Summary: Mr X complained about the Council’s failure to provide his daughter, Y, with a suitable education, support for her special educational needs and its complaint handling. We found the Council to be at fault because it refused to consider his complaint. This caused distress and uncertainty to Mr X. To remedy this injustice, the Council has agreed to apologise. We did not find fault with the Council’s approach to Y’s education at home for the limited period of time we were able to investigate.

The complaint

1. Mr X complains about the Council’s failure to provide a suitable school and special educational needs (SEN) support for his daughter, Y, when she was unable to attend school from March 2024. Specifically, he complains the Council:
1. failed to provide alternative provision. Mr X says he had no choice but to educate Y at home. He says he was forced to do so because the Council failed to ensure a suitable school was provided; and
2. failed to properly consider his complaint.
2. Mr X says this has caused significant distress, and affected the well-being of Y and the wider family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
6. 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.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
9. 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)

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What I have and have not investigated

10. I have investigated what happened between March and August 2024. March 2024 is when Y stopped attending school and was educated at home.
11. I have not investigated what happened since the Council issued the final EHC Plan in August 2024 and he was notified of his right to appeal to the SEND Tribunal. Mr X lodged an appeal with the SEND Tribunal in October 2024. This is for the reasons set out at paragraphs 20 to 22 below.
12. I have referred to events outside of this time period for contextual reasons only.

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How I considered this complaint

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

Legal and administrative background

Education Health and Care Plans

15. A child with special educational needs may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include:

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Alternative provision

17. 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.

Elective home education

18. 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.

Failure to secure provision

19. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

SEND Tribunal and appeal rights

20. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.
21. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the SEND Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)
22. 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.

The Council’s complaints procedure and policy

23. The Council has a two stage complaints procedure. Its policy describes a complaint, “an expression of dissatisfaction about the Council’s action or lack of action or about standard of service”.

What happened

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
25. Y is of secondary school age with SEN and several health conditions. Since September 2022, she attended School D. Mr X says Y struggled in a larger school environment and that School D was unable to meet her needs within its available resources. This impacted on Y’s attendance and overall well-being.
26. In June 2023, Mr X made a request for an EHC assessment. Y did not have a specific SEN diagnosis at this time, but Mr X believed she had a learning disability that has since been confirmed.
27. In November 2023, she was put on a reduced timetable by School D.
28. The Council confirmed an EHC Plan was necessary and issued a draft EHC Plan in January 2024. Around this time, School D confirmed it was unable to meet Y’s needs. The Council consulted with six other schools between February and May 2024 in an attempt to secure a place for Y. All said they were unable to meet Y’s needs, mainly because she had health issues and did not yet have an SEN diagnosis.
29. Y stopped attending School D in March 2024. Mr X advised School D he had decided to educate Y at home whilst another school place was found. He also told the Council he was waiting for a formal diagnosis from Y’s paediatrician because this would properly inform what support should be provided in Section F of Y’s EHC Plan.
30. In August 2024, the Council issued a final EHC Plan. This did not specify a specific school, because both Mr X and the Council were still awaiting the diagnosis from the paediatrician. Mr X believed the EHC Plan to be inadequate and so lodged an appeal with the SEND Tribunal in October 2024. The Council agreed to provide education other than at school (EOTAS) in October 2025. Mr X says he is satisfied with this eventual outcome but says it should not have taken so long to find a solution.
31. Mr X says Y’s mental health was severely affected by being out of formal education. She suffered with severe depression and anxiety. Mr X says he was only able to offer basic tuition, and this was insufficient to meet Y’s complex needs over such a prolonged period of time.

Mr X’s complaint

32. Mr X complained to the Council in April 2025, after Y had been out of school for a year. He explained the EHC Plan was inadequate because essential information was lacking and this negatively influenced the consultation outcomes. He also explained he had to remove Y from School D because it was unable to meet the needs of her learning disability.
33. In response, the Council explained there were no grounds for a complaint. This was because it did not have a duty to provide Y with an education because she was being home educated. This position was echoed in the Council’s response to the Ombudsman’s enquiries.

Analysis

Failure to provide an education and SEN support

34. For the jurisdictional reasons I have explained above, I am only able to consider what happened between March and August 2024. Mr X says the Council failed to provide Y with a suitable education in line with its duties under section 19 when she was no longer able to attend School D for reasons connected to her SEN. The Council says Mr X chose to education Y at home and so its section 19 duty was not triggered.
35. From the case records I have seen, I am satisfied, on balance, that the Council was not at fault. This is because, when Y left School D, Mr X sent an email to the headteacher stating he would be homeschooling her until such time as her EHC Plan was finalised and she was able move to a more suitable learning environment. He also told the Council’s home education officer in October 2024 that he chose to home educate Y as a short-term intervention to support Y’s health and well-being.
36. There was no duty on the Council to provide additional support for Y’s SEN be she did not have an EHC Plan for the time period I have investigated.
37. I acknowledge Mr X is of the strong opinion his decision to home educate was not made through choice, but in the absence of any contemporaneous evidence to support this view, I am unable criticise the Council’s position.

Complaint handling

38. Councils should have clear complaint procedures and follow them. Where there is a two-stage process, we expect councils to carry out a fair review at each stage, consider any new issues raised, and, where fault is identified, consider whether to offer an appropriate remedy.
39. When Mr X raised a formal complaint in April 2025, he was told there were no grounds for a complaint to be made because Mr X was home educating Y. He was told to seek advice from the Ombudsman if he was unhappy with this decision
40. In my view this was not an adequate response and failed to address Mr X’s complaints about:

• Y being out of school because School D was unable to meet her needs; and
• the content of the EHC Plan.

41. Both matters required a response by the Council, even if it was to refer to ongoing SEND Tribunal proceedings and its view on provision at School D. In my view, there was no justification for the Council’s refusal to consider his complaint.
42. This position also meant Mr X was denied his right to escalate the matter to stage two of the complaints procedure.
43. I cannot say the outcome would have been different had the Council acted correctly, but I am satisfied its poor complaint handling caused Mr X frustration and uncertainty and had to spend further time and trouble bringing his complaint to the Ombudsman. This injustice requires a remedy.

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Agreed action

44. The Council has agreed to take the following action within four weeks from the date of my final decision:

• Apologise in writing to Mr X.

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

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Final decision

46. I find fault causing injustice. The Council has agreed to action a recommendation to the remedy injustice to Mr X. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman