Summary: The Council was at fault for failing to act after Mrs X notified the Council that her child, Y, was not receiving a suitable education at home between January 2024 and May 2025. The Council was also at fault as it failed to issue Y’s Education, Health and Care (EHC) Plan within the statutory timescales, caused in part by a delay in obtaining Educational Psychologist advice. The Council has agreed to apologise and make a payment to recognise Y’s missed education.

The complaint

1. Mrs X complained the Council failed to act after she notified it Y was not receiving an education at home. Mrs X also complained it failed to issue Y’s Education, Health and Care (EHC) Plan within statutory timescales. Mrs X said Y has missed out on a suitable education and this has caused distress, frustration and uncertainty.

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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. 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(i), as amended)
5. 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

6. 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). 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.
7. In May 2025 the Council issued Y’s final EHC Plan naming a mainstream school. Mrs X appealed as she did not agree a mainstream school could meet Y’s needs. I cannot investigate anything past May 2025 when the final EHC Plan was issued. Doing so would involve looking at the Council’s decision to name a mainstream school and therefore trespassing on the Tribunal’s jurisdiction.

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How I considered this complaint

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

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What I found

Relevant law and guidance

Elective Home Education (EHE)

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 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. 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).
12. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
13. 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.
14. The 2019 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.
15. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.
16. The guidance says that councils should gather and record as much information as possible from other agencies.
17. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is likely to satisfy the test.

EHC Plan

18. 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.
19. 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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

20. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.

What happened

21. Mrs X has a child Y who is of secondary school age and has special educational needs. Y was attending a mainstream school until the summer holidays in 2023. However, Mrs X chose to electively home educate (EHE) Y in September 2023 due to their inability to attend school for several reasons. This included their special educational needs, school related anxiety and placement breakdown. Mrs X enrolled Y in an online school.
22. In October 2023, Mrs X contacted the Council to request support with Y. It transpired Mrs X had not completed her home education plan and the Council had not approved Y as a EHE student. The Council asked Mrs X to submit her home education plan.
23. The same month Mrs X submitted a request for an Education Health and Care (EHC) needs assessment for Y. The Council agreed to this and requested an Educational Psychology (EP) assessment.
24. In November 2023 Mrs X submitted her home education plan. In the plan, Mrs X said she had no other option than to pay for Y to do online home schooling as they refuse to go to school. However, Mrs X said they will not do the online home schooling, wanders away from the laptop and refuses to do any homework. Mrs X also said she cannot afford this and requested help from the Council as she is finding it all incredibly difficult.
25. In December 2023, Mrs X contacted the Council’s supporting families service as she was struggling to meet Y’s needs. The records show Mrs X told the Council Y was refusing to attend school. Two days later the Council emailed her saying as Y was enrolled in an online school for eight subjects it would approve the home education plan.
26. Mrs X responded to the email expressing confusion at this as she had told the Council already that Y was refusing to sit at their desk and take part in the online school. Mrs X advised home education was not working for Y. The Council emailed back to say it had approved the home education plan and it would review this annually.
27. At the end of December, a social worker had an initial visit with Mrs X and Y as part of the supporting families service. The social worker suggested Y access alternative provision whilst awaiting the outcome of the EHC needs assessment. In January 2024, the social worker recorded they would contact the alternative education provider, but there is no evidence this went any further. The records show the social worker made other referrals but these also went no further.
28. In March 2024, Mrs X was closed to the supporting families service as it had completed its intervention. Between March and October 2024, Mrs X emailed the Council multiple times asking for updates on the EHC Plan and advising Y would not do the online schooling.
29. In October 2024, the Council emailed Mrs X to request an update on Y’s home education plan. The Council said if Mrs X did not provide evidence of a suitable education, either through a suitable Home Education Plan (HEP) or by the child being placed upon a school roll, the Council would serve her with a notice of intent to serve a school attendance order. Mrs X advised Y was not meeting the criteria for home education as they refuse to do work at home. Mrs X said she had told the Council this multiple times but it advised her to continue to wait for the Council to issue the EHC Plan.
30. The Council again asked her to send the home education plan. In November 2024, Mrs X sent the Council this. In this Mrs X states she enrolled them in online school but Y can’t complete this. The plan asks how Mrs X intends to cover the core subjects such as Maths and English. Mrs X wrote in the plan that she spoke to an attendance officer who said there was no point forcing Y to do this as it was creating a stressful environment.
31. The Council emailed Mrs X saying it was satisfied with the information she provided and approved the home education plan.
32. Mrs X raised a stage one complaint that the Council had failed to provide any educational provision whilst they waited for the outcome of Y’s EHC Plan. This was despite Mrs X making it clear they were not receiving a suitable home education.
33. In December 2024, the Council received the EP advice for the EHC needs assessment.
34. The Council issued a stage one complaint in January 2025 upholding the delays with the EHC Plan.
35. The following month the Council issued a stage two complaint response fully upholding the complaint. It said the Council’s acceptance of the home education plan indicated that Mrs X was providing Y with educational provision in line with the home education guidance. However, it understood Y’s refusal to participate meant the plan was not meeting their needs, and it deeply regrets its failure to recognise that earlier. The Council said it had a responsibility to ensure their educational needs were being met particularly as they face challenges engaging with the learning process.
36. Mrs X remained dissatisfied with the matter and complained to us.
37. Following this, the Council issued Y’s draft EHC Plan in February 2025 and the final EHC Plan in May. Mrs X subsequently appealed this.

Council’s response to our enquiries

38. The Council said it made several attempts to provide support and provision for Y whilst under home education but none of them came to fruition. The Council said Mrs X felt that Y required a smaller specialist setting that it said only an EHC Plan would give access to. Delays in the EHC needs assessment process contributed to its failure to resolve this situation.
39. The Council said it is doing the following the reduce EP delays:
• Commissioned interim Educational Psychologists to complete the statutory EP assessments
• Employed ten additional caseworkers to help clear the backlog of EHC Plans waiting to be drafted
• Trialled and implemented the use of a programme which uses artificial intelligence to decrease the time taken to draft an EHC Plan and improve the quality of these.

My findings

Elective Home Education

40. In December 2023, Mrs X had notified the Council Y was not receiving an education at home as they would not engage with the online school Mrs X had enrolled them into. The Council signed off on the home education plan twice despite Mrs X clearly writing in the plan both times that it was not working. She also emailed the Council multiple times saying this. The records show that the Council looked into alternative education providers for Y in January 2024. Therefore, on a balance of probabilities, the Council knew the home education was unsuitable and it decided from this point alternative provision would be appropriate.
41. The Council’s failure to implement alternative provision and/or enforce Y’s attendance at the allocated school was fault. As a result, Y has missed out on the opportunity to receive an education between January 2024 and May 2025 which equates to just over 4 school terms. However, had the Council put the alternative provision in place, I cannot say how much of this Y would have engaged with. I have made a suitable financial remedy below to recognise the injustice caused.

EHC Plan delays

42. Following Mrs X’s request for the Council to carry out an EHC needs assessment, it had to follow the statutory timescales set out in the law and the code. Therefore, the Council should have decided whether to issue a Plan by February 2024 and then issued the final Plan by end of March 2024.
43. The EP advice should have been available to the Council by mid January 2024 in order for it to have met the March deadline. It did not receive the EP report until mid-December 2024 which was a delay of 11 months and fault. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
44. After the EP gave their advice, the Council then took too long to finalise Y’s EHC Plan. With EP advice in hand, it should have issued the final Plan within eight weeks of receiving the EP advice, taking account of the timescales set out in the Code. This includes time to:
• write a draft EHC Plan;
• issue it to the family and give them 15 days to consider the draft EHC plan and provide their comments; and
• 15 days for the education establishment to comment.
45. The overall guidance is that final plans should be issued as quickly as possible.
46. This should have been completed by mid-February 2025 at the latest but it was not completed until mid May 2025. This fault caused Mrs X distress, frustration and uncertainty and significantly delayed her appeal rights.
47. The Council has provided us with an action plan addressing its delays in the EHC Plan process. Therefore, it does not require a further service improvement.

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Action

48. Within one month of the final decision, the Council has agreed to take the following action:
1. Pay Mrs X £900 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
2. Pay Mrs X £200 to acknowledge her delayed appeal rights and the distress, frustration and uncertainty caused by the Council’s delay in issuing Y with an EHC Plan after obtaining advice from an Educational Psychologist.
3. Pay Mrs X £3900 to recognise Y’s missed education between January 2024-May 2025.
4. Provide training and/or guidance to the relevant officers to ensure home education plans are approved in line with the relevant guidance and action is taken when it clear the child is not receiving a suitable education.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. 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