Summary: The Council delayed issuing the Education, Health and Care (EHC) Plan for Ms X’s grandchild, Y. It also delayed responding to Ms X’s complaint. The Council has agreed to apologise and make a payment to Ms X. The Council was not at fault for not arranging alternative provision when Y stopped attending school. The Council was entitled to allow the school to try and reintegrate Y. We cannot investigate Ms X’s complaint about Y’s education from September 2024 as Ms X had appealed to the special educational needs and disabilities (SEND) Tribunal and the matters are linked.

The complaint

1. Ms X complained the Council failed to arrange a suitable alternative education for her grandchild, Y, when they stopped attending school. She also complained the Council delayed carrying out an Education, Health and Care (EHC) needs assessment and issuing an EHC Plan. She said Y missed out on an education and the provision in their EHC Plan, causing her distress and frustration. She wants the Council to review its practices and compensate her.

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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 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)
4. 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)
5. 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

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy, guidance and our guidance on remedies, published on our website.
7. Ms X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Law

Education, Health and Care (EHC) Plans

8. 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. 
9. 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. 
• 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 Tribunal.
• 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 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).  

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement;
• psychological advice and information from an Educational Psychologist (EP); and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

Those consulted have a maximum of six weeks to provide the advice. 

Alternative provision

11. 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.
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
13. 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)

The SEND Tribunal

14. 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.
15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

16. 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)
17. 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.
18. 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.

The Council’s complaint process

19. The Council operates a two-stage complaint process. It says it will respond to stage one and stage two complaints within a maximum of 20 working days for each stage. If a complaint is complex and the Council needs longer to respond it says it will let the complainant know.
20. The Council usually requires a person to request a stage two within 20 working days of receiving their stage one response. It has discretion to accept requests outside this timescale. The Council will not progress a complaint to stage two if it decides it has followed the relevant law, policies or procedures.

What happened

21. Ms X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for her grandchild, Y, in December 2023. The Council refused the request in January 2024. Ms X entered mediation with the Council and appealed to the Tribunal.
22. In March 2024 Ms X said Y stopped attending school A. The Council agreed to assess Y on 25 April 2024, following the receipt of new information. It requested professional advice for its assessment on the same day. During this time school A attempted to reintegrate Y back into school and agreed a part time timetable for Y from May 2024.
23. On 10 June 2024 an educational psychologist (EP) returned their advice to the Council. A few days later Ms X complained to the Council. She said Y had been without an education since March 2024 and the Council had delayed issuing Y’s EHC Plan. The Council issued a draft EHC Plan on 10 July 2024 and started consulting with placements. School A said it could meet Y’s needs.
24. The Council responded to Ms X’s complaint on 6 September 2024. It apologised for the delay in issuing Y’s EHC Plan. It said this was due to a combination of a late EP report and a delay presenting the information to its panel. It said it could not respond to issues between Ms X and school A. The Council issued Y’s final EHC Plan on 11 September 2024. It named school A as Y’s educational placement.
25. Ms X appealed the provision and placement in Y’s Plan to the SEND Tribunal. She also asked the Council to consider her complaint at stage two of its complaint process. The Council accepted it had not responded to every aspect of Ms X’s complaint at stage one of its complaint process and said it would issue an additional stage one response.
26. Y’s annual review took place on 28 November 2024. It noted that Y had returned to school A full time from September 2024 with good attendance, but this had started to decline. School A said it was confident it could address the issues and said it felt Y was feeling overwhelmed by returning to school A. The Council agreed to amend Y’s EHC Plan following the review.
27. The Council issued its new stage one response in January 2025. It said it was satisfied school A had put measures in place to support Y when they had stopped attending school. This included a part time timetable from May 2024. It said the issues around Y’s attendance and education were for the school to address.
28. The Council issued the amended final EHC Plan on 2 February 2025. It named school A but said Y would transfer to a new school in September 2025. The amended plan was added to Ms X’s appeal to the Tribunal.
29. On 19 February 2025 the Council issued its final complaint response. It accepted its original stage one response was incomplete and its additional response delayed. It said a suitable education had been available to Y at school A and Ms X had now appealed the placement to the SEND Tribunal. Ms X remained unhappy and complained to the Ombudsman.
30. Y started at the new school in September 2025.

My findings

EHC Plan delay

31. The Council agreed to assess Y on 25 April 2024 and asked the EP for advice on the same day. The EP returned their advice on 10 June 2024, four days after they should have done. While this is technically a delay, I do not consider it impacted the Council’s ability to issue Y’s EHC Plan within the statutory timescales.
32. The Council should have issued Y’s EHC Plan within 14 weeks of agreeing to assess Y. This was 1 August 2024. The Council issued Y’s EHC Plan on 11 September 2024. A delay of five weeks. This was fault and caused Ms X frustration and uncertainty over what provision Y was entitled to, and delayed Ms X’s right of appeal to the SEND Tribunal.

Alternative provision

33. Ms X complained the Council failed to arrange a suitable alternative education when Y stopped attending school in March 2024 and then failed to secure the provision in Y’s EHC Plan from September 2024. When Y stopped attending school A, it attempted to reintegrate Y with a part time timetable from May 2024. Y returned to school in September 2024, and the annual review noted Y’s attendance had improved.
34. Between March and September 2024, the Council was entitled to decide that school A was available and accessible to Y, and to allow school A to try and reintegrate Y rather than pursue alternative provision. School A said it could meet Y’s needs and had demonstrated moderate success with Y returning to school full time in September 2024. The Council was not at fault.

Ms X’s appeal to the Tribunal

35. The Council issued Y’s EHC Plan in September 2024. Ms X appealed the provision and placement to the SEND Tribunal. The law says we cannot investigate a complaint about a lack of special educational provision, or alternative educational provision when it is linked to a person’s disagreement with their EHC Plan. The provision in Y’s EHC Plan was intended to be delivered by school A. This continued to be the case even when the Council amended the Plan in February 2025. While Y stopped attending school again during this time, I cannot investigate any lack of provision as it is linked to Ms X’s appeal to the SEND Tribunal.

Ms X’s complaint

36. Ms X complained to the Council on 13 June 2024 and provided additional complaint information on 22 June 2024. The Council did not respond at stage one of its process until 6 September 2024. This was outside the 20 working days set out in the Council’s complaint process. The Council was at fault.
37. When Miss X asked the Council to consider her complaint at stage two of its complaint process, the Council accepted it failed to address all of Ms X’s complaint in its original stage one response. However, it decided to issue an additional stage one response rather than follow its process and consider Ms X’s complaint at stage two of its process. This was fault. The Council had an opportunity to address Ms X’s concerns at stage one of its process and should have then accepted her stage two request.
38. The Council issued its additional stage one response after 66 working days and eventually issued a stage two response on 19 February 2025, meaning its total consideration of Ms X’s complaint took over six months. The Council’s failure to fully consider Ms X’s original stage one complaint, its insistence on repeating stage one and the subsequent delays caused Ms X frustration and time and trouble as she chased the Council for a complaint outcome.
39. The Ombudsman has found fault with the Council in several cases for repeated complaint handling failures regarding SEND. The Council has since introduced additional quality checks and reminded staff of the importance of the quality and timeliness of its complaint responses. I have recommended a service improvement so the Council keeps us updated on its progress in this area.

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Action

40. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X to recognise the frustration, uncertainty and time and trouble caused by its delay issuing Y’s final EHC Plan and the failures identified in its consideration of Ms X’s complaint. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. Pay Ms X £350 to recognise the frustration, uncertainty and time and trouble caused by its delay issuing Y’s final EHC Plan and the failures identified in its consideration of Ms X’s complaint.
41. Within three months of the final decision the Council has agreed to review its progress on its work to improve the timeliness and quality of its SEND complaint responses. It will provide the Ombudsman with an update on its progress and action plan to address any continued failings.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman