s communication with Miss X either.
44. I did not find fault in the Council’s actions following Miss X’s decision to Electively Home Educate Y. The Council advised Miss X on the correct process to follow and was aware Miss X was applying to Schools 2 and 3 and appealing their decisions. School 1 offered a place for Y. Miss X’s refusal to accept it and the details of her communication with School 1 were outside the Council’s control.
45. Miss X complained about the Council’s misleading advice given to her in December 2024 and January 2025. She said the Council’s SEND team suggested the Council would help with finding a school for Y once Miss X applied for an EHC needs assessment for her. Miss X received this advice during a telephone call.
46. I cannot decide, even on the balance of probabilities, whether the Council’s advice to Miss X about the impact of the EHC needs assessment process on school applications was misleading or whether she misunderstood what was discussed. This is because all the written correspondence from the Council to Miss X from January 2025 contains accurate advice. This advice is consistent with the Council’s policy on Elective Home Education and clearly explains the EHC needs assessment does not affect school application process. The process changes only when a final EHC Plan is issued.

Alternative provision

47. In October 2025 School 1 arranged alternative provision for Y after it had put her back on its roll in September 2025. Prior to deciding on the package of educational support Provider 1 held a planning meeting and visited Y at home. Until Provider 1 finalised the arrangements with Y, the Council offered online tuition.
48. Alternative provision should normally be full-time. As explained in paragraph 20, however, councils and schools should be guided by the child’s needs and how much education the child could access. There is evidence that when deciding on the package of education for Y Provider 1 assessed her needs. This is what we would expect. In such circumstances, considering in particular how long Y had been out of school as well as her social, emotional and mental health needs, limiting an initial educational offer to a few hours of alternative provision seems justifiable.
49. I did not find fault with the way the Council discharged its Section 19 duty for Y in the autumn term 2025.

EHC needs assessment

50. Miss X asked for an EHC needs assessment for Y in mid-January 2025. The Council should have responded to this request within six weeks and, if agreed, made its decision on whether to issue Y’s EHC Plan by mid-May 2025.
51. The Council decided not to carry out Y’s EHC needs assessment at the beginning of February 2025. After Miss X had appealed this decision, in the second week of May the Council decided to assess Y. As explained in the judgement of 5 December 2023 R (on the application of W) v Hertfordshire County Council [2023] EWHC 3138 (Admin) for the cases of appeals against the council’s decision not to carry out an EHC needs assessment where there is no consent order we should apply the usual timescales specified by the SEND Regulations 2014 regulation 10 and 13.
52. The Council’s delay of over ten months in deciding whether to issue an EHC Plan for Y is fault. This failure was caused by the shortage of EPs which is a nation-wide problem and outside the Council’s control. Therefore we consider this was a service failure rather than maladministration.
53. The Council’s delay caused injustice to Miss X as she remained uncertain whether the Council would issue an EHC Plan for Y and find her a suitable school. Miss X frequently contacted the Council to ask for updates and spent much time on this communication and complaining. She was distressed by the delay, especially since Y was out of school and Miss X needed support to ensure suitable education for her.
54. As we do not know the outcome of Y’s EHC needs assessment process, it is not possible to decide whether the Council’s delay caused injustice to Y.

Remedies

55. In its responses to Miss X’s complaints about delays the Council already apologised for the injustice caused.

Service improvement

56. In response to our service improvement recommendation in another recent decision 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.
57. We recognise it will take some time for the Council to address its failings identified 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

58. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of the final decision pay Miss X £1,000 to recognise the injustice caused to her by the Council’s delay in completing Y’s EHC needs assessment. The Council will provide the evidence that this has happened.
59. The Council will continue paying Miss X £100 a month for each full month of any further delay in deciding whether to issue an EHC Plan for Y starting from 13 March 2026. The Council will make a payment within a week from the 13th day of each consecutive month in which the decision has not been made. These payments cannot continue beyond 13 September 2026.

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Decision

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

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Investigator's decision on behalf of the Ombudsman