Summary: Miss X complained the Council failed to provide suitable education for her child, update her child’s Education, Health and Care Plan or provide the provision detailed in the plan since 2022. We found fault with the Council failing to provide suitable education for Miss X’s child for four terms and eight weeks. We also found fault with the Council delaying reviewing and issuing an amended Education, Health and Care Plan for Miss X’s child for 19 months. The Council has accepted our recommendations detailed in paragraphs 74 and 75 of this decision statement including provision of an apology and payment for the injustice caused and production of an Action Plan to address the faults found in this decision.

The complaint

1. Miss X complained the Council delayed consulting with other schools since she removed her child from their previous school in 2022. Miss X says the choice to educate her child at home was not elective but to remove them from suffering from school.
2. Miss X says the Council’s actions have left her child without a formal education and without socialising opportunities.
3. Miss X also complained the Council failed to update her child’s Education, Health and Care Plan since 2022. Miss X says the Council has also failed to provide relevant therapies for her child as detailed in their Education, Health and Care Plan.

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The Ombudsman’s role and powers

4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
6. 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).
7. 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)
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(i), 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. The Ombudsman cannot investigate a complaint when a person takes more than 12 months to complain to us about something a council has done. Miss X only brought her complaint to the Ombudsman in January 2025, meaning all matters before January 2024 would normally be outside our jurisdiction.
11. The Ombudsman can exercise our discretion to investigate beyond 12 months when there are good reasons to do so. There is good reason to investigate matters back to 23 May 2023. This is because the Council should have reviewed the Education, Health and Care Plan by this date and the lack of contact from the Council in 2023 meant Miss X did not have enough information about whether she could complain about the situation.
12. I have therefore investigated Miss X’s complaints from 23 May 2023. All matters before 23 May 2023 are outside the Ombudsman’s jurisdiction to investigate.
13. I have ended my investigation on 10 March 2025. While the Council issued its final complaint response in October 2024, it continued to work on the fundamental issues in Miss X complaint until 10 March 2025. This continuation of the Council’s involvement in the complaint matter meant it had opportunity to consider the situation and address Miss X’s concerns up to 10 March 2025. From 10 March 2025, there is a significant enough change in circumstances to require a separate complaint to consider any issues after this date.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and Regulations

EHC Plans

16. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
17. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
18. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
19. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
20. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
21. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
22. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
23. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

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. The SEN Code of Practice 2015 outlines that a council should work with a parent to ensure a child’s SEN needs are met when they are being electively home educated. The Code of Practice outlines that the Dedicated School Grant is intended to fund provision for all relevant children in the authority’s area, including home educated children. A council should fund children’s SEN needs where it is appropriate to do so.
26. The Department for Education confirms a local authority has no duty to assist a parent with costs they incur while electively home educating their children. However, a local authority must given “reasonable consideration” to any request for assistance from a parent who is electively home educating their child.
27. A parent can choose to end home education at any time by applying for school places or contacting the Council for support.
28. 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.
29. The Council’s policy says that where a child who is electively home educated has an EHC Plan, it will review the Elective Home Education and EHC Plan concurrently at the annual review.

Alternative provision of education

30. 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.
31. 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)
32. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
33. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
34. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
35. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable Alternative Provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

36. 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.
37. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
38. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

Background information

39. Miss X’s child, who I shall refer to as Y, had an EHC Plan. On 23 May 2022, the Council issued a decision to amend letter to Miss X for Y’s EHC Plan and issued an amended final EHC Plan on the same date. The Council named Y’s current school as Y’s school placement.
40. In September 2022, Y stopped attending school and Miss X began to Electively Home Educate Y. Y’s school arranged an emergency annual review meeting to discuss Y’s access to education. The Council did not send any notification letters about its decision to maintain, amend or cease Y’s EHC Plan following this meeting.

Matters relating to this complaint

41. On 17 July 2023, Miss X contacted the Council to ask if Y still had an EHC Plan in place. Miss X said she had deregistered Y from school last year and had not heard anything from the Council since. The Council responded to advise Y still had an EHC Plan. Miss X said she believed this EHC Plan should be up for review soon and while she was in no rush for a school placement she thought it was important to check in.
42. On 7 August 2023, Miss X contacted the Council again. Miss X said the EHC Plan was overdue and confirmed she would now like to discuss Y going to a suitable school.
43. On 12 March 2024, Miss X contacted the Council again to advise she had requested consultations with schools at her last Elective Home Education review but had not heard anything since. Miss X named her preferred choice of school. Miss X told the Council she had approached schools herself but whenever she mentioned Y had an EHC Plan the school would direct her to the Council. The Council responded to advise it would consult with schools for Y.
44. In April 2024, Miss X reiterated her request of the Council to consult school placements for Y. Miss X asked for a school placement to be in place for September 2024.
45. On 15 July 2024, the Council told Miss X it would be holding an annual review for Y’s EHC Plan in the autumn term.
46. The Council held an annual review for Y’s EHC Plan on 10 September 2024. During the annual review, Miss X again confirmed she did not want to continue with Elective Home Education. Following the annual review meeting the Council told Miss X it would not be changing Y’s EHC Plan but failed to send a formal notification letter to Miss X.
47. The Council and Miss X liaised about Y’s education. Miss X said she did not want to continue with Elective Home Education and in the absence of a school placement wanted tuition in a centre or somewhere outside the home setting. The Council told Miss X it was consulting with schools for Y and could offer 10 hours of home tuition each week.
48. On 11 September 2024, Miss X lodged a formal complaint with the Council. Miss X said:
• The Council had not updated Y’s EHC Plan since 2020.
• Y had been out of education for three years.
• Y has not received his EHC Plan provisions including the Speech and Language Therapies.
49. In October 2024, one of the schools consulted rejected Y. The Council also decided to amend Y’s EHC Plan following the 10 September 2024 annual review meeting rather than maintaining it as previously advised. The Council did not send a formal notification letter to Miss X about this.
50. On 14 October 2024, the Council provided a complaint response. The Council said:
• Following the annual review meeting in September 2024 it has consulted with schools for Y. The Council said it was still waiting on a response from two of these schools.
• It had offered 10 hours of home tuition for Y on 10 September 2024 and asked if Miss X wanted to proceed with this.
• It considers Y can access mainstream provision of education and will start consultation for secondary schools for September 2025.
• It had decided to maintain Y’s EHC Plan following the September 2024 annual review.
• It accepted it had failed to keep the Elective Home Education under suitable review. However, the Council did not uphold the complaint about education not being provided because Miss X chose to Elective Home Educate Y.
• Miss X could now approach the Ombudsman with her complaint.
51. On 18 November 2024, Miss X contacted the Council about the offer of tutoring for Y. Miss X said she considers Education Otherwise Than At School as the best option for Y. The Council responded to advise all three schools consulted had rejected Y. The Council said it was seeking funding for home tuition while a search for a suitable school placement was ongoing.
52. The Council started to provide 10 hours of education each week for Y outside of school from 10 March 2025.

Analysis

Elective Home Education

53. Miss X decided to Electively Home Education Y in 2022 before the start point of this investigation. I cannot make any comment about the circumstances surrounding this decision or the Council’s actions until May 2023. However, for context, in choosing to home educate Y, Miss X took on the financial responsibility for any costs involved in educating Y. I also cannot comment on the Council’s thinking about the suitability of the education or whether it should provide EHC Plan provision support at the time Miss X chose to Electively Home Educate Y.
54. When a person chooses to Electively Home Educate a child who has an EHC Plan, the Council must either name a mainstream school in the EHC Plan or name Elective Home Education in the EHC Plan. If a council names a school, it has no duty to provide any EHC Plan provision, but a council must satisfy itself that a person is making suitable arrangements themselves.
55. The Council did not update Y’s EHC Plan following the decision to Electively Home Educate Y meaning a mainstream school continued to be named in the plan. This meant the Council had no duty to provide any EHC Plan provision for Y at the start point of my investigation in May 2023.
56. While the Council had no duty to provide the EHC Plan provision, the failure to update the EHC Plan was fault as it did not follow the SEND Code of Practice. This states Councils should update EHC Plans to state a parent has made their own arrangements for a child’s education despite naming a school placement. While I cannot find fault with the Council’s actions before May 2023, as I am not investigating this time period, I can find fault with the EHC Plan not being up-to-date by May 2023. The Council had a duty to consider whether it was appropriate to continue to fund Y’s EHC Plan provision at home. Or decide that its offer of a school placement meant this support was available should Y need. The failure to update the plan shows the Council did not properly consider Y’s Elective Home Education in light of the EHC Plan provision from May 2023; this was fault.
57. The Council’s policy says it will review Elective Home Education during a child’s EHC Plan review. I have addressed the failure to update Y’s EHC Plan and the impact of this in further detail in paragraphs 59 to 64.
58. The first contact from Miss X to request a school placement for Y was in August 2023. Given Miss X’s contact was in August 2023, the Council should have looked to end Y’s Elective Home Education and either find a school placement for Y or provide Alternative Provision of education at this time. The Council took neither of these actions; this was fault. Since August 2023, Miss X has reiterated many times to the Council she no longer wanted to Elective Home Educate Y. I have addressed the Council’s failure to provide suitable education for Y in paragraphs 65 to 70.

EHC Plan reviews

59. The Council had twelve months to review Y’s EHC Plan from completion of the last annual review. The last annual review was completed when the Council issued the notification to amend letter resulting in the 23 May 2022. This meant, the Council needed to hold an annual review and issue a further notification to amend, maintain or cease an EHC Plan by 23 May 2023. Any delays in doing so after this date would be fault.
60. The Council failed to complete a further annual review meeting for Y’s EHC Plan until 10 September 2024; this delay was fault.
61. Despite holding an annual review meeting and telling Miss X it would not be changing Y’s EHC Plan, the Council failed to issue a formal notification letter advising Miss X of this intention and informing her about her appeal rights. This meant the Council did not complete the annual review process; this was fault.
62. The Council later changed its decision and decided to amend Y’s EHC Plan; again the Council did not send a formal notification letter about this which is a repeat of the same fault.
63. By the end point of our investigation, on 10 March 2025, the Council had not issued an amended Final EHC Plan for Y. This meant the Council has delayed for nearly 19 months outside the statutory timescales since 23 May 2023 in completing an annual review of Y’s EHC Plan and in issuing an amended Final EHC Plan, allowing the Council the full 12 weeks from the annual review meeting to issue this amended plan. During this time, the Council also failed to update Y’s EHC Plan to detail that they were now accessing education through Elective Home Education as explained in paragraphs 53 to 56.
64. The Council’s delays will have caused Miss X distress and frustration and have also caused a lost opportunity for Y at receiving suitable provision to meet their needs. The Council should apologise to Miss X for the injustice its fault caused and provide a symbolic payment of £1,150, at £750 per year, for the impact on both Miss X and Y. The Council should also issue the Final amended EHC Plan for Y if it has not yet done so.

Alternative Provision of education

65. The first contact from Miss X to request a school placement for Y was in August 2023. This request from Miss X told the Council that she no longer wished to home educate Y. While Miss X made this contact in August 2023, this was during the summer holidays. This meant the Council only need to look to provide for a suitable school placement for Y starting from September 2023.
66. The Council failed to consider Miss X’s request and failed to provide a suitable school placement for Y. Despite further requests from Miss X, the Council failed to find a suitable school placement for Y from September 2023 till the end point of my investigation on 10 March 2025.
67. The Council must arrange alternative provision of education, in the absence of a suitable school placement, from the sixth day of absence. The Council had a responsibility to provide education for Y from September 2023. Since the Council could not find a suitable school placement for Y it should have considered EOTAS or Alternative Provision of education to start from this date.
68. The Council failed to offer any education for Y either at school or as alternative provision of education until 10 March 2025. This was fault. This fault caused Y to miss 4 terms and 8 weeks of educational provision other than that provided by Miss X in the home setting. This lack of educational provision also caused a loss of any potential EHC Plan provision that Y would have received in a school placement or through an alternative provision of education provider.
69. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
70. I have considered Y’s individual circumstances and our guidance on remedies. This considers the lack of formal educational provision, including EHC Plan provision, Y received caused by delays and lack of action by the Council. This is balanced against the fact that Y has continued to receive education at home from Miss X. I consider, the Council should pay Miss X £1,500 per term for Y’s missed education.

Service Improvements

71. My investigation found fault with the Council for failing to follow various different regulations and guidance about children who are Electively Home Educated and have an EHC Plan. This included:
• Failing to update a child’s EHC Plan when they transfer to Elective Home Education.
• Failing to consider whether the Council should continue to provide/fund EHC Plan provision when a child’s transfer to Elective Home Education.
• Failing to fulfil its duty to find a suitable school placement or provide education for a child when a parent advises they no longer wish to Electively Home Educate their child.
• Failure to follow EHC Plan annual review statutory timescales.
• Failure to amend EHC Plans within statutory timescales.
• Failure to issue notification letters following annual review meetings of a child’s EHC Plan.
72. I consider the Council should produce an Action Plan to address the failings detailed above.

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Action

73. Within four weeks of the Ombudsman’s final decision the Council should:
• Provide an apology and a payment of £1,150 to Miss X for the distress and frustration caused to Miss X and lost opportunity for suitable provision for Y caused by the avoidable delays in reviewing Y’s EHC Plan.
• Issue an amended Final EHC Plan for Y following the annual review meeting held on 10 September 2024 and provide details to Miss X about her appeal rights to the SEND Tribunal.
• Provide a payment to Miss X totalling £6,925 for the four terms and 8 weeks of missed education Y experienced caused by the fault of the Council.
74. Within four months of the Ombudsman’s final decision the Council should:
• Produce an action plan to demonstrate how the council will ensure that it is following the relevant legislation and guidance in relation to Electively Home Educated children and children with Education, Health and Care Plans. This action plan should provide details about how it will meet the following outcomes:
1. Ensuring relevant staff are aware that a child’s Education, Health and Care Plan needs to be updated when they become Electively Home Educated and put in place a process to ensure this is completed.
2. Ensuring relevant staff are aware that the Council has a duty to consider whether it is appropriate to continue to fund a child’s Education, Health and Care Plan provision when they become Electively Home Educated and put in place a process to ensure this is completed.
3. Ensuring relevant staff are aware of the Council’s duty to either find a suitable school placement or provide education for a child when a parent confirms they no longer wish to Electively Home Educate their child.
4. Show how it intends to address delays with Education, Health and Care Plan annual reviews and production of Education, Health and Care Plans within the statutory timescales.
5. Ensuring relevant staff are aware of the statutory requirement and timescales in issuing notification letters following a child’s annual review meeting including providing information about a person’s right of appeal to the SEND Tribunal.
75. The Council should provide us with evidence it has complied with the above actions.

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Decision

76. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman