Summary: Mrs X complained about the remedy proposed by the Council in response to her complaint about its failure to secure the provision set out in her child’s Education Health and Care Plan and its failure to secure a suitable school place. We have found fault by the Council but consider the additional action it proposed of an apology and additional payment provided a suitable remedy.

The complaint

1. The complainant, Mrs X, complains about the remedy proposed by the Council in response to her complaint about its failure to secure the provision set out in her child’s (Z) Education Health and Care Plan and its failure to secure a suitable school place. Mrs X says there is still no confirmed school place for her child and the payment offered by the Council is not enough for the distress and uncertainty she has suffered or the harmful impact on her child’s education and welfare.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

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

Background and legislation

7. 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. 
8. 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)  
9. 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. 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)
10. 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 (EHE) 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.
11. There are no specific legal requirements for the content of home education; it does not need to include particular subjects, follow the National Curriculum or culminate in examinations. It does not need to follow a typical ‘school day’. Councils should not assume an unconventional approach constitutes unsuitable education and approaches should be judged on outcomes.
12. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
13. The Department for Education issued revised guidance in April 2019 which sets out that when a child has an EHC plan, it is the local authority's duty to ensure that the educational provision specified in the plan is made available to the child - but only if the child’s parents have not arranged for the child to receive a suitable education in some other way. Therefore, if the home education is suitable, the local authority has no duty to arrange any special educational provision for the child; the plan should simply set out the type of special educational provision that the authority thinks the child requires but it should state in a suitable place that parents have made their own arrangements under section 7 of the Education Act 1996. The authority should also continue to check the suitability of the home education as required by sections 436A and 437 of the 1996 Act, and if at any point it considers that the home education is no longer suitable, it must ensure that the special educational provision specified in the EHC plan is made available.

What happened

14. The following is a summary of key events. It does not include everything that happened.
15. The Council issued the final EHCP for Mrs X’s child (Z) in March 2024. Although Z was being home educated at the time there was no suggestion in the Plan that the parents had made their own arrangements under section 7 of the Act. Section F of the Plan was clearly aimed at transitioning Z to attend an education setting. This included weekly small group sessions provided by a trained learning assistant and overseen and monitored by a special educational needs coordinator (SENCO). This could not be provided in the home setting.
16. The Council has a duty under section 42 to secure the specified special educational provision (section F) in an EHC Plan. The Code says the provision should be in place from the date the final EHC Plan is issued. Where the provision is proposed by the Council in a draft EHC Plan, the Council should be ready to secure that provision when the EHC Plan is finalised.
17. The Council has accepted this did not happen and suitable provision was not secured. The Council has also acknowledged that due to case management issues and poor communication X was recorded as being EHE and it did not consider its section 19 duties as a result. This is fault.
18. The Council has explained the significant staffing challenges during this period and the steps it has taken to address the issues highlighted by this complaint. The Council has provided details of its action to improve communication and oversight in the relevant areas to prevent a recurrence. I have therefore not made any service improvement recommendations as we will monitor the impact of these changes through our complaints.
19. The Council has provided a copy of the most recent EHE report which evidenced progress was being made and Mrs X was an experienced home educator. There were no concerns about the provision being offered at home. The Council recognises that the EHE Officer considered Z’s needs were being met as much as possible but that this was based on a specialist setting being sourced.
20. The Council has confirmed a suitable setting has been named for September 2025.
21. At the outcome of its complaint procedure, the Council had offered Mrs X £1,000 as a symbolic payment for her avoidable distress. This is in line with the Ombudsman’s guidance for payments to reflect avoidable distress and uncertainty.
22. However, in responding to the Ombudsman, the Council has accepted that structured reintegration support, group sessions, and specialist input overseen by a SENCO should have been provided to Z from March 2024.
23. The Council has proposed a further payment of £3,200 to reflect this missed provision for the period from March 2024 until the end of the academic year in 2025. The Council notes that Z was receiving some home education during that time.
24. In the circumstances of this complaint, I am satisfied the Council’s proposed additional payment provides a reasonable and proportionate remedy and we would not seek more.

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Action

25. The Council will take the following action within one month of my final decision to provide a suitable remedy for Mrs X:
1. write to Mrs X to apologise for the delay in providing the necessary provision for Z and the uncertainty and distress this caused to the family;
2. make a symbolic payment to Mrs X of £1,000 (if this has not already been paid) to reflect the avoidable distress to her family; and
3. pay Mrs X £3,200 to recognise the period of missed provision from March 2024 to the end of the academic year in 2025.
26. 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.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman