Summary: Mrs X complained the Council failed to provide suitable education for her child since May 2022. Mrs X also complained the Council delayed production of her child’s Education, Health and Care Plan and handled her communication poorly. We found fault with the Council delaying for 13 months in production of the Education, Health and Care Plan and for complaint handling delays. We did not find fault with the Council failing to provide suitable education for Mrs X’s child. The Council has offered £1,000 for the distress, time and trouble its delays have caused and offered £8,658 for Mrs X’s child’s lost education. I am satisfied this is a suitable offer to reflect the injustice caused.

The complaint

1. Mrs X complained the Council failed to provide Alternative Provision of education for her child who could not attend school since the summer term of Year 10.
2. Mrs X complained the Council delayed in production of her child’s Education, Health and Care Plan and, when produced, this was incomplete.
3. Mrs X also complained the Council failed to communicate with them and they were ignored repeatedly in their contacts.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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)
10. 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 this decision with Ofsted.

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What I have and have not investigated

11. I have investigated Mrs X’s complaint about the delays in production of the Education, Health and Care Plan. I have exercised my discretion to investigate this matter back to July 2023. This is because the Council had certain timescales allowed to it to produce the Final Education, Health and Care Plan and Mrs X would only have known to complain after these timescales elapsed. Mrs X also exercised an appeal right to the SEND Tribunal causing a delay preventing her complaint to the Ombudsman sooner,
12. I have not investigated any content of the Education, Health and Care Plan. While Mrs X says the EHC Plan is incomplete, the content of an Education, Health and Care Plan is appealable to the SEND Tribunal and outside the jurisdiction of the Ombudsman.
13. I have also not investigated Mrs X’s complaint about the failure of the Council to provide education for her child before June 2023. Mrs X has been aware that her child has not been in education since 2022. Mrs X’s child has since finished secondary school with her final compulsory school day being on 30 June 2023.
14. Mrs X only complained to the Council in July 2024 and brought her complaint to the Ombudsman in January 2025. Mrs X’s child left secondary school nearly 19 months before Mrs X brought her complaint to the Ombudsman. There is no good reason Mrs X could not have brought her complaint to the Ombudsman sooner. This means any failure of the Council to consider its Section 19 duty and provide Alternative Provision of education while Mrs X’s child was in secondary school is outside our jurisdiction to investigate.
15. I have ended my investigation as of 5 March 2025 but the Council’s offer or recommendations extends until the end of the academic year 2024/2025.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. Mrs X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

EHC Plans

18. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
19. 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 of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the Council declines to carry out an assessment for an EHC Plan a person may appeal to the SEND Tribunal. If the Council concedes this appeal, and agrees to issue an EHC Plan following assessment, it must produce the EHC Plan within 14 weeks of conceding the appeal.  

20. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
21. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
22. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Providing education

23. 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.
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
25. 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)
26. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaints procedure

27. The Council’s complaints procedures says it will provide a response within 28 calendar days of receipt of a complaint.
28. The Council says where a complaint response fails to resolve or conclude a complaint it will be reviewed by the Complaint Officer or an appropriate senior manager. The Council sets no timescale for this response in its complaints procedure.

What happened

29. On 12 July 2023, Mrs X applied to the Council for an EHC Plan needs assessment for her child, who I shall refer to as Y. Mrs X reiterated to the Council that Y had not been attending school and she wanted an EHC Plan and Alternative Provision of education.
30. The Council acknowledged Mrs X’s application on 18 July 2023.
31. On 17 August 2023, the Council declined to assess Y for an EHC Plan. The Council detailed how Mrs X could appeal this to the SEND Tribunal.
32. Mrs X lodged her appeal to the SEND Tribunal in October 2023. On 10 November 2023, the Council settled the appeal through a Consent Order in which it agreed to undertake and EHC Plan needs assessment of Y.
33. Mrs X lodged a complaint with the Council on 18 July 2024. Mrs X said Y had been out of education since May 2022 and the Council had failed to provide suitable education for Y.
34. On 21 August 2024, the Council issued a complaint response. The Council said it had rejected a tuition request for Y in November 2022 and February 2023. The Council said it told Mrs X in May 2023 that Y’s school should be providing education and Y left enrolment in July 2023. The Council apologised for the delay in producing Y’s EHC Plan.
35. Mrs X sought consideration of her complaint again on 19 September 2024. Mrs X disputed the school was responsible for providing education for her child and said the Council should have acted. Mrs X also reiterated the Final EHC Plan was overdue.
36. On 20 October 2024, the Council issued a second complaint response. The Council said it was the school’s responsibility to contact the Council about children who cannot attend school. The Council said Y’s difficulties with school did not amount to her being unable to attend but justified a differentiated curriculum. The Council apologised again for the delay in producing Y’s Final EHC Plan.
37. The Council produced a draft EHC Plan for Y on 13 November 2024.
38. The Council issued a Final EHC Plan on 5 March 2025.

Analysis

EHC Plan delays

39. The Council had six weeks from Mrs X’s application for an EHC Plan to decide whether to assess Y for an EHC Plan. Since Mrs X made her application on 12 July 2023, the Council had until 23 August 2023 to decide whether to assess Y. The Council decided not to assess Y on 17 August 2023. This was within the statutory timescales, and I do not find fault.
40. When the Council decided not to assess Y for an EHC Plan it told Mrs X. The Council was entitled to decide not to assess Y and I cannot question this decision. The Council did not need to take any action from 17 August 2023 until it conceded the appeal to the SEND Tribunal on 10 November 2023. The Council was not bound by any timescales, and I do not find fault with the Council’s actions.
41. If a council concedes an appeal to the SEND Tribunal, and agrees to assess a child for an EHC Plan, it has 14 weeks to produce the final EHC Plan from the date it concedes the appeal. This 14 week timescale is only applicable when a council decides, following assessment, that it will produce an EHC Plan. Since the Council decided to produce an EHC Plan for Y following its assessment, the Council had until 16 February 2024 to produce the final EHC Plan. The Council only produced this final EHC Plan on 5 March 2025. The Council took 13 months outside the statutory timescales to produce the final EHC Plan; this is fault.

Complaint handling

42. Mrs X lodged her complaint with the Council on 18 July 2024. The Council’s policy says it will provide a response in 28 calendar days. The Council only provided its response on 21 August 2024; this meant the Council’s response was six days outside its complaint timescales.
43. Mrs X requested consideration of her complaint at the next stage on 19 September 2024. The Council’s policy has no set timescales for this response. However, it is suitable to use the same 28 day timescale for responses previously detailed in the Council’s complaints procedure in the absence of a different timescale. The Council provided its response on 20 October 2024; this was 3 days outside the complaint timescales.
44. In total, the Council delayed handling Mrs X’s contacts by 9 calendar days; this was fault.

Alternative Provision of education

45. A council only has to consider its duty to provide Alternative Provision of education for a child until the final Friday of June in the year that a child turns 16. As noted in paragraph 13, this was on 30 June 2023 for Mrs X’s child.
46. Once a child enters post-16 provision, there is no duty on a council to provide Alternative Provision of education for a child. Since the Council had no duty to provide Alternative Provision of education for Y, I cannot find fault with the Council for Y’s lost educational provision since September 2023.

Recommendations

47. In the Council’s response to the Ombudsman, it has accepted fault and offered a financial remedy for the issues outlined in Mrs X’s complaint.
48. The Council has offered £500 for distress and £500 for time trouble that its fault has put Mrs X to. This offer is in line with the Ombudsman’s guidance on recommendations. It considers the length of delay in this matter in finalising Y’s EHC Plan and the short complaint handling delays and the impact this would have had on both Mrs X and Y.
49. While the Council had no duty to provide Alternative Provision of education, the Council has recognised that Y missed out on access to post-16 educational provision. The Council has recognised that this was a key academic time for Y and will have caused an impact on her in being able to achieve suitable qualifications.
50. The Council has offered a payment of £4,329 per year for the academic years 2023/2024 and 2024/2025 for Y’s missed education, totalling £8,658. Since the Council has made this offer, I am including this within the recommendations of this case despite not finding fault for this time period.

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Action

51. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and pay her £1,000 in recognition of the avoidable, distress, time and trouble its delays caused her.
• Provide a payment to Mrs X of £8,658 in recognition of Mrs X’s child’s lost education for the academic years 2023/2024 and 2024/2025.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. There was fault leading to injustice. As the Council has suggested suitable recommendations and agreed to my findings, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman