Summary: Ms X complained the Council did not complete an Education, Health and Care needs assessment for her daughter within statutory timeframes. She also said it did not provide alternative provision to her daughter when she stopped attending school. We did not find the Council at fault for the time taken with the assessment. We found fault for some of its actions and not properly evidencing decisions made on its alternative provision duty, causing some uncertainty. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Ms X complains the Council delayed issuing her daughter’s Education, Health and Care (“EHC”) Plan, named mainstream education in Section I of the EHC Plan, and failed to provide alternative provision for her daughter (“J”) who had been out of school for over a year. She says this has affected them financially, caused significant frustration and stress for the family, and negatively impacted on J’s education and welfare.

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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 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
5. This means that if a child 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.
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
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)
8. 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

9. Ms X complained about a lack of alternative provision for J since October 2023. This is further back than 12 months before coming to us (see Paragraph 3) and is therefore late. I am satisfied Ms X could have complained specifically about this earlier period sooner.
10. I have investigated this part of the complaint from January 2024 (12 months prior to her complaint to us) to May 2024 (when the Council issued a final EHC Plan to which Ms X then had access to appeal rights – see Paragraph 6). I have referred to some events before and after this for relevant background and context.

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How I considered this complaint

11. I discussed the complaint with Ms X and considered her views.
12. I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care Plans

14. 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. 
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent information about their right to appeal to the Tribunal.

16. If full agreement is reached after mediation, in accordance with Regulations 42 and 44, the Council must follow certain deadlines. If it agrees to carry out an assessment and then decides to issue an EHC Plan, it must send a final EHC Plan within 14 weeks of the mediation agreement.
17. Councils must give the child’s parent 15 days to comment on a draft EHC Plan and express a preference for an educational placement. The council must consult with the parent’s preferred educational placement who must respond within 15 calendar days.

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of education 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 provision.
19. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R on the application of D (by his mother and litigation friend)) v A local authority [2020])

Background

20. J initially attended School A. In October 2023, Ms X accepted a place for J at School B, and J was removed from School A’s roll.
21. J stopped attending School B after a few days due to school-based anxiety. Ms X made another application for School A. It could not offer a place. Ms X appealed and later withdrew this due to the Education, Health and Care (“EHC”) needs assessment process.
22. In October 2023, Ms X emailed the Council requesting temporary home tuition for J, as she was not at school. A place for J remained available at School B. Ms X declined this and informed School B that J would not return.
23. Between November 2023 and December 2023, the Council had contact with Ms X. After discussing professionals involved, outstanding referrals, and evidence reviewed, it said J did not meet the usual threshold for tuition on medical grounds, but it would send it to the medical panel as an exceptional case. Ms X had been paying for a private tutor for J.

What happened – summary of key relevant events

Education, Health and Care needs assessment

24. In November 2023, Ms X submitted an EHC needs assessment request to the Council. Five weeks later, the Council sent Ms X a decision letter stating it would not assess. Ms X disagreed and sought mediation.
25. In February 2024, after mediation, the Council sent a letter to Ms X confirming it overturned its decision and would assess J. The letter outlined the timescales it would have to meet.
26. At the start of May 2024, the Council issued a draft EHC Plan. It said Ms X could request schools to be named in it. At the end of May 2024, the Council issued a final EHC Plan. It did not name a setting and recorded “mainstream” provision as the type of education. Ms X later appealed the EHC Plan.

J not attending school

27. In January 2024, the Council said to Ms X it would fund half a term of tuition as a special case to reintegrate J back into an educational setting and asked Ms X what school it should be.
28. Ms X had concerns about agreeing to this and around J returning to school. She wanted Education Otherwise Than At School (“EOTAS”). She believed it was the school environment impacting on J. She did not want to electively home educate J either. Ms X did not follow up on the tuition offer.
29. In March 2024, a Council Educational Welfare Officer contacted Ms X. Ms X said J had a place at School B but it was not offering support or interventions. In April 2024, Ms X emailed the Council to formally request alternative provision for J. During these months, the Council and School B were in contact to clarify the situation about J’s place.

Ms X’s complaint

30. In August 2024, Ms X made a formal complaint. She said the Council did not meet statutory timeframes with the EHC needs assessment. She also said the Council had not provided alternative provision or education to J who had been out of school since October 2023. Ms X had been privately funding part time education for J.
31. The Council responded at Stage One. It was satisfied it had dealt with her EHC needs assessment within required timeframes. With J’s education, it said its Education Welfare Service (“EWS”) was aware of her case and noted Ms X did not progress with home tuition it offered. A place remained for J at School B which Ms X did not take up. It did not enforce attendance as it believed Ms X had taken responsibility for providing an education to J with the private tutor. It noted it did not clarify this with the family.
32. With naming a setting for the EHC Plan, the Council said it should have discussed and clarified school consultation responses sooner. It apologised for the uncertainty caused and offered £300 to recognise this. Ms X did not accept and escalated her complaint. The Council’s Stage Two response maintained its previous findings. In January 2025, Ms X complained to us.
33. In March 2025, J started attending School C. In June 2025, Ms X withdrew her appeal.

The Council’s response to my enquiries

34. In response to my enquiries, the Council said it remained of the view the £300 remedy from its complaint investigation was still relevant and appropriate.
35. The Council said as part of learning lessons, it recognised it needed a clear working partnership between the EWS and SEND team where there were attendance concerns. The Council said it set up a working group in March 2025 to ensure a more joined up response and robust processes are in place. The group would consider case studies, and it was in the process of developing an action plan to address any issues in practice found.

Analysis

EHC needs assessment

36. The Council had to decide whether to assess J within six weeks of the request. It said it would not assess within five weeks. After it reached an agreement with Ms X at mediation, it needed to issue the final EHC Plan within 14 weeks. The Council sent it by 13 weeks. It acted within statutory timeframes. I do not find the Council at fault.
37. The Council said it was at fault with late or delayed consideration of school consultation responses. It offered a remedy of £300 to recognise the uncertainty caused. This is connected to the EHC needs assessment process, specifically around the naming of a setting, which was part of Ms X’s appeal. This is outside our jurisdiction to consider (see Paragraphs 4 to 6). Therefore, I cannot comment or make a specific finding on this. It is open to Ms X to accept the Council’s offer on this part should she wish.

Education and alternative provision

38. I am considering from January 2024 (see Paragraph 10). At this point, the Council offered temporary tuition for J after considering her case at medical panel. This was to offer transition support, and it expected her to move back towards an education setting. This was a positive offer. I do not criticise the Council for this. While Ms X had her reasons, it was her choice not to move forward with it.
39. I have not seen notes of how the panel came to this decision but in my view, the Council appeared to take some responsibility towards J’s education with this offer. It appropriately made suggestions to Ms X about other possible support which she was unsure of. But there is also no record of whether it was satisfied with this offer and why or if it considered if it had a duty to source any alternatives to further support J’s education.
40. It also noted Ms X’s hesitancy with accepting its tuition, but I cannot see it told her if there were consequences of declining this and on what grounds. This would have been good practice, so Ms X could be better informed.
41. A month went by where it appeared no action was taken on this part by either party. Then in March 2024, the Council records showed the EWS tried to contact Ms X a few times over some weeks. When it managed to get in touch, Ms X gave an update on the assessment process. It was at this point the Council contacted School B. However, given J had been out of school for a number of months, I consider the Council should have made proactive enquiries with School B much sooner to gather relevant information to consider.
42. During the period I am looking at, it is not clear if or how the Council considered whether its section 19 duty was triggered. But given some of its actions regarding the medical evidence and other responses, it appears it was later satisfied J’s education needs could be met in a school, and it was satisfied the place at School B was accessible and suitable, so it did not have a duty. While it was entitled to this view after considering relevant evidence, it should have recorded this as a decision and informed Ms X at the time. I cannot see it did this. This is fault. I also appreciate the EHC needs assessment process was ongoing throughout this, but this is a separate process.
43. There is also a lack of clarity as the Council also said it was of the belief Ms X had taken responsibility for J’s education with the private tutor and so it did not enforce attendance. But if this was the case, it should have reviewed the provision and clearly decided if it was suitable and recorded this. In any event, the Council acknowledged it did not clarify this understanding with Ms X. This is fault, causing Ms X frustration.
44. Overall, on balance, in my view there were some shortcomings with the Council’s considerations of alternative provision, its explanations and lack of recording its reasons. I cannot say it is likely to have changed the outcome, but this caused frustration and uncertainty at the time for Ms X. The Council has also recognised it needs to strengthen its practices around attendance concerns. I welcome it has taken some positive action to address this.
45. Ms X appealed against the May 2024 final EHC Plan. This is the correct way to challenge decisions the Council makes about the content of EHC Plans. As explained in Paragraphs 4 to 6, I cannot investigate any concerns about education or alternative provision from May 2024 onwards as it is falls outside of our jurisdiction.

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Action

46. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
47. Within one month of the final decision:
• Apologise to Ms X for the injustice caused by the faults identified (in line with our guidance on making an effective apology) and pay Ms X a symbolic payment of £150 to recognise her uncertainty and frustration during the period considered.
48. Within three months of the final decision:
• The Council should share a copy of the action plan it has developed to address issues found to ensure a more joined up response within internal departments when it comes to school attendance concerns.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I did not find fault with the EHC needs assessment process. I found fault causing injustice relating to the Council’s consideration of alternative provision. The Council has agreed to my recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman