Summary: Ms Y complains the Council failed to ensure her child, who I will call D, received suitable education when they were unable to attend school full-time. She also complains about the Council’s decision to refuse to issue an Education, Health and Care Plan for D. There is fault in the first part of Ms Y’s complaint because the Council cannot demonstrate that it properly considered the request for D to receive alternative education, which created uncertainty. We cannot investigate the initial decision not to issue a plan because this carried a right of appeal which Ms Y used. However, we have found some delay in the Council’s issuing of the plan causing injustice which the Council has agreed to remedy.

The complaint

1. Ms Y complains the Council failed in its legal duty to ensure that her child, D, received a suitable education when they were medically unfit to attend school.
2. Ms Y also complains about the Council’s refusal to create and issue an EHC Plan for D.

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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. 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)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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 the complaint as summarised in paragraph one of this statement.
8. I have not investigated the complaint summarised in paragraph two of this statement because the decision not to issue an EHC plan carried a right of tribunal appeal which Ms Y used.
9. I have not investigated the actions of D’s school. This includes the initial failure to request alternative provision and the reported non-compliance with any recommendations made by the Council. The LGSCO has no jurisdiction to investigate internal school matters for the reasons explained in paragraph five of this statement.

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How I considered this complaint

10. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
11. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. 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 found

Relevant law and guidance

Section 19 duty and alternative provision

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
15. When considering whether to provide alternative provision, councils must have regard to statutory guidance: “Arranging education for children who cannot attend school because of health needs” (Dec 2023). This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged to deliver suitable education outside of school.

EHC timescales

16. 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 of the request.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the SEND Tribunal.
• 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).

17. In the event the Council refuses to issue an EHC plan following assessment, the parent has a right to appeal that decision. The first stage of the appeal process is usually mediation. Unless different timescales have been agreed by both parties in the mediation agreement, the Council must comply with legal deadlines as set out in Regulations 42 and 44 of the Special Educational Needs and Disability (SEND) Regulations 2014.
18. If parties agree that the Council will carry out an EHC needs assessment, the Council must notify the parents within two weeks that the assessment is starting. If, following this assessment, the Council then decides not to issue an EHC plan it must notify the parents within ten weeks. If the Council decides an EHC plan is necessary, it must send a finalised EHC plan within 14 weeks of the mediation agreement. 

What happened

19. Ms Y has a secondary school aged child, who I will call D. At the time of the matters complained about, D was on the roll of a mainstream school. D changed schools in February 2024. Ms Y says D missed 44 days of school between February and July 2024.
20. In March 2024 the school placed D on its SEN register.
21. On 1 July 2024 Ms Y made a request for D to be assessed for an EHC plan. D’s school also made a request on 11 July 2024 and sent information to the Council to support the request.
22. The Council’s panel considered the request on 12 August 2024. The panel noted that D’s school attendance was 50% for the previous term and decided that an EHC assessment would help to understand D’s needs and how to meet them.
23. As part of the assessment, an Educational Psychologist (EP) produced a report on 10 October 2024 setting out their views about D and how their needs could be met in school.
24. The Council’s panel considered D’s case again on 6 November 2024. The panel concluded: “[D] has struggled with [their] emotional health at times, [they] are academically able and has a lot of strengths. The EP report is very clear that provision required can be met within SEN support, provision of an EHCP is declined”.
25. The Council wrote to Ms Y confirming its decision to refuse the EHC plan and provided Ms Y with a right of appeal. The letter also advised: “[the school] are advised to implement the provision outlined in the report and then follow this up at their next planning meeting with their link specialist teacher and Educational Psychologist, should they have further concerns”.
26. Ms Y challenged the decision and attended mediation with the Council on 10 December. Following this, the Council agreed to arrange a new EP assessment for D. Ms Y also submitted new evidence.
27. The following week, D’s school emailed the Council to ask for an update on a referral it said it made in September 2024 for D to receive alternative provision on medical grounds. There is no evidence of a referral received by the Council in September.
28. The Council says its panel considered a request for medical provision on 6 January 2025. It says the panel considered the available evidence but decided there was no clear medical need and that it would provide advice to the school about ways to support D. There is no evidence of this panel discussion.
29. Following this decision, Ms Y submitted a complaint to the Council.
30. On 10 February 2025, an EP assessed D in school. The EP then produced their updated report on 12 February 2025.
31. The Council’s panel considered the new EP report on 26 February 2025. The panel concluded: “There is more information included in the updated EP advice about the impact of [D’s] sensory needs and [their] neurodivergence, therefore, Panel agree to issue an EHCP and consider that a CCN [complex communication needs] provision would be suitable”.
32. On 27 February 2025 the Council wrote to Ms Y confirming its decision to issue an EHC plan for D.
33. The Council issued the draft EHC plan on 18 March 2025 and the final EHC plan on 16 April 2025. In Section I, the Council named the mainstream school where D was already on roll at. Section F outlined additional provision which the school needed to deliver to meet D’s assessed special educational needs.

Was there fault by the Council causing injustice to Ms Y and D?

Education, Health and Care planning

34. Ms Y complains the first EP report commissioned by the Council was inaccurate and did not fully reflect D’s needs. She says the errors in the EP report directly influenced the Council’s initial decision not to issue an EHC plan for D. This decision carried a right of appeal.
35. The law says we cannot look at anything which happened before the appeal right started which could be considered by the Tribunal. This includes the assessment process, such as which reports and documents the Council obtained. This is because any claimed injustice caused by alleged inaccuracies or misrepresentations in reports is that the EHC plan does not reflect the child’s needs to be met. This is a matter which can be appealed. Secondly, because the Tribunal has wide powers and can order reports to be completed.
36. This investigation has therefore focussed on the timeliness of the assessment and whether any delay caused injustice to D. The Council has already accepted there was delay in notifying Ms Y of the decision not to issue an EHC plan for D. According to the statutory timescales, the Council had 16 weeks to confirm its decision following the request for a needs assessment made on 1 July 2024. The relevant deadline was therefore 21 October 2024. The Council notified Ms Y on 7 November 2024. The Council has offered a payment of £500 in recognition of that two-week delay.
37. There was further delay by the Council following its agreement to re-assess D. In accordance with the statutory timescales, the mediation agreement required the Council to carry out further assessment and issue an EHC plan within 14 weeks of the agreement. The relevant deadline was 18 March 2025. The Council issued D’s final EHC plan on 16 April 2025 which amounts to four weeks of delay.
38. Having considered the Council’s response to my enquiries, I am satisfied that delay was mostly due to the wait times associated with allocating a new EP. For this reason, our remedy should be in line with the LGSCO’s guidance which suggests £100 per month of delay.
39. The Council has already proposed a financial remedy of £500. I consider this is a suitable remedy for the six total weeks of delay identified. Four of those weeks were due to EP delay and we would therefore recommend £400. The other two weeks of delay caused some injustice as it frustrated Ms Y’s right of appeal. I consider £100 is appropriate for this short delay and so the total recommendation of £500 is in line with our published Remedies Guidance.
40. However, in additional to the personal remedy offered, we have asked the Council to create a plan to outline how it intends to improve the timeliness of EP allocation to reduce delays in the EHC needs assessment process.

Section 19 and alternative provision

41. The Council was entitled to use its professional judgement to decide whether D was fit to attend school and if the school place that D had was available and accessible for them to attend. The courts have explained councils have to consider any evidence about a child’s non-attendance, including medical evidence and evidence from the school, but it can decide what weight to put to that evidence. The relevant cases are R (on the application of D (by his mother and litigation friend)) v A local authority [2020] EWHC 2916 (Admin) and later the case R (D) v Hampshire County Council [2021] ELR 78.
42. However, we may criticise a Council if there is no documented evidence of its considerations following a request for alternative provision under Section 19. As part of those considerations the Council should decide whether the child could continue to attend their allocated school or whether they were unable to attend any school whatsoever. As mentioned in the paragraph above, it would be for the Council to decide how much weight to give to any medical evidence provided in support of a request for alternative provision.
43. In this case, although the Council asserts there was a panel meeting held on 6 January 2025 to discuss the school’s request for D to receive alternative provision on medical grounds, the Council has been unable to provide any record of that panel meeting. This is fault because the Council failed to consider whether it had duties under Section 19 to arrange suitable alternative education during the period in question. However, as the Council later named the same school in D’s final EHCP, it is possible that the Council continued to regard the school as both available and accessible, albeit with additional support for D.

44. Where fault by a council has resulted in a loss of educational provision, we usually recommend a financial remedy of between £900 and £2,400 per school term, reflecting the impact of that loss. If the child would not have been able to manage full-time education, or received part-time education instead, this amount may be adjusted proportionally to reflect the level of provision that should have been delivered. In situations where it is not possible to say, on the balance of probabilities, whether the Council would have accepted that a section 19 duty applied, we may instead recommend a symbolic payment to recognise the uncertainty caused by the failure to make a timely and documented decision.
45. The fault in the Council’s record keeping creates uncertainty because we cannot say on the balance of probabilities whether D’s allocated school continued to be available and accessible for them to attend during the period in question. The Council has agreed to make a symbolic payment in recognition of that uncertainty.

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Action

46. Within four weeks of my final decision, the Council has agreed to:
• Apologise for the fault identified in this statement. 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 the apology I have recommended.
• Pay £300 in addition to the £500 already offered (£800 in total). This is in recognition of the uncertainty caused by the Council’s failure to document its decision making about the request for D to receive alternative provision.
47. Within twelve weeks of my final decision, the Council will also:
• Remind relevant officers of the need to clearly record decisions about requests for alternative provision under Section 19 of the Education Act. The record made by the officers should outline the Council’s rationale for any such decisions and particularly with reference to the availability and accessibility of the child’s allocated school. The Council may issue this reminder via a staff briefing or team meeting and will provide us with evidence of this.
• Create a long-term plan outlining how it intends to improve access to EPs. Once created, the Council should share the plan with the relevant scrutiny committee or panel for consideration.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice which the Council will remedy with the actions outlined in the section above.

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Investigator's decision on behalf of the Ombudsman