Summary: The Council was at fault when it failed to ensure Mrs X’s child Y received a suitable education and for not responding to her complaint. The Council has agreed to apologise, make a payment and ensure staff are aware of and follow the Council’s complaints procedure

The complaint

1. Mrs X complains the Council failed to provide her child X with a suitable education between October 2024 and July 2025 and failed to respond to her complaint about this. As a result Y has missed out on education and this has caused her distress and frustration.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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). 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.
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 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 the final decision with Ofsted.

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What I have and have not investigated

6. Mrs X’s complaint follows on from a previous complaint we investigated and closed in April 2025. The previous complaint found the Council at fault. It considered events up until October 2024 when the Council sent Mrs X its complaint response. It set out that ‘If Mrs X does decide to complain about the lack of suitable education for Y from October 2024, and she is unhappy with the Council’s response to her complaint, she will have the opportunity to bring this new complaint to the Ombudsman’. I cannot investigate matters we have already considered. I have therefore considered what happened from October 2024 onwards.

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How I considered this complaint

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

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What I found

Relevant law and guidance

Special Educational needs

9. 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.
10. 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 
11. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
12. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. The council must review any EHC Plan at least annually. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended Plan is issued.

Elective Home education (EHE)

14. Parents have a right to educate their children at home (Section 7, Education Act 1996). This right applies equally where a child has special educational needs (SEN). 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.
15. 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.
16. Even if the parent is making suitable alternative arrangements by the provision of home education the council is still obliged to conduct an annual review of the EHC plan, and that should provide an opportunity for parents to seek additional support or discuss alternatives to home education.

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. 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)

The Council’s complaints policy

19. The Council operates a two stage complaints procedure. Stage one sets out that complainants will receive a response within 10 working days. Those dissatisfied at stage one can progress to stage two. This will be acknowledged within five working days and responded to within 20 working days. This may be extended if agreed.

Background

20. Y has an EHC Plan and previously attended a special school. In 2022 Mrs X decided to electively home educate.
21. In November 2023 Mrs X told the Council she could no longer electively home educate and requested a specialist setting from September 2024.
22. The Council consulted schools during 2024 but was unable to find a school place for Y.
23. In June 2024 the Council offered Mrs X online tuition for Y. Mrs X refused this as Y could not learn on-line without adult support.

What happened

24. The Council arranged an annual review in November 2024. The form noted in section 1 (completed before the review) that Mrs X was electively home educating. In section 2 it noted schools were being consulted for a September 2025 start. There were no other comments noted.
25. In January 2025 an Educational Psychologist completed an assessment of Y.
26. In February 2025 the Council issued a new EHC Plan for Y. In section I it named EHE at present and noted settings were being consulted for a September 2025 start.
27. Our previous investigation completed in April 2025 found the Council at fault for not arranging alternative provision for Y whilst it sought a special a school place. The Council agreed to make a payment to Mrs X to remedy the injustice this caused and to review Y’s EHC Plan, ‘ensuring that all provision in Y’s EHC Plan is being met and for the Council to take necessary steps to satisfy itself that Y is receiving a suitable education’.
28. In May 2025 Mrs X complained to the Council that from October 2024 onwards the Council failed to provide Y with a suitable school. She said the previous Ombudsman investigation considered what happened until October 2024 but no place was provided and Y was still not receiving any alternative provision.
29. The Council responded in May 2025 and said her concerns were already addressed by the recommendations of the previous Ombudsman investigation. It said it had since carried out an educational psychologist assessment and was looking to arrange provision for the remainder of the summer term until Y started at the special school in September 2025. Mrs X responded that the previous investigation made it clear it considered what happened up to October 2024. She sought a remedy for missed education from October 2024 to the present. The Council did not respond.
30. The Council’s elective home education team contacted Mrs X in May 2025. Mrs X responded that she had not home educated Y for over two years and the SEN department were aware of this. She believed following the previous Ombudsman investigation that Y would receive alternative provision but this had not happened.
31. In June 2025 the Council contacted Mrs X to arrange an annual review to ensure the EHC Plan was accurate for transition discussions with the special school. It held an annual review in August 2025 and issued a final EHC Plan later that month. Y started at a special school in September 2025.
32. In response to my enquiries the Council said it understood Mrs X’s May 2025 complaint related to the same issues previously investigated ‘and the relevant time period had not been clearly distinguished in this instance’.

Previous Ombudsman investigations

33. Following other complaints we have investigated about this Council it has agreed to take action to ensure relevant staff are aware of the Council’s responsibilities under section 19 of the Education Act. It also agreed to ensure it provides clear and documented reasons in deciding what education is suitable for a child receiving alternative provision. I have therefore not considered it necessary to make similar service improvements on this case. We will however continue to monitor its performance through our case work.

Findings

34. The annual review in November 2024 lacked any form of detail. There is no evidence Mrs X actively agreed to continue to home educate Y and the evidence shows Mrs X wanted Y to attend a school. The Council therefore became responsible again for Y’s EHC Plan and so it should have taken action to ensure Y was receiving the education set out in the Plan. Its failure to do so was fault.
35. The Council was aware Mrs X was no longer willing to home educate Y. I have seen no evidence the Council properly considered this or took any action to establish exactly what education and support Y was receiving, if any. The failure to properly consider the section 19 duty and to ensure Y received an available and accessible education is fault. The Council offered online tuition in June 2024 which Mrs X refused as unsuitable and I have seen no evidence the Council properly considered what alternative provision was suitable for Y.
36. The February 2025 Plan named a special school from September 2025 but continued to state Mrs X was elective home educating Y. This was no longer the case as Miss X had said she no longer wished to educate Y at home. By referring to elective home education the Council left Y with an EHC Plan which no longer reflected reality. While Mrs X had a right of appeal to the Tribunal over the Council’s decision to name elective home education, I consider it was not reasonable for her to have done so. She had already complained to the Ombudsman about the lack of provision for Y and had told the elective home education team she was not home educating Y. The Council failed to clarify the situation. This is fault and caused Miss X a period of uncertainty and frustration.
37. As a result, Y received no education from October 2024 to September 2025 which is around two and a half school terms.
38. The Council failed to respond to Mrs X’s complaint. She very clearly set out the period about which she was complaining and referenced the Ombudsman’s previous decision which also explained Mrs X’s right to complain to the Council and then to us. This was fault which caused Mrs X additional frustration.

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Agreed Action

39. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X and pay her £3750 to acknowledge Y’s missed provision. It will also pay her an additional £200 to acknowledge the frustration she was put to by its failure to properly consider and respond to her complaint
2. Through training or staff briefing, ensure staff in the SEND Department are familiar with the Council’s corporate complaints policy to ensure they respond to complaints appropriately.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman