Summary: Mrs X complained about the Council’s delays during the Education, Health and Care needs assessment process for her son. She also complained the Council failed to provide her son with suitable alternative provision. We find the Council was at fault for its delay in issuing Mrs X’s son’s Education, Health and Care Plan. It was also at fault for how it handled Mrs X’s son’s alternative provision. These faults caused Mrs X frustration and uncertainty, and Mrs X’s son missed out on provision. The Council has agreed to apologise to Mrs X and make payments to her.

The complaint

1. Mrs X complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for her son, Y. She also complained the Council failed to provide Y with suitable alternative provision.
2. Mrs X says the Council’s faults have impacted Y’s educational progress. She also says it has had a financial and emotional impact on the family.

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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. 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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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What I have and have not investigated

7. I have investigated matters up to April 2025 (which is when the Council issued Y’s final EHC Plan).
8. 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). This means that if a child or young person 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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person 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.
9. Mrs X appealed the lack of placement in Y’s EHC Plan and the provision in the Plan. She said the provision was not specific for Y’s needs. Mrs X’s ongoing concerns about Y’s alternative provision is too closely linked with her appeal to the Tribunal. Therefore, we have no jurisdiction to investigate matters after April 2025.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs 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

Timescales and process for EHC needs assessments

12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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 of the child or the young person within six weeks. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. 

Alternative Provision

14. 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. [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 education provision.
15. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

16. This chronology includes an overview of key events in this case and does not detail everything that happened.
17. Y has special educational needs. The Council received a request to complete an EHC needs assessment for Y from his school in April 2024.
18. The Council wrote to Mrs X at the end of May and agreed to complete an EHC needs assessment. It also sent letters to professionals, including an educational psychologist (EP), and asked for advice within six weeks.
19. Mrs X contacted the Council in September and asked for an update. She also said Y had struggled to return to school.
20. Mrs X’s representative (Ms Z) contacted the Council in October. She said Y’s school placement was at risk of a breakdown and therefore the EHC needs assessment was urgent. She also said Y was on a reduced timetable, which was unsustainable.
21. The school emailed the Council in mid-October. It said Y was not attending. It said it was not an appropriate setting for Y as it could no longer manage his safety and wellbeing. It said it was willing to help with alternative provision arrangements for Y in the interim.
22. The Council sent an email to Mrs X, Ms Z and the school a week later. It said it would mitigate the impact of the delay in dealing with the EHC needs assessment by putting alternative provision in place.
23. Ms Z chased for an update on the alternative provision for Y the following week. The Council responded and said it had sent referrals to tuition companies and was waiting on a response.
24. Mrs X complained to the Council in late October about the Council’s delays in dealing with Y’s EHC needs assessment and its failure to provide Y with alternative provision.
25. The Council emailed Mrs X and Ms Z in early November. It said it had found a tutoring company (Provider A) to provide up to 10 hours per week of tuition for Y. It said it would continue to look for other provision for Y.
26. Y started attending Provider A in November. Mrs X emailed the Council after Y had attended some sessions and said there was a safeguarding incident with a tutor. Mrs X said she had asked for another tutor to work with Y.
27. The Council issued its stage one response to the complaint on 21 November. It said it had arranged alternative provision for Y. It apologised for the delays in dealing with Y’s EHC needs assessment. It said it was receiving a lot of requests, and this was having an impact on the ability of its EPs to provide reports.
28. The Council contacted Mrs X and suggested another provider (Provider B) for Y. Mrs X said she had contacted Provider B, and it had a nurture programme Y could attend. She said she was going to have a meeting with Provider B and would update the Council afterwards.
29. The Council contacted Mrs X and said it had spoken to Provider A. Provider A said it would need to put 2:1 support in for Y after the recent incident. Ms Z responded and said 2:1 support was not in Y’s best interests. The Council responded and said it would give notice to Provider A.
30. Ms Z emailed the Council at the end of November and said Mrs X was happy with Provider B. She also asked whether it had contacted the other provider (Provider C) which it had previously mentioned it had contacted. The Council responded in early December and said it was waiting for a contribution from Y’s school before it could agree to any alternative provision.
31. Mrs X referred her complaint to stage two of the Council’s complaints procedure. She said Provider A was unsuitable for Y and he was not receiving any educational provision.
32. The Council exchanged several emails with Ms Z and Mrs X about alternative provision for Y in December. The Council agreed to provide provision at Providers B and C.
33. Mrs X raised concerns that she could not Y safely at Provider C. The Council made enquiries with Provider C about whether Mrs X could stay on site with Y. It also suggested a risk assessment.
34. The Council contacted Mrs X in January 2025 and said it had not heard anything further from Provider C. It suggested contacting another provider (Provider D). Mrs X said she did not want to introduce another environment for Y. She suggested contacting another provider (Provider E) that she was already privately funding for Y. The Council agreed to ask for funding.
35. The Council emailed Mrs X a few days later. It said Provider C decided not to proceed with the risk assessment. Therefore, the provision would go no further. It asked whether she would like to re-consider Provider D. Mrs X said she was happy to see how Provider B and Provider E went. She said she wanted the Council to focus on issuing Y’s draft EHC Plan.
36. Y started attending Provider B in mid-January for 2.5 hours per week. The Council also agreed funding for one weekly visit at Provider E.
37. The Council emailed Mrs X in late January and said it was taking longer than expected to respond to her complaint. Mrs X responded and said Y was not accessing a full-time education. She said she agreed to Provider B based on its initial offer of three four-hour sessions per week. However, Provider B had now reduced this to one session per week. She also said Y could not access provision at Provider B independently without her for the full session. She said introducing a further provider for Y was not in his best interests.
38. The Council contacted Mrs X in early February. It asked her what alternative provision she wanted as she previously said she did not want to add another provider. Mrs X responded and said she wanted more hours at Provider B.
39. The Council emailed Mrs X in late February. It said it had secured agreement for 7.5 hours per week at Provider B.
40. Mrs X emailed the Council following day. She provided it with a private EP report, speech and language therapy report and occupational therapy report for Y’s EHC Plan.
41. The Council issued Y’s draft EHC Plan in mid-March.
42. The Council issued its final response to Mrs X’s complaint a few days later. It apologised for the delays in responding to the complaint. It also apologised again for the delays during the EHC needs assessment process. It offered £150 for the frustration caused from the delays. It also agreed to reimburse the private EP report. Finally, it said it had recently discussed increasing provision at Provider B.
43. The Council issued Y’s final EHC Plan in early April. It left the placement in the Plan blank. Mrs X appealed to the Tribunal about the content and placement in Y’s EHC Plan.

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Analysis

Delays during EHC needs assessment

44. We expect councils to follow statutory timescales when dealing with a request for an EHC needs assessment. In this case, the Council significantly exceeded the timescales. It should have issued Y’s final EHC Plan by early September 2024. It did not do so until early April 2025. This is a seven-month delay and is fault.
45. I acknowledge the difficulties the Council has faced in getting EP advice which is a national problem. However, the Council still has a duty to follow statutory timescales. That it has not done so is a service failure. This service failure has caused Mrs X frustration and uncertainty. Our guidance says we should recommend £100 per each month of the delay. This is £700. The Council has already paid Mrs X £150. Therefore, it should pay her a further £550.
46. In its response to my enquiries, the Council has explained it restructured its special educational needs department in March 2025. It allocated further funding to increase the number of permanent EPs. Recruitment is ongoing. It has also secured funding since April 2025 to commission associate EPs. The Council is taking significant steps to address the delays, and I have therefore not recommended any service improvements.

Alternative Provision

47. The Council promptly started looking for alternative provision for Y when it became aware he was no longer attending school in October 2024. It secured alternative provision for him at Provider A in November 2024. It was unfortunate there was a safeguarding incident, which meant Y stopped attending in November. The Council immediately started looking for other provision for Y. Provider C was unsuitable for Y as Mrs X could not stay onsite. The Council secured 2.5 hours per week of provision for Y at Provider B. However, Y did not start attending until mid-January 2025. The Council also funded a weekly visit at Provider E from late January 2025. The delay in securing provision for Y from November 2024 to January 2025 is fault. This meant Y was without the provision he was legally entitled to. It also caused Mrs X frustration and upset, and she had to take on additional caring responsibilities.
48. Mrs X says while Y received some provision from mid-January 2025, it was limited and not full-time provision.
49. I agree with Mrs X that one weekly session at Provider B for 2.5 hours per week, and one weekly visit at Provider E, is limited provision and nowhere near a fulltime education. The Council has not evidenced how it decided such little provision was suitable for Y, especially as it previously funded 10 hours per week of tuition at Provider A in November 2024 and agreed to look for more. This is fault.
50. After Mrs X raised concerns, the Council increased the provision at Provider B to 7.5 hours per week at the end of February 2025. Y continued to attend a weekly session at Provider E. This is still short of a fulltime education. As I have mentioned above, there are no records to show how the Council decided 7.5 hours per week was suitable for Y and met his needs.
51. The Council’s faults outlined in paragraphs 49 and 50 above have caused Y a significant injustice. He engaged well at Provider B, and so it is more likely than not he could have accessed more hours than the Council provided. However, in recommending a remedy, I have also considered that Y may not have been able to access a fulltime education given his needs and that he could not access provision independently from Mrs X. The Council’s faults also caused Mrs X further frustration and upset, and she had avoidable disruption to her daily routine.

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Action

52. By 2 January 2026 the Council has agreed to:

• Apologise to Mrs X for the injustice caused by fault in this statement.
• Pay Mrs X £550 to reflect the delays in dealing with Y’s EHC needs assessment.
• Pay Mrs X £1,675 to reflect the lack of provision for Y from November 2024 to April 2025 and the consequential injustice to her from this fault. We suggest Mrs X uses this payment for Y’s educational benefit.

53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. There was fault by the Council, which caused Mrs X and Y an injustice. The Council has agreed to my recommendations and so have completed my investigation.

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Investigator's decision on behalf of the Ombudsman