Summary: Mrs X complains the Council wrongly classified her child, Y, as Electively Home Educated rather than a child missing school. Mrs X says this led to the Council failing to provide any alternative provision. Mrs X says the Council refused an Education, Health and Care Plan without proper consideration. Mrs X says when the Council did issue and Education, Health and Care Plan it did not provide the provision noted within it. Mrs X says Y’s secondary education has not started well and he has missed out on education and social experiences. She says Y has regressed academically and emotionally. Mrs X says the Council was aware both parents suffered with their health and its actions have worsened their conditions. We have found fault in the Councils actions for failing to consider its Section 19 duty. The Council has agreed to write to Mrs X to issue an apology and pay her a symbolic payment.

The complaint

1. Mrs X complains the Council wrongly classified her child, Y, as Electively Home Educated (EHE) rather than a child missing school. Mrs X says this led to the Council failing to provide any alternative provision. Mrs X says the Council refused an Education, Health and Care (EHC) Plan without proper consideration. Mrs X says when the Council did issue and EHC Plan it did not provide the provision noted within it.
2. Mrs X says Y’s secondary education has not started well and he has missed out on education and social experiences. She says Y has regressed academically and emotionally. Mrs X says the Council was aware both parents suffered with their health and its actions have worsened their conditions.

Back to top

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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(1), 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).

Back to top

What I have and have not investigated

8. I have not investigated Mrs X’s complaint about the Council’s refusal to issue an EHC Plan as this was appealed to the Tribunal.
9. I have considered Mrs X’s complaints about the Council’s failure to provide alternative provision. I have also considered Mrs X’s complaint about what provision was in place following the Council issuing an EHC Plan.

Back to top

How I considered this complaint

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

Back to top

What I found

Law and Guidance

Alternative Provision

12. 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.

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.

Education, Health and Care Plans

14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

What happened

15. Mrs X contacted the Council in early March 2024 to say she was declining the secondary school place offered to her son, Y. The Council recorded this several days later.
16. Mrs X requested an Education, Health and Care Needs Assessment (EHCNA) for Y in late March 2024.
17. Y stopped attending school in July 2024 when his primary education came to an end.
18. The Council says it received correspondence from Y’s primary school in early September 2024 that Mrs X intended to EHE Y. Mrs X contacted the Council the following day to confirm she had declined the school place offered by the Council and an appeal for a place at another school was unsuccessful.
19. The Council spoke to Mrs X in mid-September 2024 and gave advice about EHE and sent out guidance to Mrs X in late November 2024.
20. Mrs X contacted the Council in late November 2024 and confirmed she had not said she was EHE Y.
21. The Council issued a final EHC Plan for Y in mid-February 2025, and Y started attending school in May 2025.
22. Mrs X raised a complaint with the Council in May 2025 and said she was unhappy the Council incorrectly categorised Y as being EHE and that Y had been out of education since July 2024. Mrs X also said she was unhappy with the Council declining to issue an EHC Plan initially.
23. The Council responded to Mrs X in late June 2024 and said the EHC assessment process considered professional views and that Mrs X had a right of appeal which she used. The Council accepted that no formal instruction had been received from Mrs X that she was EHE Y and apologised for the misunderstanding.
24. Mrs X raised a stage two complaint and said there was a delay in agreeing the EHC Plan and she was unhappy no remedy had been offered regarding the incorrect recording of EHE. Mrs X also said Y was not offered any provision and the Council did not consider its section 19 duty.
25. The Council responded to Mrs X’s stage two complaint in mid-August 2025. It again apologised for the error regarding the recording of EHE. The Council said it had made an offer of mainstream education which was declined and apologised for its contribution to the gap in Y’s education. The Council offered Mrs X £700 to recognise the missed provision.

Analysis

Alternative provision

26. The Council has accepted it did not receive confirmation from Mrs X that she was going to EHE Y from September 2024. It has also accepted it should have done more to check with Mrs X when it received confirmation from Y’s primary school that Mrs X was going to be EHE him.
27. While I understand why the Council believed Y would be EHE following Mrs X declining the secondary school place, I cannot see it ever received confirmation of this from Mrs X or checked it with her. This is fault.
28. Following Mrs X confirming that she was not EHE Y in November 2024 I have not been able to see the Council took any action to consider its Section 19 duty. This is fault. This has caused Y to miss provision between September 2024 and May 2025 and has caused Mrs X distress and frustration.

Provision after EHC Plan issued

29. Mrs X says Y has not received the provision promised when his EHC Plan was issued. Mrs X says the Council should have provided Y with catch up sessions.
30. I have not been able to see ‘catch up sessions’ noted in Section F of Y’s EHC Plan and the Council has confirmed Y’s school has been providing the provision set out in Section F. As such I have not found fault in the Council’s actions.
31. Mrs X has provided a copy of a review document dated February 2026 which refers to catch up sessions. If Mrs X is unhappy with the content of Y’s EHC Plan following a review, she has the right to appeal to the Tribunal.

Action already taken by the Council

32. In response to our enquiries the Council has increased the offer made to Mrs X to recognise the missed provision to £2,000 plus an additional £200 for Mrs X’s personal injustice. While I welcome the Council trying to resolve the complaint I do not think this offer goes far enough to recognise the significant injustice suffered by Mrs X and Y.
33. The Council has confirmed it has completed service improvements in relation to its Section 19 duties. These include providing clearer guidance, actively promoting Section 19 responsibilities through Headteacher forums and resharing policies with schools. The Council has also worked with multiple agencies to strengthen representation within the Section 19 process. The Council confirmed it has completed refresher training for SEND and Attendance staff and strengthened its process. I welcome the steps the Council has taken to improve its service.

Back to top

Action

34. Within four weeks of a final decision, the Council should:

• Write to Mrs X to apologise for the distress and frustration caused by the faults identified. 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.
• Pay Mrs X £5,000 to recognise the missed provision between September 2024 and May 2025. This is calculated at roughly £2,000 per term.

35. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

36. I find fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman