Summary: Ms X complained the Council failed to provide an education and special educational provision for her child when she deregistered them from the school roll. She also complained about delays reviewing an education, health and care plan. Ms X said this caused unnecessary distress and frustration, and her child missed out on education. We find the Council at fault, and this caused injustice. The Council has agreed to apologise, make a payment to Ms X, and improve its service.

The complaint

1. The complainant, who I refer to here as Ms X, complained about the way the Council handled her child’s special educational needs and education. Specifically, she complained that the Council:
1. failed to provide alternative education for her child when they were unable to attend school;
2. failed to provide the provision set out in her child’s education, health and care plan;
3. failed to complete an annual review of her child’s education, health and care plan within statutory timeframes; and,
4. said her child was being electively home educated when this was not her choice.
2. Ms X said this caused unnecessary distress and frustration. She said it had a physical and mental impact on her child, and they missed out on education. Ms X also said it had a financial impact as she paid for her child’s education when the Council failed to provide it, and she gave up work to stay at home with her child.

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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(i), 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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How I considered this complaint

7. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Alternative educational provision

9. 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.
10. This does not apply if a parent has deregistered their child and taken them off the school roll.

Elective home education

11. Parents have a right to educate their children at home (Section 7, Education Act 1996). Elective home education is different 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, parents take on financial responsibility for any costs involved, including examination costs.

Education, health and care plan provision

12. Councils have a duty to make sure the child gets the special educational provision set out in an education, health and care (EHC) plan. (Children and Families Act 2014, section 42)
13. This does not apply if a parent has deregistered their child and taken them off the school roll.

Education, health and care plan reviews

14. The council must arrange for an EHC plan to be reviewed at least once a year to make sure it is up to date.
15. 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. To amend an EHC plan, the council must send the parent a notice detailing the proposed amendments (often called an amendment notice) within four weeks of the review meeting.
16. If, at a review, it is decided the EHC plan needs to be amended, the council should start the process of amending the plan without delay. It must then issue the amended EHC plan as quickly as possible, and within eight weeks of the amendment notice.

What happened

17. Ms X’s child, B, has an education, health and care (EHC) plan. In September 2022, B started attending a new school. Ms X told the Council B was not coping. The Council discussed alternatives to mainstream education with Ms X. Ms X then deregistered B from the school, taking him off the school’s roll.
18. The Council held an emergency review of B’s EHC plan in December.
19. In January 2023, Ms X complained. The Council asked Ms X for medical evidence about B. It said it would not arrange an ‘education other than at school’ (EOTAS) package for B.
20. The Council had a meeting with Ms X. Ms X told the Council that the GP said B was medically unfit to attend mainstream education. The Council said it would get a formal report from the GP.
21. The Council told Ms X that although B was technically being home educated, it agreed under exceptional circumstances to temporarily fund an alternative package of education under its section 19 duties while it gathered medical information. The Council said this was not an EOTAS package, but a package of support while it continued its investigations.
22. The Council got confirmation from B’s GP that an education away from a school environment was in B’s best interests.
23. In March, the Council agreed to an EOTAS package for B.
24. The Council replied to Ms X’s complaint. It said the financial responsibility for funding B’s education from October was Ms X’s responsibility because she deregistered B from school. The Council accepted there had been a delay issuing the EHC plan after the review. It apologised for the distress this caused.
25. In May, the Council issued the final EHC plan.
26. In July, the Council sent Ms X its stage two response to her complaint. It said it was Ms X’s choice to deregister B from school, whether she believed she had a choice or not. And this meant Ms X took responsibility for B’s education. The Council said Ms X had acted before all the other options had been fully considered.
27. The Council said the most appropriate course of action would have been to keep B on the school roll while pursuing support for B under the Council’s section 19 duties.
28. The Council said it had taken an exceptional decision to support B through its section 19 powers while it got medical evidence that showed B could not attend mainstream education.
29. The Council said that deregistering B had impacted its ability to address any failings with the provision of B’s EHC plan. This also changed the responsibility for providing the provision.
30. The Council said it “proactively advises parents not to deregister children and young people from a school register before securing agreement with [its special educational needs] service that EOTAS is the appropriate education programme [for] the individual young person or child.”

Analysis

Alternative educational provision

31. Ms X complained that the Council failed to provide alternative education for her child, B, when they were unable to attend school (part a of the complaint).
32. Ms X said she deregistered B to safeguard them because the mainstream school was affecting their mental and physical health, and the school was not delivering the education, health and care (EHC) plan provision. Ms X said the Council did not tell her that she would effectively be choosing to home educate B if she deregistered them.
33. The Council said it tell parents the consequences of deregistering their child (that it will be the parent’s responsibility to provide the education). But it accepts there is no evidence to show it told Ms X about the consequences. The Council said there is information on its website about the consequences of de-registering a child from school. I agree, but this does not change my findings, given that the Council said it tells parents of those consequences.
34. The Council said Ms X already made her decision to de-register B and informed the Council of that decision without the opportunity for discussion. I accept this was the case. However, once Ms X made her decision, the Council could have told Ms X of the consequences and she could have had an opportunity to change her mind.
35. As I have said above, 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.
36. Without evidence, I cannot find that the Council told Ms X that if she deregistered B, she would effectively be responsible for home educating them. I have also taken account of Ms X's testimony that she did not receive this information. On balance, therefore, it appears it is unlikely the Council informed her. This is fault. This fault caused Ms X injustice in that it caused her unnecessary distress.
37. I note that Ms X said the Council has made a payment to her for the education she provided B.

Education, health and care plan provision

38. Ms X complained that the Council failed to provide the provision set out in B’s education, health and care (EHC) plan (part b of the complaint).
39. As I have said above, if a parent deregisters their child from a school roll, the council does not have a duty to ensure the provision set out in a child’s EHC plan is provided.
40. Ms X deregistered B from the school roll. I therefore do not find the Council at fault.

Education, health and care plan review

41. Ms X complained that the Council failed to complete an annual review of B’s education, health and care (EHC) plan within statutory timeframes (part c of the complaint).
42. There was a review of B’s EHC plan in December 2022. The Council sent the amendment notice within four weeks of the review meeting. So there is no fault here.
43. However, the Council should have issued the final EHC plan in mid-March. It issued the final EHC plan in May, two months late. This is fault. I find this fault caused Ms X injustice in that it denied her a right to appeal the EHC plan.
44. The Council apologised for this in its complaint response. I find the apology is a suitable and appropriate remedy for the level of injustice caused by this fault.

Elective home education

45. Ms X complained that the Council said her child was being electively home educated when this was not her choice (part d of the complaint).
46. The Council was factually accurate when it said that by deregistering B, Ms X had effectively chosen to electively home educate B. So I do not find the Council at fault here.
47. However, as I have found above, there is no evidence that the Council told Ms X of the consequences of deregistering B. I have therefore found the Council at fault.

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Agreed action

48. Within four weeks of this decision, the Council has agreed to apologise to Ms X in writing for the unnecessary distress caused by failing to inform her of the consequences if she chose to deregister her child from the school roll.
49. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
50. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £200 to remedy the unnecessary distress caused by failing to tell her of the consequences of deregistering her child from the school roll.
51. In arriving at this figure, I have considered our guidance on remedies which sets out a maximum payment of £500 to remedy distress. I have taken into account the severity of the injustice and the length of time involved. I consider a payment of £200 is appropriate and proportionate to the level of injustice caused.
52. Within three months of this decision, the Council has agreed to review its practice to make sure there is a written record of the Council telling parents of the consequences of deregistering their child from the school roll. The Council should get parents to sign this to prove the Council has explained this.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I uphold Ms X’s complaint because I find fault causing injustice. The Council will apologise, make a payment to Ms X, and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman