Summary: I have found fault in the annual review process which delayed Ms X’s right of appeal. I have not found fault in the Council’s decision not to provide financial support to Ms X when she was home educating. The Council has agreed to apologise and make a symbolic payment to acknowledge the injustice caused.

The complaint

1. Ms X complains the Council:
• Failed to provide financial support, via direct payments, to meet her child’s special educational needs (SEN) when she was home educating;
• Failed to properly explain its reasoning for not providing financial support;
• Failed to update and properly specify Section F (special educational provision) in her child’s Education, Health and Care (EHC) Plan;
• Failed to secure provision in Section F;
• Failed to explain to her the legal importance of Section F;
• Failed to keep to statutory timescales for reviewing the EHC Plan or keep in contact with her.
2. Ms X told us the situation had been going on for over a year and caused harm to her child’s development and wellbeing and led to her having to incur costs to provide essential provision for her child’s SEN at home.

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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. 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)
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. Local Government Act 1974, section 26(5)
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 Tribunal in this decision statement.
7. 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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How I considered this complaint

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

Relevant law and guidance

Elective home education

11. 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. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
12. 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. 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. Where parents do not provide sufficient evidence, councils can serve a school attendance order, naming a school which the child should attend.

EHC Plans

13. 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. 
14. 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 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

15. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
16. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
17. 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). However, section 42(5) says this does not apply if the child’s parent or the young person has made suitable alternative arrangements, for example by choosing to home educate.
18. Councils have a power, but not a duty, to provide support, for example funding or therapy at home, for children with SEN who are electively home educating. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. If the council decides not to amend an EHC Plan, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
22. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review.

23. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

What happened

24. Ms X had previously home educated her child, who has an EHC Plan, in a different council area. That council had provided Ms X with a personal budget to support the costs of meeting her child’s SEN needs while home educating.
25. Ms X moved to the Council’s area. Her child was attending a mainstream primary. A review meeting was held in Summer 2024.
26. In October 2024 Ms X spoke to the EHC officer by phone about home educating and obtaining a personal budget to support this. The Council notes show it explained the elective home education (EHE) process and explained she would not be able to access funding provided to the school for SEN. The Council suggested meeting with the school to discuss this further and they would send Ms X information about EHE. Ms X also wanted to consider an independent special school, and the Council officer explained the process about changing schools. They also discussed holding a review as Ms X was concerned the Plan was out of date.
27. A review meeting was held in November. The school stated they were meeting needs and did not see problems with Ms X’s child transitioning into school each morning, although Ms X reported her child was masking and dysregulated at home. EHE and the process to change schools was discussed again. The Council agreed to update the EHC Plan. Ms X told the Council she had home educated before and intended to use a tutor.
28. Following this meeting Ms X sent an email stating she wished to home education from January and wanted to apply for ‘the appropriate personal budget’.
29. The next contact appears to have been in January 2025 when Ms X confirmed she wished to withdraw her child from school. Ms X said she planned to home educate until they got a place at another school, perhaps in September 2025. Ms X said she had sent several emails about consulting other schools, but the Council had not responded. Ms X asked what information she needed to provide to evidence suitable home education and again asked about a personal budget.
30. The Council replied that it would send a draft plan by mid-January and a further annual review should be held as she planned to home educate. The request for a personal budget could be discussed at the review. The Council provided information about personal budgets for SEN provision generally and signposted Ms X to social care short breaks.
31. The Council sent the draft Plan in January. The covering letter explained the different sections that made up the EHC Plan. A further review meeting was held in February. The Council invited Ms X to express a preference of school.
32. The request for a personal budget for SEN provision to support home education went to the Council’s panel in Spring 2025. The panel document states this was not agreed as EHE is the responsibility of parents. A right of appeal / review against this decision was provided.
33. In Spring 2025, Ms X asked for the decision to be reviewed. Ms X said she was struggling to provide the necessary educational and developmental support without financial help. Ms X considered the funding that would have been used for a school place and SEN support in school could be reallocated to her. Ms X believed the Council still had a duty to secure SEN provision in the EHC Plan even when she was EHE. Ms X asked the Council how it intended the EHC provision would be met without a personal budget and asked the Council to provide an alternative plan.
34. The Council reviewed the request but said the items Ms X requested were not supported by professional advice or included in Section F of the EHC Plan. Ms X then asked to make amendments to the draft Plan before it was finalised.
35. The Council told us in May 2025 that Ms X had not made a formal complaint, and it would provide a response to the complaint raised with us. The Council replied in July and repeated its previous view about requested provision not being supported by professional advice. It said if Ms X had relevant professional advice, it would reconsider this. It said support for EHE families was discretionary.
36. The Council acknowledged in its complaint response it had not informed Ms X the July 2024 meeting was a formal review, and it had not issued a decision letter after this meeting. It apologised. The Council said a follow up meeting was held in November and a review in February 2025. A draft plan was issued in February and information provided to Ms X to support EHE.
37. Ms X told us the Council ‘tricked’ her into accepting the draft EHC Plan and did not advise her of the legal significance of Section F. Ms X wanted this amended further as she regraded it as deficient.
38. A final amended Plan was issued in October 2025, giving Ms X a right of appeal. The Plan named a different mainstream primary.
39. Ms X told me her child started at the school named in the EHC Plan in September 2025 and she has appealed the Plan to the Tribunal.
40. Ms X told me the Council did not make any checks about the EHE between January and September 2025.

What I have investigated

41. I have investigated from Summer 2024 when an annual review was held until Autumn 2025 when the final EHC Plan was issued providing a right of appeal.
42. I have investigated alleged faults in the EHC review process. However, I have not investigated the content of Section F. Ms X has appealed the content of the Plan to the Tribunal. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter (Local Government Act 1974, section 26(6)(a), as amended)
43. I have investigated alleged lack of support for two terms (January to July 2025) when Ms X was home educating.

Analysis

Fault

44. The Council did fail to follow statutory timescales for decisions after annual review in July 2024 and February 2025. No decision letter was issued after the July 2024 review. The final Plan was due within twelve weeks of the February 2025 review but took six months. This is fault.
45. Ms X’s right of appeal was delayed by over a year, however Ms X only raised concerns about Section F in Summer 2025 and the final Plan allowing her to appeal was issued in early Autumn. There is no evidence Ms X was unhappy with the EHC Plan provision and wished to appeal prior to Summer 2025.
46. I find no fault in the advice the Council gave to Ms X about EHE. Ms X was informed she was taking on financial responsibility for her child’s learning and was sent appropriate information. That another council had a different approach to funding SEN support to home educated pupils did not mean this council’s approach was fault. The law is clear the duty to secure provision in an EHC Plan does not apply when a parent chooses to home educate. Councils have discretion to provide support for the special educational provision a child who is being home educated may need, but there is no obligation for it to do so.
47. The SEN Code of Practice expects councils to consider requests for SEN support at home on a case-by-case basis. I consider the first panel did not give adequate reasons for its decision and suggests the council had a blanket policy to refuse all requests. The second panel did review the decision and decided the provision Ms X was asking for was not provision in Section F of the Plan and not recommended by professionals. The Ombudsman cannot question the judgment the Council reached. (Local Government Act 1974, section 34(3), as amended)
48. Ms X said in response to my draft decision the Council relied on deficiencies in Section F to deny support. It is not for the Ombudsman to take a view whether Section F was or was not deficient, Ms X has now sought a remedy from the Tribunal to amend Section F, this places the matter of the content of the Plan outside our jurisdiction. We cannot speculate about what a Tribunal may decide in future.
49. The Council must satisfy itself that parents who EHE are able to provide suitable education, including for a child’s SEN. There is no evidence the Council did this, although I acknowledge the Council was aware Ms X had home educated before and had told the Council she would use a tutor. No checks were carried out in the two terms Ms X was EHE. Ms X was not asked to explain how she would meet her child’s SEN needs when she expressed concerns in March that she was unable to do so without financial support. This did not mean the Council was at fault in refusing a personal budget, but it does suggest oversight of the EHE was lacking.
50. I have not found the Council misled Ms X as to the importance of Section F. The Council’s letters about EHC plans explained the different sections. There is no expectation the Council explain the legal implications of each section in depth. The Government publishes parent guides about EHC Plans, as well as the SEN Code of Practice, and this information is publicly available.

Injustice

51. The Council has apologised for the EHC Plan delays, which was due to lack of staff capacity, which it is actively seeking to resolve.
52. The Council has not acknowledged these delays meant Ms X did not have an appeal right in 2024 and most of 2025. The delay in finalising the Plan also meant an alternative school place was not offered until September 2025; however, the evidence I have seen indicates Ms X always expected it to take until September 2025 to find a school she was happy with.
53. As I have not found fault in the Council’s decision to decline a personal budget there is no basis for me to recommend a financial payment for missed Section F provision or reimbursement of private tuition Ms X arranged.

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Agreed Action

54. Within four weeks of my final decision, the Council will apologise to Ms X for the additional fault identified in this decision statement.
55. Within four weeks of my final decision, the Council will make a symbolic payment of £300 to acknowledge the injustice caused by the delays in the annual review process, updating of the EHC Plan and appeal rights.
56. The Council will provide us with evidence it has complied with the above actions.

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Decision

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