Summary: Miss X complained about the Council’s actions when her child stopped attending school in January 2025. We have not investigated Miss X’s complaint regarding the Council’s failure to consider its section 19 duties or its failure to secure the special education provision, this is because these matters are premature. We found no fault in the way the Council reached its decision to refuse the elective home education (EHE) request. However, we found fault in delays considering the EHE request, delays and errors in the complaint process, failures to properly oversee and complete the annual review process within statutory timescales, and delays issuing the final amended EHC Plan, which caused Miss X avoidable distress, uncertainty, frustration, time and trouble, and delayed her right of appeal to the Tribunal. We recommend the Council apologises, makes a payment to Miss X, and takes action to improve its services.

The complaint

1. Miss X complained about the Council’s actions following her child, Y, ceasing to attend school in January 2025. In particular, she stated that the Council:
1. Failed to consider its duties under section 19;
2. Failed to ensure Y received the special educational provision specified in their EHC Plan while out of school;
3. Delayed consideration of her request to electively home educate (EHE) Y;
4. Refused her request to electively home educate Y;
5. Incorrectly informed her that a final amended EHC Plan had been issued, thereby providing her with appeal rights; and
6. Delayed issuing a final amended EHC Plan following the annual review.
2. Miss X says these actions caused her significant stress and negatively affected her mental wellbeing. She also says the delays and uncertainty surrounding her EHE request, together with the lack of provision, resulted in Y missing out on special educational support.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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

7. 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)
8. Miss X did not complain to the Council that it had failed to consider its duties under section 19 of the Education Act 1996, or that it had failed to secure the special educational provision specified in Y’s EHC Plan while Y was out of school. As the Council has not had an opportunity to investigate and respond to these matters, I have not investigated parts a) or b) of the complaint.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss 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 legislation and guidance

EHC Plan 

11. 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. 

Content of an EHC Plan

12. 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.

Maintaining the EHC Plan

13. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Reviewing EHC Plans

14. 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 council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. 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. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain 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) 
15. 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.

Appeal rights

16. 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; and
• decision not to amend an EHC Plan following a review or reassessment.

Elective Home Education

17. 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.
18. Where a child attends a special school under arrangements made by the local authority, the child’s name cannot be removed from the school roll for elective home education without the local authority’s consent.
19. Government guidance says this process should not be lengthy or unnecessarily complex, and councils should not unreasonably withhold consent. In deciding whether to agree to elective home education, the council should consider whether the proposed home education would be suitable to meet the child’s special educational needs and secure the provision set out in the EHC Plan. (Elective Home Education guidance for local authorities, paragraph 8.6)

Section 19 duty

20. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

What happened

21. Y is a child with special educational needs and an Education, Health and Care (EHC) Plan.
22. In September 2024, Y started attending a specialist school named in the EHC Plan.
23. By November 2024, the school introduced a part-time timetable in an attempt to support Y’s attendance.
24. In January 2025, Miss X asked the Council for consent to electively home educate (EHE) Y.
25. The Council sought further information about the proposed home education arrangements before considering the request. In April 2025, the Council decided not to agree to the request. It offered to meet with Miss X and the school to discuss the decision further, but Miss X declined the meeting.
26. Miss X complained to the Council about the delay in deciding the EHE request, the lack of reasons for refusing it, and delays relating to Y’s annual review.
27. In June, the Council issued its complaint response. It accepted there had been some delay in progressing the EHE request. Although there are no statutory timescales for deciding EHE requests, the Council said it would ordinarily expect to decide within eight weeks and acknowledged it had taken around ten weeks in this case. It apologised for the delay. The Council explained it had considered information from Miss X, the school, safeguarding concerns, health advice, and Y’s best interests before reaching its decision. It also explained that Y’s EHC Plan continued to name the specialist school and advised Miss X of her appeal rights. The Council further explained that responsibility for arranging annual review meetings had been delegated to the school. It acknowledged the annual review was due by the end of April 2025 but said it had not received information confirming whether the review had been arranged. It advised Miss X to liaise with the school directly.
28. Later that month, Y stopped attending school because of severe anxiety, stress, and chronic pain. Around the same time, Miss X contacted the school to arrange the annual review.
29. The Council then issued what it described as a final amended EHC Plan, despite no annual review having taken place and no amendments having been made to the Plan.
30. Y’s annual review meeting eventually took place at the end of June 2025. The review recorded that Y had not attended school consistently since November 2024 and recommended amendments to the EHC Plan.
31. In July, Miss X escalated her complaint because the Council had still not finalised its position regarding EHE and because the annual review process remained delayed.
32. In September, the Council issued a draft amended EHC Plan.
33. Later that month, the Council issued its final complaint response. It acknowledged delays in completing the annual review process and issuing the draft amended Plan. It apologised and explained the service was implementing improvements, including recruiting additional staff to improve timescales. The Council also confirmed it was finalising a further decision regarding the EHE request as part of the annual review. It offered Miss X £250 to recognise the time and trouble caused by delays relating to the annual review and EHE request, together with a further £100 for delays at stage two of the complaint process.
34. The Council subsequently refused the EHE request. It explained that the proposed home education arrangements did not demonstrate how all of the provision specified in section F of Y’s EHC Plan would be delivered, including specialist teaching, therapeutic input, and structured educational outcomes. It said it would reconsider the request if further evidence was provided.
35. In October, Miss X brought her complaint to the Ombudsman.
36. In November, the Council issued Y’s final amended EHC Plan. Miss X has since appealed sections B, F, and I of the Plan to the Tribunal and says Y is unable to attend any school setting.

My findings

Delayed consideration of the request to electively home educate Y

37. The Council has already acknowledged there was delay in reaching a decision on Miss X’s EHE request. Although there are no statutory timescales for determining such requests, the Council said it would ordinarily expect to make decisions within eight weeks. In this case, it took around ten weeks. This delay was fault.
38. The Council apologised and included this fault within its proposed remedy payment of £250. Given the relatively short delay and the circumstances of the case, I consider £50 to be an appropriate remedy for the injustice caused. I therefore make no further recommendation on this point.

Refusal of the request to electively home educate Y

39. It is not the Ombudsman’s role to act as an appeal body or to substitute our judgment for that of the Council simply because a complainant disagrees with the outcome reached.
40. I have considered whether the Council followed a proper decision-making process when considering Miss X’s request. The evidence shows the Council considered the information provided by Miss X, sought views from relevant professionals and the school, considered whether the proposed arrangements would meet Y’s identified needs, and reached its decision through the appropriate panel process.
41. The Council also offered to meet with Miss X to discuss the decision further and later provided a detailed written explanation setting out why it considered the proposed arrangements would not secure the provision specified in section F of Y’s EHC Plan. I therefore find no fault in the way the Council reached its decision.

Complaint handling and incorrect information regarding the EHC Plan

42. There were delays at both stages of the Council’s complaint process. The Council’s policy says it will respond within 10 working days at stage one and 20 working days at stage two. In this case, the Council took 24 working days at stage one and 61 working days at stage two. This was fault. These delays caused Miss X avoidable frustration, uncertainty, and time and trouble in pursuing her complaint.
43. I also identified errors within the Council’s complaint responses. At stage one, the Council incorrectly stated that a final amended EHC Plan had already been issued, when this had not happened. The Council then advised Miss X to arrange the annual review directly with the school, despite the Council retaining overall responsibility for ensuring annual reviews take place within statutory timescales.
44. In doing so, the Council missed an opportunity to identify that an amended EHC Plan was being progressed without a completed annual review or to take action to ensure the review was arranged promptly. This was fault.
45. The stage two complaint response acknowledged delay at stage two but failed to recognise the earlier stage one delay or the Council’s failure to ensure the annual review process was completed on time. This was also fault.
46. The Council offered Miss X £100 to recognise the delay at stage two of the complaint process. However, given the wider complaint handling faults identified, I do not consider this sufficiently remedies the injustice caused.

Delayed issuing a final amended EHC Plan following the annual review.

47. The Council remained responsible for ensuring Y’s annual review was completed within the required timescales, even where practical arrangements for the meeting had been delegated to the school. The Council failed to maintain sufficient oversight to ensure this happened. This was fault.
48. Y’s annual review should have taken place by the end of April 2025. The review did not take place until the end of June 2025. This was delay of around two months and was fault.
49. Following the annual review, the Council also failed to issue the final amended EHC Plan within the statutory timescales. The Council has accepted this delay.
50. Had the annual review taken place on time and the statutory process been followed correctly, the final amended EHC Plan should have been issued by the end of June 2025. Instead, the Council did not issue the final amended Plan until late November 2025. This was a delay of around five months.
51. This delay caused Miss X avoidable distress and uncertainty and delayed her right of appeal to the Tribunal, which she has since exercised.
52. The Council included this fault within its proposed remedy payment of £250. However, taking account of the full extent of the faults identified and injustice caused, I consider an increased remedy is appropriate.
53. I also note the Council issued what it described as a final amended EHC Plan in June 2025 before an annual review had taken place and without any amendments having been properly considered through the statutory review process. I have seen no explanation for why this occurred. This was fault and caused additional confusion and uncertainty for Miss X.

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Action

54. To remedy the injustice caused by the above faults, within four weeks of my final decision, the Council has agreed to:
• apologise to Miss X in line with our guidance on Making an effective apology; 
• pay Miss X a total of £550 (this is instead of its proposed remedy of £350). This includes:
1. £50 to recognise the distress caused by the delay considering Miss X’s request to electively home educate Y;
2. £200 to recognise the confusion and time and trouble caused by its complaint handling; and
3. £300 to recognise the distress, uncertainty, and frustrated right of appeal due to the delay conducting the annual review and finalising the Education, Health and Care Plan.
• create an action plan which sets out how, in future, it will avoid similar failures to ensure that annual reviews are held on time and finalised within statutory timescales.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. 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